Gujarat High Court
Lh Of Decd. Babulal Shankarlal ... vs State Of Gujarat on 4 February, 2022
Bench: Vaibhavi D. Nanavati
C/SCA/15448/2021 ORDER DATED: 04/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15448 of 2021
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LH OF DECD. BABULAL SHANKARLAL PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
PARAS K SUKHWANI(8284) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 04/02/2022
ORAL ORDER
1. The present writ-application is filed by the writ-applicant
under Article 226 of the Constitution of India seeking the
following reliefs :-
"(a) Your Lordships be pleased to admit / allow the present
Petition.
(b) Your Lordships be pleased to issue a writ of mandamus
or any other appropriate writ or writ in the nature of
certiorari or any other appropriate writ, order or direction,
quashing and setting aside the impugned order dated
19/04/2011 passed by Hon'ble Gujarat Public Works Contracts
Arbitration Tribunal in Arbitration Reference No.181 of 1996,
in the interest of justice and restore the Arbitration Reference
No. 181 of 1996.
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(c) Your Lordships be pleased to grant any other and
further relief / order that are deemed necessary in the interest
of justice may be passed."
2. The impugned order dated 19.4.2011 passed by the
Gujarat Public Works Contracts Arbitration Tribunal in
Arbitration Reference No.181 of 1996 is produced thus :-
"Mr.Sukhwani submits that main A.R. No. 181 of 1996 is
squarely covered by Supreme Court Judgment. Hence, though
there is a delay in filing present application for bringing LRs
of deceased B S Prajapati, no useful purpose will be served,
by condoning the delay, after issuing notice to the other side.
It would be only a formality.
Hence, oral prayer for condoning delay in filing above
application for bringing LRs of deceased Prajapati is granted,
and by condoning delay, the applicants-Las of deceased
Prajapati are ordered to be brought on record of above main
A.R. No. 181/1996.
Application allowed accordingly.
At this stage Mr. Sukhwani submitted that he will carry out
necessary amendment in the cause-title of main A R No.181 of
1996, today, itself and after the amendment main A R be
disposed of in terms of the Supreme Court Judgment.
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Permission is granted to carry out the amendment in cause-
title of main A R, to-day itself.
Order accordingly."
3. This Court by an order dated 30.11.2021 passed the
following order :-
"1. Heard Mr.Paras Sukhwani, learned advocate for the
petitioners.
2. Mr.Sukhwani, learned advocate submitted that the Gujarat
Public Works Contracts Disputes Arbitration Tribunal,
Ahmedabad (hereinafter referred to as the "Tribunal") has
passed the order dated 19.04.2011 whereby, the Arbitration
Reference No.181 of 1996 was disposed of in terms of the
judgment of the Apex Court in the case of Va Tech Escher
Wyass Flovel Ltd. vs. MPSE Board reported in (2011) 13 SCC
261. However, subsequently, the judgment rendered in the
case of Va Tech Escher Wyass Flovel Ltd. (supra) was held as
per incuriam. It is further submitted that subsequently, this
Court has passed the various orders wherein, the order of the
Tribunal, rejecting the reference on the ground that it has no
jurisdiction, has been quashed and set aside.
3. Reliance is placed on one of the orders dated 14.06.2017
passed by this Court in Special Civil Application No.6865 of
2017.
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4. Considered the submissions. Issue notice, returnable on
23.12.2021."
4. Heard Mr. Paras K. Sukhwani, the learned advocate
appearing for the writ-applicants and Mr. Ishan Joshi, the
learned AGP appearing for the respondent authority.
5. Mr. Ishan Joshi, the learned AGP 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. 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 @
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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 19.4.2011 in
Arbitration Reference No.181 of 1996 stands quashed and set
aside and the said Reference is ordered to be restored to the
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file of the Tribunal, to be decided on merits and in accordance
with law. Rule is made absolute to the above referred extent.
7. With the above directions, the writ-application stands
allowed, in the aforesaid terms.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
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