IRTFEESEXE^" IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARH) REVIEW PETITION N0. R /^Ol^zo APPLICANTS/ RESPONDENTS ^••\ ^•^s "<^- NON-APPLICANT/ ^APPELLANT (^ ^4-) State of Chhattisgarh Through: The Secretary, Department ofWater Resources, D.K.S. Bhawan., Mantralaya, Raipur (C.G) The ChiefEngineer, Water Resources Department, Hasdeo Basin, Bilaspur (C.G) The Superintending Engineer, Shyam Bamai Project Circle, Ambikapur, District Sarguja (C.G) The Executive Engineer, Barnai Canal Division, Ambikapur, District Sarguja (C.G) VERSUS ^"'M/s R.S. Bajwa & Company Through : R.S. Bajwa, S/o LateM.S. Bajwa, Managing Partner, B-4 Minocha Colony, Bilaspur, Tahsil & District Bilaspur (C.G) APPLICATION FOR REVIEW OF THE ORDER EASSED IN WRIT APPEAL N0^8/2008 ON 27/ 010 ARISING OUT OF JUDGEMENT DATED 27/^/2010 PASSED IN WRIT APPEAL N0^08/2008 ^p^, HIGH COURT OF CHHATTISGARH : BILASPUR Review Petition No. 8 of 2011 Applicants State of Chhattisgarh 85 others Versus Non-applicant M/s R. 8. Bajwa & Company (Application for Review of the Judgment dated 27th August, 2010 passed in W. A. No.208/2008) DB: Hon'ble Shri Justice I. M. Quddusi 8& Hon'ble Shri Justice Prashant Kumar Mishra, JJ ^ Shri G. D. Vaswani, Govt. Advocate for the applicants. Shri Mahendra Dubey, Adyocafe for the non-applicant. ORDER (orall (Passed on this 16th day ofMarch, 2011) Per I. M. Quddusi, J. Heard learned counsel appearing for the applicants as well as learned counsel appearing for the non-applicant. • By this petition, the applicants seek review of the order dated . 27-8.2010, passed by this Court in Writ Appeal No. 208 of 2008 (M/s R. S. Bajwa & Company Vs. State of Chhattisgarh 85 4 others), whereby the writ appeal was allowed. The impugned order dated 5.8.2008 passed by the learned Single Judge in W.P.(C) No. 3700/2008 and the order dated 5.5.2007 passed by the learned District Judge, Surguja (Ambikapur) in Execution Proceedings No. 1/07 were set aside and it was directed that the District Judge shall decide the application of the writ appelfant flled for execution of the award dated 22.8.2006 in accordance with law. ® 3. The above writ appeal was filed by the instant non-applicant (writ petitioner) against the order dated 5.8.2008 passed by the learned Single Judge in W.P.(C) No. 3700/2008 dismissing the writ petition challenging the validity of the order of the learned District Judge dated 5.5.2007 passed in Execution Proceedings No. 1/07, whereby the application for execution of the award dated 22.8.2006 was rejected with a finding that the Executing Court has no jurisdiction to execute the arbitration award on the ground that the award was passed by the Arbitrator appointed by the Chief Engineer under clause 51 ofthe contract agreement. 4. The ground in allowing the writ appeal by us was that the Hon'ble Apex Court vide order dated 14.1.2010 passed in Civil Appeal No. 3747/05 fVA Tech Escher Wyass Flovel Ltd. Vs. •('. . ' ' • ., M.P.S.E. Board & another) has held that the Adhiniyam, 1983 and the Arbitration and Reconciliation Act, 1996 can be harmonized by holding that the Adhiniyam, 1983 only applies where there is no arbitration clause but it stands impliedly repealed by the 1996 Act where there is an arbitration clause. Further, in the case of M/s Integral Construction Company Vs. State of Chhattisgarh 85 others - MCC No. 69/2003, it has been held by learned Single Judge that constitution and functioning ftL ^ " •' . - .f ;' ;. • .'.' ! ' of the arbitration tribunal under the Adhiniyamn, 1983 w.e.f. 2.9.2005 would not be a bar for the Chief Justice to pass an order appointing an arbitrator in these proceedings. The Special \ Leave Petition was also filed before the Hon^le Apex Court against the said order which was registered as SLP No. 3942/06 A.1 // // ^. ^^•ss^ '^:¥'"1SS& 1: 6. and the same was dismissed by the Hon'ble Apex Court vide order dated 22.1.2008. Now, in a recent case CivilAppeal Nos 1888 - 1889 of 2011 (arising out of SLP (C) No. 23767-23768 of 2010) {M/s A. P. S. Kushwaha (SSI Unit) Vs. Municipal Corporation, Gwalior and others} Hon'ble Supreme Court has held in paragraph 8 as under : "8. This court, in V.A.Tech Escher Wyass Flovel Ltd. vs. M.P. S.E.'Board (C.A.No. 3746/2005 decided on 14.1.2010 held that the provisions of the Act would apply where there was an Arbitration clause and the provisions of the 1983 Adhiniyam would apply where there was no Arbitration \ clause. In this case it is not in dispute that the contract between l^ie parties contained an arbitration clause (clause 29). The decision of the High Court that the provisions of the 1983 Adhiniyam would apply and sole arbitrator appointed by the designate of the Chief Justice lacked inherent jurisdiction, cannpt therefore