9911796707
TMI Blog2016 (2) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... on (d) of section 2 of Madhya Pradesh Madhyastham Adhikaran Adhiniyam 1983 is involved then the matter shall be regulated by the Act of 1983 and the Arbitration Tribunal shall be constituted under section 3 of the said Act and it is this point which is a crucial important in the present petition. In the matter of SPEDRA ENGINEERING CORPORATION ENGINEERS AND CONTRACTORS, BHOPAL VERSUS STATE OF MADHYA PRADESH [ 1987 (6) TMI 398 - MADHYA PRADESH HIGH COURT] the Court has held that the M.P. Madhyastham Adhikaran Adhiniyam, 1983 was a special enactment providing for statutory arbitration arising out of disputes in respect of works contracts. The present is not a works contract as already held above and both the decisions are, therefore, not applicable to the dispute at hand. Similarly considering the fact that the factual matrix pertains to non-extension of the additional period conceded and not being granted which led to the filing of the application under section 9, then there are no hesitation in holding that although the work pertains to construction of Road Dewas Bypass road starting from 159/4 of Bhopal - Ujjain Road (SH-18) and joining Km. 577/6 of Agra-Bombay Road (NH-3) interse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncing, truck parking lay-bye and longitudinal drains etc. as fully detailed in the petition. The project was to be under the B.O.T. Scheme i.e., under the Build Operate Transfer Scheme whereby the Contractor has the right to collect the toll and the other revenue from the vehicles and users of the said Project during the Concession Period. Appellant No. 2 Ashoka Buildcon Limited submitted its bid which was accepted by the respondents vide letter dated 17-4-2001. Thereafter to facilitate the process of financing the Project, appellant No. 1 was incorporated as an SPV by the appellant No. 2 for implementing the Project on the agreed terms and conditions. 2. Thereafter on 3-1-2002 an agreement for execution of the project was entered into inter se by the appellant No. 2 Ashoka Buildcon and appellant No. 1 Ashoka Infraways and the respondents agreed to the arrangement vide letter dated 16-1-2003 (Annexure A/3). Notifications were duly issued on 24-5-2004 and 29-12-2011 (Annexure A/4 and Annexure A/5). The completion certificate was given to the appellants-petitioners on 14-5-2004 and that prior to tins letter me respondent-State Government vide letter dated 9-3-2004 (Annexure A/6) addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y dispute that arises, the matter would be referred to the M.P. Arbitration Tribunal under the Madhya Pradesh Madhyastam Adhikaran Adhiniyam, 1983 ; shall not stand in the way of the appellants-petitioners in prosecuting the First Appeal. The Apex Court held thus:-- The aforesaid observation of the Court will not come in the way of the petitioners in prosecuting First Appeal under section 37 of the Arbitration and Conciliation Act, 1996, being Arbitration Appeal No. 11 of 2015 pending before the Madhya Pradesh High Court. 3. Counsel for the appellant has vehemently urged the fact that the action of the respondent was grossly arbitrary, unjust and unreasonable. The failure on the part of the respondent to give the additional days after approval and diminishing the legal and valid claim for 1374 days to a meagre 186 days was in violation of Article 14 of the Constitution of India and the respondents themselves were responsible for 180 days delay in handing over the said land. Considering the fact that ₹10,26,22,743/- was already admitted but such a lopsided attitude belied the arbitrary approach and defeated the rightful contractual demand for additional 1374 days. It was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 9 of the Act of 1996 which was contrary to the provisions of law. So also Clause 26.2 of the Agreement also contains the Arbitration Clause and the fact that the appellant should have referred the matter to the Arbitration Tribunal under section 17-A of the Adhiniyam 1983 but chose to refer the impugned application under section 9 of the 1996 Act and has, therefore, been rightly rejected. Counsel vehemently urged the fact that Clause (d) of the section 2 of Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 indicates that the dispute has to be regarding claim of money valued at ₹50,0'00/- or more relating to any difference arising out of execution or non-execution of a works contract or part thereof. Similarly section 2(1) of the Adhiniyam 1983 defines Works Contract and three basic ingredients which constitute the works contract are number one, an agreement in writing, one of the parties must be the Government and the agreement must be for construction, replacement, periodical renewal and maintenance of Dewas Bypass road starting from 159/4 of Bhopal - Ujjain Road (SH-18) and joining Km. 577/6 of Agra-Bombay Road (NH-3) intersecting NH-3 in Km. 567/8 and SH-18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection by report dated 9-10-2009 indicating that the advantages were given to the contractor without considering the long completion of work. In fact Counsel vehemently urged that left out work was yet to be certified despite which authorization for collection of toll of 103 and 77 days for the additional work was given. 