The main legal point established is the interpretation of the definition of 'works contract' under the Adhiniyam and the applicability of Section 7, emphasizing the need to approach the Tribunal for adjudication.

1. The applicant has invoked the jurisdiction of this Court under Section 11(6) of Arbitration and Conciliation Act, 1996 (Arbitration Act) for appointment of a suitable Arbitrator to resolve the dispute between the parties.

2. At the outset, learned counsel for the parties fairly submitted that the core issue in the present case is whether the ‘Letter of Award/Contract’ Annexure P/1 falls within the ambit of ‘works contract’ as per Section 2(i) of Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 (Adhiniyam)?

3. Shri Jubin Prasad, learned counsel for the applicant placed reliance on clause (2) ‘Scope of work’ which talks about supply, erection, testing and commissioning of Distribution Sub stations. He urged that this clause read with Section 2.1 makes it clear that the end result of applicant’s activity would creation of a ‘Distribution Sub station’. The Distribution Sub station, by no stretch of imagination, can be treated to be a ‘power station’. By taking this Court to the definition of ‘works contract’, Shri Prasad submits that nature of activity to be carried out by the applicant does not fall within the four corners of ‘works contract’. He placed reliance on clause (14) of the ‘Detailed Bill of quantity’ for Supply of Materials for Distribution Sub stations. The clause (14) shows that the activity of supplying, installation, testing and commissioning of 33/11KV power transformer was there on the shoulders of the applicant. Shri Prasad relied on entries 50 and 51 of this Bill which is related with supply and establishment of ACSR Dog conductors. By taking this Court to a recent order passed in AC No.80/2010 decided on 15.2.2018, Shri Prasad submits that limited application of this order of Hon’ble the Chief Justice is that the ACSR conductors are not covered within the definition of ‘works contract’. Thus, these entries relating to ACSR conductors are of no assistance to the other side.

4. Reverting back to the main issue, Shri Prasad submits that a careful reading of the contract makes it clear that it does not fall within the ambit of ‘works contract’ and therefore the applicant cannot be relegated to avail the remedy under the Adhiniyam of 1983.

5. Further more, it is contended that there exists an arbitration clause i.e. 48.6, a living dispute between the parties and the inaction of respondent in appointing an Arbitrator. Thus, necessary ingredients for exercising powers under sub-section (6) of Section 11 are satisfied. Hence, suitable directions may be issued for appointment of an Arbitrator.

6. Sounding a contra note, Shri Waswani, learned counsel for the respondent relied upon the nature of work mentioned in the ‘Letter of Award’ wherein it was specified that work is of “supply, erection, testing and commissioning of New 11KV Addl. Bays, 11KV & LT Lines and 11/0.4 KV Distribution Sub stations. Shri Waswani placed reliance on clause (1), (2), (3), (5), (6), (8) and (9) of the said Bill wherein requirement of supply, erection & installation are mentioned. By relying on Webster’s Pocket Thesaurus, Shri Waswani submits that the word ‘construct’ includes build, erect, make, fabricate and create. Thus, ‘erection’ is also a construction activity. In the light of this dictionary meaning, it is clear that the applicant is very much involved in an activity of construction which falls within the meaning of ‘works contract’. Next submission of Shri Waswani is that from Distribution Sub stations also, the power is supplied to the consumers. Thus, for all practical purposes, the words ‘Power House’ and ‘Distribution Substation’ is one and the same. Shri Waswani also placed reliance on Section 7 of the Adhiniyam and urged that the only forum where petition can get his grievance redressed is the Tribunal constituted under the Adhiniyam. Thus, application is not maintainable. The Full Bench in Viva Highways Ltd. vs. Mad