AC/4/2008 of M/S TEGA INDUSTRIAL LTD. Vs HINDUSTAN COPPER LTD. on 19 February 2009

1. The applicant has filed this application under Section 11 (6) of theArbitration & Conciliation Act 1996 for appointment of an arbitrator. Theapplicant was awarded the work of arbitral and alive services includingthe development of land for construction of Judicial Complex at old jailroad, Bhopal, vide work order dated 26.10.1996. As per the applicant, hehad fulfilled all the contractual liability honestly. However, certainpayments were not made to the applicant. He served a notice on therespondent on 25.8.2007 and requested for appointment of Arbitrator.The same has not been done. The applicant further pleaded that as perClause 11 of the agreement he has a right of appointment of Arbitrator.

2. The non applicant in his reply pleaded that the work awarded to theapplicant comes within the definition of works contract in accordancewith Section 2 of the M.P. Madhyastam Adhikaran 1983, in short “TheAct of 1983”. Hence, the court has no jurisdiction to appoint anarbitrator.

3. The following work was awarded to the applicant as per article ofagreement submitted alongwith the petition :- Scope of work :- The Architects shall provides services in respect of the following works:-

(i) Architectural work and site development,

(ii) Structural Engineering work,

(iii) Sanitary, pluming, drainage, water supply and sewarage work,

(iv) Electrical work,

(v) Heating, ventilation and air conditioning work (HVAC),

(vi) Acoustical work,

(vii) Landscope work,

(viii) Interior designing and graphic signage,

(ix) Any other services.

Clause IV of the agreement prescribes the schedule of services which reads as under:- 3.00 Schedule of services :- For each of the items includes in the scope of work the Architect shallrender the following services :- “3.01 Take clients instructions and prepare the sketch designs with referenceto requirements given and prepare approximate stage -I estimate of cost bycubic measurements or on area basis on the rates at the place of constructionbased on current schedule of rates of M.P., PWD for the place of construction.3.02 Modify the sketch designs incorporating required changes and preparefinal concept designs and model for the Clients approval along with revisedestimates of cost (stage-I).

3.03 Prepare drawings necessary for submission to statutory bodies forsanction.

3.04 Prepare complete working drawings, specification and schedule ofquantities to prepare details estimate of cost (stage -II) and its submission.3.05 Prepare complete working drawings, detailed specifications andschedule of quantities to enable the Client to invite tenders on soundbasis (the client shall compile and issue the final tender document) tocommence work at site and for the proper execution during construction.3.06 Visit the site of work ( on intimation by the client ) to clarify any decision orinterpretation of the drawing and specifications that may be necessary andattend conference and meetings as and when required.”

4. The contract was provided to the applicant relating to construction ofjudicial complex on Old Jail Road, Arera Hills, Bhopal and the applicanthad to provide services for construction of the judicial complex.

5. Section 2 (i) of the Act of 1983 defines the works contract, which readsas under :-

“Works contract means an agreement in writing forexecution of any work relating to construction, repairor maintenance of any building or superstructure,dam, weir, canal, reservoir, tank, lake, road, well,bridge, culvert, factory, work shop power house,transformers or such other works of the StateGovernment or Public Undertaking as the StateGovernment may be notification specify in thisbehalf at any of its stages entered into by theState Government or by an official of the StateGovernment or public undertaking or its official forand on behalf of such public undertaking andincludes an agreement for the supply of goods of

material and all other matters relating to theexecution any of the said works”.

6. From reading of definition of works contract, it is clear that thedefinition includes for supply of goods or material and all other materialrelating to the said work.

7. The applicant was awarded work of supply of service. This court inthe case of Smt. Kamini Malhotra Vs. State of M.P. and others,reported in 2002 (5) M.P.H.T. 245 has held as under in regard toword “any used” in Section 2 (i) of the Act of 1983 :-

19. In the above context learned counsel forrespondents submitted that, the word 'any' has beenexplained in Black's Law Dictionary and it has beenstated therein that the word 'any' has a diversity ofmeaning and may be employed to indicate 'all' or 'every'as well as 'some' or 'one' and its meaning in a givenstatute depends upon the context and subject matter ofstatute. It is often synonymous with 'either', 'every' or'all'. The Supreme Court in Lucknow DevelopmentAuthority v. M. K. Gupta AIR 1994 SC 787 hadconsidered the meaning and purport of word 'any' in thecontext of Consumer Protection Act, 1986 and hasquoted the above definition of the said word in Black'sLaw Dictionary and has observed that its meaning in agiven statute depends upon the context and subjectmatter of the statute.

20. In the instant case, it is clear that the word 'any' inSection 2(i) of the Adhiniyam appears to have a verywide spectrum, because it relates to the execution ofany work relating to construction, repairs ormaintenance of 'any' building or superstructure, tank,canal, reservoir, etc. The repetition of word 'any' in the

said definition prior to the word 'work' as well as beforethe nature of construction, e.g. building, superstructure,etc., clearly indicates the intention of legislature toprovide for its wide amplitude and application.Therefore, it appears that the definition of 'WorksContract' as given in Section 2(i)of the Act, applies toall works of construction, repairs or maintenance of alltypes of buildings, superstructures, reservoirs, tanks,etc.

8. This court has specifically held that Section 2 (i) of the Act applies toall works of all types of building and includes the work which is inrelation to the aforesaid building. In the present case the work of theapplicant was in relation to construction of Judicial Complex. In myopinion, the applicant can not invoke the jurisdiction of this court inregard to appointment of an Arbitrator under Section 11 (6) of theArbitration & Conciliation Act. The applicant has a remedy to approachthe Arbitration Tribunal under the provisions of the Act of 1983. Theapplication is disposed of accordingly.

9. No order as to costs.

(S.K. Gangele) JUDGE

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT ATJABALPUR

Arbitration Case No. 04 of 2008

Vastushilpi Projects & Consultants Private Limited Versus.

Executive Engineer

For applicant

:

For Respondent :

Shri Ajay Ojha, Adv.

Smt. Janvi Pandit, Govt. Adv.

O R D E R

Post for : .12.2015

(S.K. Gangele)

JUDGE

16.12.2015