C/ARBI.

P/48/2022 ORDER DATED: 24/03/2023

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/PETN. UNDER ARBITRATION ACT NO. 48 of 2022

With
R/PETN. UNDER ARBITRATION ACT NO. 49 of 2022
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
In R/PETN. UNDER ARBITRATION ACT NO. 49 of 2022
With
R/PETN. UNDER ARBITRATION ACT NO. 50 of 2022
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
In R/PETN. UNDER ARBITRATION ACT NO. 50 of 2022
With
R/PETN. UNDER ARBITRATION ACT NO. 52 of 2022
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
In R/PETN. UNDER ARBITRATION ACT NO. 52 of 2022
With
R/PETN. UNDER ARBITRATION ACT NO. 53 of 2022
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
In R/PETN. UNDER ARBITRATION ACT NO. 53 of 2022
With
R/PETN. UNDER ARBITRATION ACT NO. 54 of 2022
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
In R/PETN. UNDER ARBITRATION ACT NO. 54 of 2022
With
R/PETN. UNDER ARBITR ATION ACT NO. 55 of 2022
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
In R/PETN. UNDER ARBITRATION ACT NO. 55 of 2022
With
R/PETN. UNDER ARBITRATION ACT NO. 56 of 2022
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
In R/PETN. UNDER ARBITRATION ACT NO. 56 of 2022
==========================================================
SHYAM INFRACOM
Versus
MAHUVA NAGARPALIKA
==========================================================
Appearance:
MR HARIBHAI J PATEL(9810) for the Petitioner(s) No. 1
MR CP CHAMPANERI(5920) for the Respondent(s) No. 1
==========================================================

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 C/ARBI.P/48/2022 ORDER DATED: 24/03/2023

CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI

Date : 24/03/2023

COMMON ORAL ORDER

[1.0] RULE. Learned advocate Mr. C.P. Champaneri waives service

of notice of Rule in each of the petitions on behalf of the
respondent.

[2.0] Leave to amend name of the petitioner in Petition under

Arbitration Act No.53 of 2022 along with Civil Application No.1 of
2022 in Petition under Arbitration Act No.53 of 2022. To be
carried out forthwith.

[3.0] Present petitions though have been filed by different

Contractors but taken up together for hearing in view of the fact
that the sole respondent is Mahuva Nagarpalika and Advocates
appearing for both the parties in this group of petitions are the
same.

[4.0] By way of present petitions under Section 11 of the

Arbitration and Conciliation Act, 1996 (hereinafter referred to as
“Arbitration Act”), the petitioners – Contractors have requested
to appoint sole Arbitrator to resolve the issue which has arisen
pursuant to the work carried out by the petitioners.

[4.1] In response to the tender notice issued by the respondent –

Nagarpalika, the petitioners offered their respective bids which
were accepted. Thereafter, the issue arose and therefore, notices
were issued by the respective petitioners for appointment of
sole Arbitrator as provided under Clause 30 of the tender notice.

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 C/ARBI.P/48/2022 ORDER DATED: 24/03/2023

Since there was vague reply from the respondent – Nagarpalika,

present petitions have been filed.

[4.2] In response to the notice issued by this Court, the

respondent Nagarpalia appeared and filed its affidavit in reply
opposing the relief prayed for.

[5.0] Learned advocate Mr. Haribhai Patel appearing on behalf of

the petitioner in all the petitions would submit that as Clause 30
of the Tender Notice specifically states that if any dispute arises
relating to the allotted work, whether during the progress of
work or after completion of work or abandonment thereof, shall
be referred to the Arbitration Tribunal, Gujarat. He would submit
that as per sub-section (iii) of Section 2(i) of the Gujarat Public
Works Contracts Disputes Arbitration Tribunal Act, 1992
(hereinafter referred to as “Act, 1992”), a ‘public undertaking’
must be such local authority which has been notified in the
official gazette and only in such cases where such local authority
has been notified in the official gazette, provisions of the Act,
1992 would be applicable. He would submit that it is not in
dispute that the present respondent Nagarpalika has not been
notified in the official gazette.

