HINDUSTAN ANTIBIOTICS LIMITED versus MAHARASHTRA HOUSING AND AREA DEVELOPMENT AUTHORITY (MHADA) & ORS. on 4 October 2018

[2018] 12 S.C.R. 747

HINDUSTAN ANTIBIOTICS LIMITED

v.

MAHARASHTRA HOUSING AND AREA DEVELOPMENTAUTHORITY (MHADA) & ORS.

(Civil Appeal No. 10203 of 2018)

OCTOBER 04, 2018

[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]

Arbitration:Dispute between a sick company and theDevelopment Authority – Regarding the land owned by the Company– Writ petition by the Company seeking to resolve the dispute –High Court dismissed the petition holding that the appropriateremedy for the relief was a suit and not a writ petition – On appealdirection by Supreme Court to settle the dispute amicably – Amicablesettlement failed – Request of the parties to refer the matter to soleArbitrator – Held: Various disputes including the issue in the appeal,referred to sole Arbitrator – Sole Arbitrator appointed to decidethe disputes – Appeal disposed of.

Oil and Natural Gas Commission and Anr. v. Collector of Central Excise (1995) Supp 4 SCC 541; Oil and Natural Gas Corpn. Ltd. vs. City & Industrial Development Corporation, Maharashtra Ltd. And Ors.(2007) 7 SCC 39 : [2007] 8 SCR 429 – referred to.

Case Law Reference

(1995) Supp (4) SCC 541

referred to

Para 11

[2007] 8 SCR 429

referred toPara 11

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10203

of 2018

From the Judgment and Order dated 06.07.2018 of the HighCourt of Judicature at Bombay in Writ Petition No. 5122 of 2018.

Debabrata Ray Choudhuri, Sr. Adv., Ranjan Kumar Rai, AmolNirmalkumar Suryawanshi, Chirag M.Shroff, Ms. Sanjana Nangia,Ms. Joyshree Barman, Ms. Monisha Suri, Advs. for the appearing parties.

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AThe Judgment of the Court was delivered byABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed against the final judgment and order dated06.07.2018 passed by the High Court of Judicature at Bombay in WritPetition No. 5122 of 2018 whereby the High Court dismissed the WritBPetition filed by the appellant herein.

3. It is not necessary to set out the entire factual details exceptfew one, which are necessary for the disposal of the appeal.

4. The appellant (Company) is a Government of IndiaCUndertaking, which is controlled and function under the Ministry ofChemicals and Fertilizers, having its registered office at Pimpri, Pune.

5. The appellant (Company) is engaged in the manufacturing oflife saving drugs at affordable prices for the weaker sections of theSociety. One such drug manufactured by the appellant is “Penicillin-G”.

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D6. The appellant (Company) entered into a joint venture withone foreign Company-Royal Gist Brocades, Netherlands for doingbusiness of manufacturing “Penicillin-G”. However, for myriad reasons,it did not do well and the joint venture was forced to close down theiractivities. The matter was then referred to the Board for Industrial &Financial Reconstruction (BIFR), which eventually prepared aErehabilitation scheme under the Sick Industrial Companies (SpecialProtection) Act, 1985 (SICA).

7. The appellant (Company) owns and in possession of 263.57acres of land at Pimpri, Pune on which the factory and the residentialcolony are built. Some land, however, remains lying idle.F

8. The disputes have arisen between the appellant (Company)and the State through its Authority called - Maharashtra Housing andArea Development Authority (MHADA) in relation to the aforementionedland for its disposal etc.

9. The appellant (Company), therefore, in order to resolve thedisputes filed a writ petition in the High Court of Bombay against therespondents (State and MHADA) out of which this appeal arises seekingappropriate mandamus or/and any other writ, order, as the case may be,for disposal of the part of the aforesaid land (plot Nos. 8 and 9).

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10. The Division Bench of the High Court, by impugned order,dismissed the writ petition filed by the appellant (Company) on the groundthat having regard to the nature of the reliefs and averments on whichthey are founded, the proper remedy of the appellant would lie in filingthe suit in the Civil Court and not in filing the writ petition in the HighCourt under Article 226/227 of the Constitution of India. It is this order,which has given rise to filing of this appeal by way of special leave bythe appellant (Company) in this Court.

11. On 20.09.2018, when this matter came up for consideration,we felt that since all parties to the appeal are either Public Undertakingor/and the State and its agencies (MHADA), the matter should beamicably settled by the parties concerned sitting across the table ratherthan to drag the dispute(s) in the Court. It was also felt that it is more sokeeping in view the observations of this Court made in Oil And NaturalGas Commission And Another vs. Collector Of Central Excise,1995 Supp (4) SCC 541 and Oil & Natural Gas Corpn. Ltd. vs. City& Industrial Development Corporation, Maharashtra Ltd. AndOthers, 2007 (7) SCC 39 and the mandate of Order 27 Rule 5 of theCivil Procedure Code, 1908 (hereinafter referred to as “the Code”) whichcast a duty on the Court to ensure that such dispute should be resolvedamicably.

12. The parties were accordingly granted time to report by thenext date of hearing of the outcome of their talk and the mode on whichthe disputes arising between them can be settled. The matter wasaccordingly adjourned for 28.09.2018.

13. The parties, however, on the next date of hearing expressedthat it is not possible to come to any mutually acceptable terms due tomyriad reasons. The parties, however, requested to refer the matter toany sole Arbitrator and left it to the Court to pass appropriate orders inthat behalf including an order appointing an Arbitrator to decide thedispute(s) by an award.

14. On hearing the learned counsel for the parties and keeping inview the nature of the controversy, the observations of this Court madein both the ONGC cases cited supra, the status of the parties andlastly, the mandate contained in Order 27 Rule 5 of the Code, we are ofthe considered opinion that the various disputes which have arisen A

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Abetween the parties including the one which is the subject matter of thewrit petition/appeal be referred to the sole Arbitrator for his decision.

15. We, accordingly, request Mr. Justice R.V. Raveendran- formerJudge of this Court to act as a sole Arbitrator for deciding the dispute(s),which have arisen between the parties to this appeal.

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16. The parties are accordingly directed to obtain the consent ofMr. Justice R.V. Raveendran to act as a sole Arbitrator on the termssuggested by him. Let it be done within 2 weeks.

17. We leave it for the learned Arbitrator to decide the terms ofreference for its adjudication after hearing the parties.

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18. The appeal stands accordingly disposed of.

Kalpana K. Tripathi Appeal disposed of.

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