Case: Chief General Manager (IPC) M P Power Trading Co Ltd &amp; Anr Vs. Narmada Equipments Pvt Ltd

3. The genesis of the matter is from when the Madhya Pradesh Electricity Board(Board), entered into a Power Purchase Agreement(PPA) on 20 May 1999 with the respondent.Under the PPA, the respondent was to establish a mini hydro-electric project on a built and operate basis. However, the PPA was terminated on 27 September 2001 by the Board. The respondent initially filed a writ petition(WP No 2642 of 2002) challenging the termination of the PPA. The High Court, by its order dated 4 November 2009, declined to entertain the petition in view of an arbitration agreement contained in Clause 12.3 of the PPA. Thereafter, the respondent filed a review petition(Review Petition No 716 of 2009) which was dismissed by the High Court by an order dated 10 December 2009.4. As a consequence of the orders dated 4 November 2009 and 10 December 2009, on 28 December 2009, the respondent issued a notice to the Board under Clause 12.1 of the PPA, seeking to resolve the dispute by mutual discussion. Since the respondent did not receive a reply to the notice dated 28 December 2009 from the Board, on 30 May 2011, the respondent issued another notice to the Board invoking arbitration under Clause 12.3 of the PPA. In the notice, the respondent stated that if the Board did not act upon the notice within 30 days of its receipt, it would approach the High Court under Section 11(6) of the 1996 Act.5. Having received no reply from the Board, an application(AC No 76 of 2011) was filed under Section 11(6) of the 1996 Act by the respondent seeking the appointment of an arbitrator. The High Court, by its order dated 21 January 2014, recorded that the respondent and the appellant had agreed to nominate their arbitrators, and observed that the two arbitrators would proceed to appoint a third arbitrator, in accordance with the procedure in Clause 12.3(a) of the PPA. The nominated Arbitrators fixed their first meeting on 7 May 2014, when both parties appeared and the Arbitrators fee was fixed. However, the Arbitrators, by a letter dated 7 July 2014, highlighted their inability to proceed with the arbitration proceedings on the ground that their fees had not been paid.6. Thereafter, the respondent filed AC No 1 of 2015 on 8 December 2014, seeking the appointment of an arbitrator under Section 11(6) of the 1996 Act. This application was opposed by the appellant on the ground that, in view of the provisions of Section 86(1)(f) of the Electricity Act 2003(2003 Act), it was the State Electricity Commission which was vested with the exclusive jurisdiction to adjudicate upon disputes between licensees and generating companies. By the impugned judgment and order dated 30 November 2016, the Single Judge of the High Court allowed the application filed by the respondent under Section 11(6) of the 1996 Act. The Single Judge held that the remedies under Section 86(1)(f) of the 2003 Act and under Section 11(6) of the 1996 Act are independent of each other, and it was open to the High Court to exercise its jurisdiction under Section 11(6). The appellant now comes before this Court in appeal.

Reasoning: 9. In the present case, the notice for the initiation of arbitration under Clause 12.3 of the PPA was issued by the respondent on 30 May 2011. The commencement of the arbitral proceedings by the invocation of the arbitration agreement would, therefore, relate to 30 May 2011, when the notice invoking Clause 12.3 was issued. Hence, the fact that the PPA and the notice of termination predate the 2003 Act would not constitute material circumstances. Section 21 of the 1996 Act specifies that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute would commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Hence, there can be no manner of doubt that 30 May 2011 would be the material date, since it is on this date that the notice invoking Clause 12.3 was issued by the respondent to the appellant.10. The first issue which is raised in this appeal is governed by Gujarat Urja Vikas Nigam Limited (supra). In that case, the power purchase agreement between the parties was entered into on 30 May 1996, and the notice for referring the dispute to arbitration was sent by one of the parties on 14 November 2005. The other party opposed the notice by stating that the State Electricity Commission had exclusive jurisdiction in accordance with Section 86(1)(f) of the 2003 Act. The Gujarat High Court thereafter appointed an Arbitrator in an application under Section 11(6) of the 1996 Act, which was impugned before this Court. Speaking for the two-Judge bench, Justice Markandey Katju settled the position of law in paragraphs 26, 27 and 28 of the judgment, which are extracted below for convenience of reference:26. It may be noted that Section 86(1)(f) of the Act of 2003 is a special provision for adjudication of disputes between the licensee and the generating companies. Such disputes can be adjudicated upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion the word and in Section 86(1)(f) between the words generating companies and to refer any dispute for arbitration means or. It is well settled that sometimes and can mean or and sometimes or can mean and (vide G.P. Singhs Principles of Statutory Interpretation, 9th Edn., 2004, p. 404).27. In our opinion in Section 86(1)(f) of the Electricity Act, 2003 the word and between the words generating companies and the words refer any dispute means or, otherwise it will lead to an anomalous situation because obviously the State Commission cannot both decide a dispute itself and also refer it to some arbitrator. Hence the word and in Section 86(1)(f) means or.28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation.This position has subsequently also been approved by two three-Judge benches of this Court in Hindustan Zinc Limited v Ajmer Vidyut Vitran Nigam Limited (2019) 17 SCC 82 ; hereinafter, referred to as Hindustan Zinc Limited and NHAI v Sayedabad Tea Company Limited (2020) 15 SCC 161. 11. From the above judgment, it is evident that this Court has held that Section 86(1)(f) of the 2003 Act is a special provision which overrides the general provisions contained in Section 11 of the 1996 Act. Section 86(1)(f) vests a statutory jurisdiction with the State Electricity Commission to adjudicate upon disputes between licensees and generating companies and to refer any dispute for arbitration. The and between generating companies and to refer any dispute for arbitration is to be read as an or, since the State Electricity Commission cannot obviously resolve the dispute itself and also refer it to arbitration.14. A similar issue was raised before a three-Judge bench of this Court in Hindustan Zinc Limited (supra), where an arbitrator was appointed by the State Electricity Commission under Section 86(1)(f) of the 2003 Act with the consent of the parties. Subsequently, the arbitral award was challenged under Section 34 of the 1996 Act before a Commercial Court, and the Commercial Courts decision was challenged in an appeal under Section 37 of the 1996 Act where it was held that the State Electricity Commission had no jurisdiction to appoint the arbitrator since Section 86(1)(f) refers to disputes only between licensees and generating companies, and not licensees and consumers. When the matter reached this Court, the contention was that the objection to jurisdiction could not have been raised in a proceeding under Section 37 of the 1996 Act once the parties had consented to arbitration earlier. Speaking for the Court, Justice Rohinton F Nariman held that if there is inherent lack of jurisdiction, the plea can be taken at any stage and also in collateral proceedings. He highlighted the well-established principle that a decree passed by a court without subject matter jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon. Such a defect of jurisdiction cannot be cured even by the consent of the parties. The above dictum would apply to the present case.