Advocates:
['Dayanand Singh', '', 'Nagadeo Choubey', 'VIKAS KUMAR']

IN THE HIGH COURT OF JUDICATURE AT PATNA

Request Case No.5 of 2016

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M/s Mora Tollways Limited

.... .... Petitioner/s

Versus

The Bihar State Road Development Corporation Ltd. & Ors

.... .... Respondent/s

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Appearance :

For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate

Mr. Sanjeev Kumar, Advocate

Mr. Dayanand Singh, Advocate

For the Respondent/s : Mr. Chitranjan Sinha, PAAG-II

Mr. Vikas Kumar, Advocate

Ms. Pragya Ohri, Advocate

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CORAM: HONOURABLE THE CHIEF JUSTICE

ORAL JUDGMENT

Date: 16-08-2016

Heard

Mr.

Y.V.

Giri,

learned

Senior

Counsel,

appearing on behalf of the petitioner, and Mr. Chitranjan Sinha,

learned Principal Additional Advocate General No.II, appearing

on behalf of the State-respondents.

By this order, I propose to dispose of the present

Request case preferred by M/s Mora Tollways Limited against

the Bihar State Road Corporation Ltd, the respondents herein.

The petitioner had entered into a Concession

Agreement with the respondent Corporation for four way laning

of Mohania-Ara section. The petitioner states that with respect

to its demand for damages, a dispute arose and in terms of the

Concession Agreement, the petitioner initiated the process of

resolution of disputes through arbitration and accordingly, vide

letter,

dated

20.01.2016,

the

petitioner

informed

the

Patna High Court REQ. CASE No.5 of 2016 dt.16-08-2016

2/4

respondents about the nomination of Mr. Justice B.P. Singh, a

former Judge of the Supreme Court of India, as its arbitrator.

The respondents, however, informed the petitioner that the

nomination of arbitrator is contrary to the provisions of

Concession Agreement inasmuch as Clause 44.3 of Concession

Agreement contained a clause that any dispute, which is not

resolved amicably by conciliation, shall be finally decided by

reference to Bihar Public Works Contracts Disputes Arbitration

Tribunal Act, 2008.

The petitioner challenges the jurisdiction of the Bihar

Public Works Contracts Disputes Arbitration Tribunal to decide

the disputes primarily on the grounds, which are briefly stated

as follows;

i. That the contract, in question, is Design, Build,

Finance, Operate and Transfer Contract and since it is not a

works contract within the meaning of Bihar Public Works

Contracts Disputes Arbitration Tribunal Act, 2008, the Bihar

Public Works Contracts Disputes Arbitration Tribunal has no

jurisdiction to decide the dispute.

ii. That the dispute, raised by the petitioner, is

related to initiation of project and not per se related to

execution of project and, hence, only the provisions of the

Arbitration and Conciliation Act, 1996, would apply.

The petitioner, thus, invoked the provisions of

Patna High Court REQ. CASE No.5 of 2016 dt.16-08-2016

3/4

Section 11(6) of the Arbitration and Conciliation Act, 1996, for

appointment of arbitrator by the Court.

The

respondent

Corporation

challenged

the

contentions of the petitioner and asserted that the contract, in

question, is a works contract and that the Bihar Public Works

Contracts Disputes Arbitration Tribunal only has jurisdiction to

decide

the

disputes

and,

consequently,

Arbitration

and

Conciliation Act, 1996, has no application in the present case.

In the course of hearing of the petition, the parties

have, however, entered into a compromise with the respect to

the forum of resolution of disputes between them.

Resisting, initially, the present petition, though the

respondents had contended that in terms of the subsequent

modification, which had been carried out by the parties

concerned in their Concession Agreement, the dispute is

referable to Bihar Public W