[5.1] In support of his submission, he has relied upon a decision

dated 13.01.2009 of the Hon’ble Apex Court in the case of Om
Construction Co. vs. Ahmedabad Municipal Corporation &
Another delivered in Civil Appeal No.107 of 2009 as well as
several orders passed by this Court considering the fact that such
clause should be read as if the parties have agreed for
appointment of Arbitrator. He, therefore, would submit that

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 C/ARBI.P/48/2022 ORDER DATED: 24/03/2023

present petitions be allowed and sole Arbitrator be appointed.

[6.0] On the other hand, learned advocate Mr. C.P. Champaneri

appearing for the respondent – Nagarpalika has opposed the
present petitions. He would submit that subsequent to
acceptance of bid the parties had entered into Contract
Agreement. As per Clause 18 of the said Contract Agreement, it
was agreed between the parties that only the Mahuva Court
would have jurisdiction to deal with the dispute, if any, arise
between the parties. He, therefore, would submit that present
petitions be dismissed.

[7.0] I have heard learned advocates appearing for the

respective parties. It is an undisputed fact that the respondent
Nagarpalika cannot be treated as ‘public undertaking’ as defined
under Section 2(i)(iii) of the Act, 1992. Section 2(i)(iii) of the Act,
1992 reads as under:

“2. (1) In this Act, unless the context otherwise

require.-
(i)“public undertaking” means-
(iii) such class of local authorities as the State
Government may, by notification in the
Official Gazette, specify;”

[8.0] In view of the aforesaid provision, since there is no

Notification issued under Section 2(1)(i)(iii) of the Act, 1992, the
respondent – Nagarpalika cannot be treated as “public
undertaking”. Hence, the provisions of the Act, 1992 would not
be applicable in the present case.

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 C/ARBI.P/48/2022 ORDER DATED: 24/03/2023

[9.0] It is pertinent to note that when tender notice was issued,

the intention of the respondent – Nagarpalika was clear with
regard to redressal of dispute, if arises between the parties.
Clause 30(1) of the Tender Notice reads as under:

“CLAUSE 30 : (1) Disputes to be referred to Tribunal: The

disputes relating to this contract, so far as they relate to any of
the following matters, Whether such disputes arise during the
progress of the work or after the completion or abandonment
thereof, shall be referred to the Arbitration Tribunal, Gujarat
State;
(2) ….
(3) The provision of Arbitration Act, shall in so far as they are
inconsistent with the provision of this Act, cease to apply to any
dispute arising from a works contract and all arbitration
proceedings in relation to such dispute before an Arbitrator,
Court or authority shall stand transferred to the Tribunal.”

[9.1] Similar type of clause has been dealt with by the Hon’ble
Apex Court in the case of Om Construction Co. (Supra). Hence,
the Hon’ble Apex Court has held that in absence of applicability
of Act, 1992, an Arbitrator can be appointed and disputes can be
resolved. I have also gone through similar type of orders passed
by coordinate Bench of this Court. It is pertinent to note that
Clause 18 of the Contract Agreement does not speak about any
dispute with regard to construction. Only it states that the Civil
Court of Mahuva would have jurisdiction however, the said
Clause is not clear at all. Apart from this, the intention of the
respondent – Nagarpalika to resolve the issue at the time of
issuance of notice, was to get it resolved through arbitration.

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 C/ARBI.P/48/2022 ORDER DATED: 24/03/2023

Hence, present petitions require consideration.

[9.2] Considering the fact that the respondent – Nagarpalika is

common in all the petitions, it is desirable that retired District
Judge is appointed as sole Arbitrator in all these matters.

[10.0] Accordingly, all the petitions are allowed. Mr. M.T.

Unadkat, a former District Judge, residing at B/1803, The
Meadows, Shantigram Adani, S.G. Highway, Ahmedabad is hereby
appointed as the Arbitrator for settlement of the disputes which
have arisen between the parties. Rule is made absolute
accordingly in each of the petitions.

In view of order passed in Petitions under Arbitration,

respective Civil Applications for fixing date of early hearing
would not survive and are disposed of accordingly.

(A.J. DESAI, ACJ)

Ajay

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