7. Thereafter the Committee comprising of the Chief Engineer, BOT, MPRDC, Chief Engineer, MP PWD, Ujjain Zone and the Joint Director, Finance Department scrutinised the entire matter in the meeting dated 28-9-2011 and accepted that the additional work of ₹10.26 crores was done by the petitioner. The calculation of the toll days was not undertaken as per Annexure-H, Clause No. 22.7. In its next meeting on 28-12-2011 bifurcating the undone work from the total undone work; it was found to be 9.4 Crores. Therefore, a further Committee was constituted and held a meeting on 27-8-2013 and days calculated were 366 as per the terms of the agreement. The Committee also on the said date held that 77 days and 103 toll days calculated by the earlier committee were erroneous and had to be subtracted and calculated appropriately as fully stated in the minutes of meeting. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Court of the A.D.J, returning the application for presentation to proper forum, affirmed. 11. Counsel for Respondent has vehemently urged the fact that a Full Bench decision in the matter of Shri Shankaranarayana Construction Company v. State of M. P. and others, 2008(1) M.P.L.J. (F.B.) 78 : 2007(4) MPHT 444 (F.B.) has categorically held that the 1996 Act expressly saves the provisions of the 1983 Adhiniyam in sub-sections (4) and (5) of section 2 of the 1996 Act, both in respect of statutory arbitrations and arbitrations pursuant to arbitration agreements in respect of disputes arising out of works contracts, from the provisions of Part I of the 1996 Act, which are not inconsistent with the provisions of 1983 Adhiniyam. Hence, the provisions of the 1983 Adhiniyam are not repugnant to the provisions of the 1996 Act and are not void and do not stand impliedly repealed by the 1996 Act. 12. Counsel for the respondents has referred to the Farlex Financial Dictionary to state that a concession agreement is an agreement in which a Government especially a local government, gives preferential treatment to a private sector company and then generally speaking, a concession agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (India) Pvt. Ltd. (supra) we have no hesitation in holding that in the present case it was the Ashoka Buildcon who had to utilise and arrange the funds and after completion of the construction recovers the amount invested by it for completion of the project by way of toll. Thus the project is deemed to be leased out to the petitioners for maintenance as well as collection of the toll and regular entry and exit taking care of the project road, till the expiry of the concession period. Similarly although there is no State Support Agreement as such to Annexure A/3, dated 16-1-2003 by which the respondent No. 2 ratified the arrangement, transfer of the enterprise, implementing the project by appellant No. 1 along with appellant No. 2 and entered into the agreement on 3-1-2002 for execution of the project is indicative of the fact that the disputed agreement was a concession agreement. Similarly considering Clause 22.1.1 of the disputed agreement regarding the Bankability of the Agreement appears to be tripartite security and in case of termination of the agreement due to force majeure or otherwise, the payments due and payable to the Entrepreneur would be paid by the Government in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner was also at liberty to employ other contractors for items of works as considered necessary for execution of the project. The petitioner, respondent No. 1 as well as the State Government have entered into an agreement, namely, State Support Agreement on 14-4-2003 in pursuance of the concession agreement. From perusal of the State Support Agreement, it is evident that it forms an integral part of concession agreement. By no stretch of imagination State support Agreement can be termed as 'works contract', and both the aforesaid agreements contain provisions with regard to resolution of dispute under 1996 Act. For this reason also concession agreement cannot be termed as works contract. The dispute between the parties has to be resolved under the provisions of the 1996 Act. (2011) 13 SCC 261, (2012) 3 SCC 513 and Civil Appeal No. 1888-889 of 2011 (SC) A.P.S. Kushwaha (SSI Unit) v. Municipal Corporation, Gwalior and others dated 17-2-2011, Rel. (Paras 11, 12, 18 and 19) 16. Consequently the said case has also considered the fact and dichotomy regarding the resolving of the dispute under the Arbitration and Conciliation Act of 1996 or to resolve the dispute under the Madhya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since in case of termination of contract due to force majeure or otherwise the payments due and payable to the entrepreneur would be paid by the Government and entrepreneur was also requested to open an ESCROW account and deposit all the revenue from the project into it. This variable satisfies the ingredients as put forth by the ratio laid down in the matter of Jabalpur Corridor (supra). 18. Finally considering Clause 26 of the impugned agreement which pertains to settlement of disputes and is of crucial importance to the substantive question raised in the petition as well as appeal, it categorically states that if the dispute regarding the breach or termination thereof exists between the parties and cannot be settled within 30 days, the dispute is referred to arbitration under the provisions of Arbitration and Conciliation Act, 1996 and that the arbitration panel decision shall be final and binding on the parties. However, the provision has been invoked by the petitioners-appellants stating that in section (d) of section 2 of Madhya Pradesh Madhyastham Adhikaran Adhiniyam 1983 is involved then the matter shall be regulated by the Act of 1983 and the Arbitration Tribunal shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