be sustained. Though the said Arbitratioq clause provided for reference of disputes to a three member Arbitration Board, the designate chose to appoint a sole arbitrator and, that order dated 11.5.2007 attaiped finality.9? Further, a decision of a Constitution Bench of Hon'ble Apex Court in SABP SB Co. v. Patel Engineering Ltd. {2005 (8) SCC 618} has been referred wherein it is held that aonce the Chief Jusfice or his, designafe appoints an Arbitrator in an application under section 11 ofthe Act, after satisfying himself that the conditions for exercise of power to appoint an arbitrator are present, the arbitral trtbunal could not go behind such decision and rule on its own jurisdiction or on the existence of an arbitration clause. Therefore the contention of the respondents ^^si^^^.-.^^^^saiu,,^..^^ v 8. 9. that the arbitrator ought to have considered the objection relating to jurisdiction and held that he did not have Jurisdiction cannot be accepted," In yiew of the Hon?ble Apex Court's decision in the case of V.A.Tech Escher Wyass Flovel Ltd. vs. M.P. S.E.Board (supra) since in the instant case the Arbitration and Conciliation Act, 1996 was applicable because of the existence of the arbitration agreement and if pursuant to the same the Chief Engineer appointed the sole arbitrator following clause 51 of the agreement, in our opinion there was no illegality therein and in case the Chief Engineer would have denied to appoint the arbitrator and invoke clause 51 of the arbitration agreement, the aggrieved party could approach the Chief Justice under Section 11 of'the Act, 1996 in view of the applicability of that Act. Learned State counsel has contended that this review petition has been filed on the question as to whether clause 51 of the agreement can be enforced once only and the contractor cannot be permitted to invoke Clause 51 of the agreement repeatedly to keep alive a stale and time-barred claim. For this reason, the reference by the Chief Engineer to the Arbitrator and the Arbitration awardpassed by the Arbitrator pursuant thereto is anullity. In Fact the above question cannot be raised in this review petition as well as could not have been raised in the writ appeal which was filed by the non-applicant. The writ appeal or the writ petition before the Single Judge was not filed by or on ^ ! '. •* \ behalf of the State. If the State wanted to raise this question it "^^. '^. ^%. was open for it to challenge the action of the Chief Engineer or the arbitration award, as fhe case may be, on this ground. Therefore, this question is not relevant when the State was not the petitioner or the appellanf. 10. Further, learned counsel for the State also raised another question to the effect that the judgment in the matter of V.A.Tech Escher Wyass Flovel Ltd. vs.M.P. S.E.Board (supra) holds the field only in the matter of operation of Section 9 of the Arbitration and Conciliation Act, 1996. This is also not a question to be decided in this review petition as the judgment in the writ appeal is passed solely on the ratio of the case decided in V.A.Tech Escher Wyass Flovel Ltd, vs. M.P. S.E.Board (supra). 11. The prayer and the grounds mentioned in the review petition ^ L •• . . L .. . . .: ' and argued by learned counsel appear to be misconceived. The applicants have not pointed out any manifest error on the face of record and they have not brought into the notice, any new facts which could not be produced earlier despite diligent efforts made by the applicants. 12. It is well settled principles of law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of the Code of Civil Procedure. It appears that the applicants by presentation ofthis review petition seek'an opportunity to argue the entire case afresh on nierits under the garb of the review petition, which is not permissible and tenable in law. It is well settled principle of law that under the garb of review petition, the applicant should not be permitted to argue the entire case afresh which would '%. •'''!-..'.A amount to convert the review petition into an appeal and the same is not sustainable in law. ( See Sm.t. Meera Bhanjan Vs. Smt. Nirmala Kumar Chowdhary1, Lily Thomas etc. Vs. Unipn of India and others2, Ajit Kumar Rath Vs. State of Orissa and others3, Government of T.N. and others Vs. M. Ananchu Asari and others4 and Kerala State Electricity Board Vs. Hitech Electrothermicsm & Hydropower Ltde, and others5. 13. In view of the above this is not a fit case for review. The review } petition is misconceived; the same is liable to be dismissed and is accordingly dismissed. Sd/- I.M.Quddusi Judge Sd//- Prashant Kumar Mishra Judge Thakur i IAIR 1995 SC 455 2AIR 2000 SC 1650 3AIR2000SC85 4 (2005) 2 SCC 332 5 (2005) 6 SCC 651