SCA/24891/2006 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24891 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= PORBANDAR DISTRICT PANCHAYAT - Petitioner(s) Versus RAJWADI CONSTRUCTION - Respondent(s) ========================================================= Appearance : MR HS MUNSHAW for Petitioner(s) : 1, MR HARMISH SHAH for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/12/2008 ORAL JUDGMENT 1. Rule. Shri Harmish Shah, learned advocate waives service of notice of Rule on behalf of respondent. With the consent of the learned advocates appearing on behalf of the respective SCA/24891/2006 2/9 JUDGMENT parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioner Porbandar District Panchayat-original plaintiff has prayed for an appropriate writ, order or direction, quashing and setting aside the impugned order dated 17.9.2005 passed by the learned 5th Additional Senior Civil Judge, Junagadh passed below Exh.32 in Special Civil Suit No.104 of 1996 by which the learned trial court has allowed the said application submitted by the respondent-original defendant by holding that the civil court has no jurisdiction to entertain the suit and consequently the plaint is ordered to be returned to the plaintiff under Order 7 Rule 10 of the Code of Civil Procedure for presentation before the competent court. 3. Petitioner-plaintiff Porbandar District Panchayat had instituted Special Civil Suit No.104 of 104 of 1996 in the court of learned Senior Civil Judge, Junagadh claiming a decree for damages and SCA/24891/2006 3/9 JUDGMENT compensation etc., with respect to the work order for construction of Check-dam on Minavi river near Devana Village, Taluka Kutiyana, District Junagadh. In the said suit the respondent herein-original defendant submitted application Exh.32 purported to be under Order 7 Rule 10 of the CPC submitting that the civil court has no jurisdiction to adjudicate the controversy in the suit in view of the provisions of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 (hereinafter referred to as “the Act”). That the learned trial court allowed the said application Exh.32 by holding that considering Section 13 of the Act, the civil court has no jurisdiction to entertain the suit and accordingly returned the plaint to the petitioner- plaintiff under Order 7 Rule 10 of the CPC for presentation before the competent court. 3.1 Being aggrieved and dissatisfied with the impugned order passed by the learned 5th Additional Senior Civil Judge, Junagadh passed below Exh.32 in Special Civil Suit No.104 of 1996, petitioner- plaintiff has preferred present petition under SCA/24891/2006 4/9 JUDGMENT Article 227 of the Constitution of India. 4. Shri Hemant S.Munshaw, learned advocate appearing on behalf of the petitioner has submitted that considering Section 2(i) and 2(k) of the Act, petitioner-Porbandar District Panchayat will not come within the definition of Public Undertakings for resolving the dispute under the aforesaid Act. It is submitted that no notification has been issued by the State Government including the petitioner-District Panchayat within the definition of Section 2(i) and/or Section 2(k) of the Act for which the civil court's jurisdiction is ousted. It is submitted that the learned trial court has materially erred in holding that even with respect to the dispute between petitioner-District Panchayat and the contractor, the dispute is required to be referred to the said tribunal constituted under the aforesaid Act. It is submitted that the learned trial court has also not properly considered Section 21 of the Act. By making the above submissions, it is requested to allow the present petition. SCA/24891/2006 5/9 JUDGMENT 5. Shri Harmish Shah, learned advocate appearing on behalf of the respondent is not in a position to satisfy the court that how the civil court has jurisdiction to decide the suit and the dispute between the District Panchayat and the respondent – Contractor and how the provisions of the aforesaid Act would be applicable. 6. Heard the learned advocates appearing on behalf of the respective parties. 7. The suit in question is filed by the petitioner-District Panchayat claiming decree for compensation and damages with respect to work order. It was the contention on behalf of the respondent- original defendant that in view of Section 13 of the Act, the civil court would not have jurisdiction to deal with or decide the question which is being raised in the suit. A relevant provisions of the aforesaid Act necessary for determination of the present petition are as under: SCA/24891/2006 6/9 JUDGMENT “Sec.2(i) “public undertaking” means - (i) any company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty-one per cent of the paid up share capital is held by the State Government or any company which is a subsidiary (within the meaning of that Act) of the first mentioned company, (ii) any corporation (not being a company as defined in Section 3 of the Companies Act, 1956 or local authority) established by or under a Central Act or a State Act and owned or controlled by the State Government. (iii) such class of local authorities as the State Government may, by notification in the Official Gazette, specify;” “Sec.2(k) “Works contract” means a contract made by the State Government or the public undertaking with any other person for the execution of any of its works relating to construction, repairs or maintenance of any building or superstructure, dam, weir, canal, reservoir, tank, lake, road, well, bridge, culvert, factory or workshop or of such other work of the State Government or, as the case may be, of the public undertaking, as the State Government may, by notification in the Official Gazette specify, and includes - (i) a contract made for the supply of goods relating to the execution of any of such works, (ii) a contract made by the Central Stores Purchase Organisation of the SCA/24891/2006 7/9 JUDGMENT State Government for purchase of sale of goods.” “Sec.13 (1) Save as otherwise provided by Section 12, no Civil Court shall have jurisdiction to deal with or decide any question which the Tribunal is empowered to deal with and decide by or under this Act and no injunction shall be granted by any Civil Court in respect of any action taken or to be taken in pursuance of any power by or under this Act. (2) No award or interim award or order made or proceedings taken under this Act by the Tribunal shall be called in question in any Civil Court. “Sec.21 The provisions of the Arbitration Act, shall in so far as they are inconsistent with the provisions 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, umpire, court or authority shall stand transferred to the Tribunal.” 8. As per Section 2(i) of the Act, “public undertaking” means such class of local authorities as the State Government may by notification in the Official Gazette specify and as per Section 2(k) of the Act “works contract” means a contract made by the State Government or the public undertaking with any other person for the execution of any of its works SCA/24891/2006 8/9 JUDGMENT relating to construction, repairs or maintenance of any building or superstructure, dam, weir, canal, reservoir, tank, lake, road, well, bridge, culvert, factory or workshop or of such other work of the State Government. Nothing is on record that with respect to the petitioner-District Panchayat and/or with respect to the District Panchayat any notification has been issued by the State Government including such a local authority within the definition of public undertaking. Section 13 would be applicable in a case where the dispute is to be resolved by the Tribunal. 9. Considering the above it cannot be said that with respect to the dispute between the District Panchayat and the Contractor, the jurisdiction is vested in the Tribunal under the aforesaid Act. Under the circumstances, it cannot be said that the civil court has no jurisdiction to decide the dispute in the aforesaid suit. Under the circumstances, the learned trial court has materially erred in allowing the application by holding that the civil court would not have jurisdiction to decide the dispute between SCA/24891/2006 9/9 JUDGMENT the petitioner-District Panchayat and the Contractor. Under the circumstances, the impugned order passed by the learned trial court deserves to be quashed and set aside. 10. For the reasons stated above, the petition succeeds. The impugned order dated 17.9.2005 passed by the learned 5th Additional Senior Civil Judge, Junagadh passed below Exh.32 in Special Civil Suit No.104 of 1996 is hereby quashed and set aside. Rule is made absolute accordingly. There shall be no order as to costs. ( M.R. SHAH, J. ) syed/