Back
2020 Supreme(Guj) 679
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
UMESH A. TRIVEDI, J.
M/s ONGC Petro Additions Limited – Appellant
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 7858 of 2020
Decided on : 01-09-2020
Advocate Appeared:
For the Appellant :MOSON LE EXPARTS, MR. SUDHIR NANAVATY, SR. ADVOCATE with MR AKSHAT KHARE, Adv.
For the Respondent: MR. UTKARSH SHARMA, MR. R.S. SANJANWALA, with RUSHABH H. SHAH, Adv.
IMPORTANT POINT
Disputes with regard to quantum of payment, time period for it or even liability of payment and accounting are not the issues for this Court to determine, that too, in a petition under Article 226 of the Constitution of India, more particularly, when the said dispute can be raised and very well considered by the arbitral tribunal, may be it MSEFC or may be any other person or agency, the argument raised in respect thereof is not dealt with herein leaving it open to be raised under Section 16 of the Arbitration Act, before the arbitral tribunal.
Headnote:
Civil Procedure Code , 1908 - Constitution of India - Article 226 - Anti Defection Act, 1986 - Section 3 - – Appellant - Seeking quash - Civil Application - Rule 10(A) of the Defection Rules which cast duty upon the members to procure the copy of the whip and act accordingly
Facts of the case
Petition filed by petitioners for seeking direction to quash and set aside order passed in Dispute by designated authority under provisions of Provisions for Disqualification of Members of Local Authorities - By impugned order, designated authority has rejected the Dispute Application filed by petitioners for declaring respondent as disqualified as elected councilors of Ode Municipality.
Finding of the court
Contention of petitioners that is not a valid whip in view of action taken against author of such whip cannot be considered as even if party has taken action against author of such whip, same is a decision to suspend him that too on Meaning thereby, whip which was issue author of whip was very much President of District Committee which is also authorized to issue whip even as per communication - Aforementioned reasonings, Court finds no reason to interpreter with decision of Designated Authority passed in Dispute Application the petition deserves to be and is hereby dismissed - Order in main petition, no separate order in Civil Application is required to be passed.
Result : Application disposed of .
JUDGMENT :
UMESH A. TRIVEDI, J.
[1.0.] Challenge in this petition is to the order dated 19.02.2020 passed by the Micro and Small Enterprises Facilitation Council, Gandhinagar, Gujarat (hereinafter referred to as “MSEFC”) whereby, it terminated the conciliation proceedings conducted under Section 18(2) of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as “MSME Act”) and directed the parties to start the arbitration proceedings under Section 18(3) of the MSME Act before the MSEFC.
[2.0.] The respondent No.3 – M/s Rachna Infrastructure Ltd. filed reference under Section 18(1) of the MSME Act before the MSEFC claiming that there exists dispute with regard to delayed payment and interest thereon, against respondent No.4 – M/s. Fernas Construction India Pvt Limited and petitioner – M/s. ONGC Petro additions Limited. After putting in tireless efforts by the MSEFC since it did not yield any outcome, MSEFC terminated conciliation proceedings and directed the parties to start the arbitration before it.
[3.0.] The petitioner – M/s ONGC Petro additions Limited (hereinafter referred to as “OPaL”) is a Company incorporated under the provisions of Companies Act, 1956 and is a joint venture company promoted by M/s Oil and Natural Gas Corporation Limited and co-promoted by M/s GAIL (India) Limited and M/s Gujarat State Petroleum Corporation Limited. It is engaged in the business of manufacturing of Petrochemicals and other allied products.
[4.0.] The brief facts of the case as pleaded in the petition are as under:
[4.1.] The petitioner has set up a grass root mega Petrochemicals project of national importance for manufacturing petrochemical products and other allied products at Dahej, Gujarat in PCPIR/SEZ with an investment of USD 4.5 billion, one of its kind in Indian Subcontinent to provide wide spectrum of petrochemicals, wherein several interdependent units were designed viz. Dual Feed Cracker Unit (DFCU), LLDPE/HDPE Swing Unit (PE Unit), dedicated HDPE Unit, Polypropylene Unit (PP Unit), Pyrolysis Gas Hydrogenation Unit, Benzene Extraction Unit, Butadiene Extraction Unit and others for manufacturing variety of petrochemical and allied products. The primary infrastructure set up by OPaL at its aforesaid Petrochemical Complex is as follows:
(a) DFCU Unit cracks its feedstock and produces several chemicals namely (i) Ethylene, (ii) Propylene, (iii) Butadiene, (iv) Benzene, (v) Pyrolysis Gasoline an (vi) Carbon Black Feed Stock (CBFS), etc., which are feedstocks for other downstream units i.e. Ethylene is the feed stock for PE & dedicated HDPE Units, Propylene is the feed stock for PP Unit and other chemicals for other associated units.
(b) Each unit requires utilities (viz. Electricity, water, gas, steam, etc.,) and feedstocks as most essential inputs to become operational. Further there is a primary requirement of creation of appropriate storage (i.e. tanks, vessels, spheres, etc.) for keeping stock of feedstocks and utilities (i.e. off-sites) for non-stop operation. Therefore, both utilities and off-sites play a vital role for running of each unit.
(c) Integration of entire utilities & off-sites plays most significant role for commissioning smooth and un-interrupted operations since all aforesaid units are interdependent.
Therefore, package for Integrated Utilities & Off-sites (IU & O) plays a most critical role in the operation of the opponent No.2's petrochemical complex.
[4.2.] It is the case of the petitioner that for the purpose of accomplishing this mega project at Dahej Petrochemical Complex, OPaL had awarded several Lump-sum Turn-Key (LSTK) Contracts to several national and international recognized contractors to construct and set up different units/packages as per their specialized technical experience and capabilities. In the year 2011, OPaL awarded Integrated Utilities & Off-sites (IU&O) package for its Dahej Petrochemical Complex in favour of respondent No.4 – M/s FERNAS Construction India Private L
