Gujarat High Court
State Of Gujarat vs H.A.Upadhyay And Company ... on 8 December, 2022
Bench: Biren Vaishnav
C/SCA/6729/2013 ORDER DATED: 08/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6729 of 2013
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STATE OF GUJARAT & 1 other(s)
Versus
H.A.UPADHYAY AND COMPANY ENGINEERS AND CONTRACTORS
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Appearance:
MS. DHWANI TRIPATHI, ASSISTANT GOVERNMENT PLEADER for the
Petitioner(s) No. 1,2
MR HK PARMAR(1220) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 08/12/2022
ORAL ORDER
1 Admittedly, the issue is covered by an order dated
12.01.2022 passed in Special Civil Application No. 10501
of 2014, the relevant paragraphs of which read as under:
"2. The impugned order passed by the Gujarat
Public Works Contracts Disputes Arbitration
Tribunal, Ahmedabad dated 21.12.2010 in
Transferred Arbitration Reference No. 2 of 1998, is
produced thus:
"The learned advocates for the parties submitted
that this case is squarely covered by the judgment of
the Hon'ble Supreme Court in case of V.A. Tech.
Escher Wyas Floval Ltd. VS. M.P.S.E. Board & Anr.
reported in 2010 Arb. W.L.J. 116 (SC), and agreed
that this case be disposed of in terms of the
aforesaid judgment of the Hon'ble Supreme Court as
C/SCA/6729/2013 ORDER DATED: 08/12/2022
the present Reference is not maintainable before
this Tribunal.
In view of the above, this Reference is disposed of in
terms of aforesaid judgment."
3. This Court by an order dated 19.08.2015 passed
the following order:
"The learned advocates appearing for the
parties state that in view of the judgment of the
Apex Court in the case of Madhya Pradesh
Rural Road Development Authority & Anr. Vs.
L.G. Chaudhary Engineers and Contractors,
reported in (2012) 3 SCC 495, the issue is
referred to the Larger Bench of the Apex Court.
Hence, the matter to be listed only after a note
for filing is filed by either side."
4. Heard Ms. Dharitri Pancholi, the learned
Assistant Government Pleader appearing for the
writ-applicants - State and Mr. H.J. Karathiya, the
learned counsel appearing for the respondent.
5. Mr. H.J. Karathiya, the learned counsel appearing
for the respondent has candidly placed on record the
judgment rendered in the case of M.P. Rural Road
Development Authority v. L.G. Chaudhary Engineers
and Contractors reported in (2018) 10 SCC 833 (in
Civil Appeal No. 974 of 2012 dated 08.03.2018),
wherein, in para-14 to 16, the Hon'ble Apex Court
observed thus:
"14. In view of above, we are of the view that
the State law will prevail in terms of Section
2(4) of the Central Act. The reference under
the State law was valid and could be decided in
accordance with the State. Accordingly, we set
aside the impugned order and restore the
proceedings before the Tribunal. The appeal is,
accordingly, allowed in above terms. C.A.
C/SCA/6729/2013 ORDER DATED: 08/12/2022
No.2751 of 2018 @ SLP(C) No. 11615/2012,
C.A. No.2753 of 2018 @ SLP(C) No.
11617/2012, C.A. No.2754 of 2018 @ SLP(C)
No.11618/2012, C.A. No.2755 of 2018 @
SLP(C) No. 11619/2012, C.A. Nos.2756-2757 of
2018 @ SLP(C) Nos. 11633-11634/2012, C.A.
Nos.2758-2759 of 2018 @ SLP(C) Nos. 11631-
11632/2012 & C.A. Nos.2760-2761 of 2018 @
SLP(C) No. 11628-11629/2012:
15. Leave granted. In view of order passed in
Civil Appeal No.2615 of 2018 (@
SLP(C)NO.16889 of 2012), the impugned order
is set aside and the application(s) filed by the
respondent(s) under Section 11 of the
Arbitration and Conciliation Act 1996 are
dismissed.
16. However, since it is stated that proceedings
are pending before the Arbitrator in pursuance
of the impugned order, the same will stand
transferred to the State Tribunal and the State
Tribunal may proceed further taking into
account the proceedings which have already
been taken. Learned counsel for the
respondent(s) pointed out that in view of
Section 16(2), the objection to the jurisdiction
could not be raised after statement of defence
was filed. This contention cannot be accepted
in view of the fact that the SLP was filed prior
to the filing of statement of defence wherein
this objection was raised."
6. In view of the above ratio laid down by the
Hon'ble Apex Court, the writ-application stands
allowed and order passed by the Tribunal,
Ahmedabad dated 21.12.2010 in Transferred
Arbitration Reference No. 2 of 1998 stands quashed
and set aside and the said Reference is ordered to
be restored to the file of the Tribunal, to be decided
on merits and in accordance with law. Rule is made
C/SCA/6729/2013 ORDER DATED: 08/12/2022
absolute to the above referred extent. Mr.
Karathaiya, the learned counsel appearing for the
respondent submits that the Reference be
expedited, since the Reference is of the year 1998.
The Tribunal shall consider the said request taking
into consideration the backlog / pendency of the
References pending before the Tribunal.
7. With the above directions, the writ-application
stands allowed, in the aforesaid terms."
2 The parties shall be governed by the order so
passed.
3 In light of the above order, the writ petitions are
allowed. The order passed by the Tribunals in Arbitration
Reference Case No. 110 of 1997 stands quashed and set
aside and the said Reference is ordered to be restored to
the respective file of the Tribunal, to be decided on merits
and in accordance with law. Rule is made absolute to the
above referred extent.
(BIREN VAISHNAV, J)
BIMAL
