Rajesh Singh v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.192 of 2020 ====================================================== Rajesh Singh Son of Nand Kumar Singh Resident of Village- Sarangpur Tole Khalishpur, P.S.- Halai, District- Samastipur, Bihar. ... ... Petitioner/s

Versus

1.

The State of Bihar through the Principal Secretary Minor Irrigation Department, Government of Bihar, Patna.

2.

The Engineer in Chief Minor Irrigation Department, Government of Bihar, Patna.

3.

The Superintending Engineer Circle- Darbhanga (Surya Bhawan) Sahganj Bentha, Darbhanga.

4.

The District Magistrate Samastipur.

5.

The Executive Engineer Minor Irrigation Department, Samastipur. 6.

The Juinor Engineer Minor Irrigation Department, Samastipur. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Ghanshyam Choudhary For the Respondent/s :

Mr.Ajit Kumar (GA-9) ====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH ORAL ORDER 20-02-2020 The present writ petition has been filed for quashing the letter bearing no. 1326 dated 23.07.2019 issued by the Executive Engineer, Minor Irrigation Division, Samastipur, whereby and whereunder the agreement in question has been terminated and the security amount has been forfeited. The petitioner has further prayed for payment of the admitted outstanding dues pertaining to the work he has completed. The learned counsel for the respondent-State has referred to a judgment rendered by the Hon'ble Apex Court reported in AIR 2018 SC 2640 (State of Bihar & Ors. vs. M/s

2/6 Brahmaputra Infrastructure Limited) to contend that in the absence of an agreement stipulating the applicability of the Central Act, the State Act shall apply to the work contract, thus since in the present case there is no reference to the Arbitration and Conciliation Act, 1996 in the agreement, the State Act would apply for the purposes of redressal of the disputes, hence the matter can be referred to the Bihar Public Works Contract Disputes Arbitration Tribunal, Patna. In this connection, yet another judgment reported in AIR 2019 Patna 145 (Kamladitya Construction Pvt. Ltd., Bihar vs State of Bihar & Ors.) has also been referred, paragraphs no. 10 to 13 whereof are reproduced herein below:- "10. Thus, from a bare reading of the aforesaid judgment rendered in the case of Nilkamal Ltd.

3/6 provisions of Arbitration and Conciliation Act, 1996 or in case there is Patna High Court C. REV. No.20 of 2019 dt.09-05-2019 specific stipulation of resolution of the dispute by reference to the State Tribunal, the parties would have a forum of Tribunal under the Bihar State Act, 2008 for resolution of the dispute.

11. The aforesaid view expressed by the judgment dated 17.10.2014 rendered by this Court in the case of Nilkamal Ltd.(supra) was also expressed in a judgment dated 29.3.2017 passed in Request Case No. 45 of 2017 ( M/S Brahmaputra Infrastructure Ltd. Vs. The State of Bihar & Ors.), following the law laid down in the case of Nilkamal Ltd. (supra), however, the State Government had challenged the aforesaid judgment dated 29.3.2017 before the Hon'ble Apex Court and the Hon'ble Apex Court, by the aforesaid judgment dated 22.3.2018 has upheld the view taken by this Court in the case of Nilkamal Ltd. (supra) as also has upheld the judgment dated 29.3.2017 passed in the case of M/S Brahmaputra Infrasture Ltd.

(supra) by a co-ordinate Bench of this Court and has held that in cases where arbitration agreement exists and stipulates applicability of the Central Act, the Bihar Act, 2008 will not apply, however, in absence of an agreement stipulating the applicability of the Central Act, the Bihar Act, 2008 will apply to the works contract. This Court finds that there is no inconsistency in the judgment rendered by the Hon'ble Apex Court dated 22.3.2018 passed in the case of Patna High Court C. REV. No.20 of 2019 dt.09-05-2019 Brahmaputra Infrastructure Ltd. (supra) and the one dated 8.3.2018 passed in the case of M.P. Rural Road Development Authority & Anr. vs. L.G.

4/6 Chaudhary Engineers and Contractors, inasmuch as both the judgments are based on the provisions of the State Act of both the respective States as also have been rendered considering the fact that the M.P. Madhyastham Adhikaran Adhiniyam, 1983 has received the presidential assent whereas the Bihar Public Works Contract Dispute Arbitration Act, 2008 has not received presidential assent.

12. In any view of the matter, judicial propriety and judicial discipline requires this Court to follow the decision rendered by the Hon'ble Apex Court in identical matters and since the Hon'ble Apex Court by the aforesaid judgment dated 22.3.2018, rendered in the case of M/s Brahmaputra Infrastructure Ltd. (supra) has authoritatively laid down the law to be followed with regard to the recourse to be taken in case such as the present one, especially in paragraph-5 thereof, which has already been reproduced herein above in the preceding paragraph, the same is required to be followed in the present case as well.

13. Having regard to the facts and circumstances of Patna High Court C. REV. No.20 of 2019 dt. 09-052019 the case and the law laid down by the Hon'ble Apex Court in the case of M/S Brahmputra Infrastructure Ltd. (supra), it is held that since the agreement in question dated 26.2.2015, governed by the provisions of the Standard Bidding document and Clause-25 of the General Condition of contract, provides for settlement of dispute and arbitration to be conducted in terms of the provisions of the Arbitration and Conciliation Act, 1996, the Bihar Public Works Contract Dispute Arbitration Act, 2008 will not apply

5/6 and the provisions of the Arbitration and Conciliation Act, 1996 will apply. Therefore, since the parties have agreed to resolve the disputes amongst them by taking recourse to the remedy available under Clause-25 of the agreement, i.e in terms of the provisions of the Arbitration and Conciliation Act, 1996, this Court deems it fit and proper to recall the order dated 4.10.2018 passed in CWJC No. 19802 of 2018, whereby and whereunder the petitioner was directed to move the Bihar Public Works Contract Disputes Arbitration Tribunal, and grants liberty to the petitioner to take recourse to appropriate remedy available under the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator for resolving the dispute, which has arisen in between the parties. It is directed accordingly."

The aforesaid position as existing in law is not disputed by the learned counsel for the petitioner. Having regard to the facts and circumstances of the case, considering the submissions advanced by the learned counsel for the parties and taking into account the judgment rendered by the Hon'ble Apex Court in the case of M/s. Brahmaputra Infrastructure Limited (supra) and Kamladitya Construction Pvt. Ltd., Bihar (supra), I deem it fit and proper to grant liberty to the petitioner to approach the Bihar Public Works Contract Disputes Arbitration Tribunal, Patna by filing appropriate reference and in case such a reference is filed within

6/6 a period of four weeks from today, the same shall be adjudicated on merits.

The writ petition stands disposed off on the aforesaid terms.

(Mohit Kumar Shah, J) S.Sb/- U