Sri B R Ganesh S O Late Rajappa Vs the Commissioner - Citation 1195726 - Court Judgment

Judgment:

1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE17H DAY OF MARCH, 2015 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR C.M.P.NO.14/2012 C/W C.M.P.NOS.102/2014, 103/2014, 104/2014, 105/2014, 106/2014, 107/2014, 108/2014, 128/2014, 85/2014, 86/2014, 89/2014 90/2014, 91/2014, 135/2014, 136/2014, 137/2014, 138/2014, 139/2014, 140/2014, 141/2014, 142/2014, 143/2014, 144/2014, 145/2014, 87/2014 & 88/2014 C.M.P.14/2012: BETWEEN:

1. SRI B R GANESH S/O LATE RAJAPPA AGED ABOUT45YEARS, CONTRACTOR, PACKAGE NO.12, NO.30, RAGHUVANAHALLI, KANAKAPURA ROAD, BENGALURU-560062 2.SRI S N BALASUBRAMANIYAM S/O LATE SHAMANNA AGED ABOUT46YEARS, CONTRACTOR, PACKAGE NO.23, 2 NO.1, AGA GARDEN, FOOD GODOWN ROAD AKKITHIMMANAHALLI, SHANTHINAGAR, BENGALURU -560027 3.SRI E R SANTHOSH S/O RAMACHANDRA REDDY AGED ABOUT33YEARS, CONTRACTOR, PACKAGE NO.2 NO.4, FIRST A MAIN ROAD, KASTURI NAGAR, BANASWADI, BENGALURU -560016 4.SRI S RAJU S/O SRI SRINIVASALU NAIDU AGED ABOUT31YEARS, CONTRACTOR, PACKAGE NO.4, NO.7, I CROSS, 24TH MAIN ROAD, PUTTENAHALLI, J.P.NAGAR VII PHASE, BENGALURU -560078 5.SRI A RAMAKRISHNA REDDY S/O ANNAYAPPA AGED ABOUT57YEARS, CONTRACTOR, PACKAGE NO.7, NO.198, NEW THIPPASANDRA, HAL III STAGE, BENGALURU -560075 6.SMT S GIRIJA W/O K N SAUNDARAJAN AGED ABOUT46YEARS, CONTRACTOR PACKAGE NO.11, NO.15/1, IST A CROSS, KALAPPA BLOCK, 3 SRINAGAR, BENGALURU-560050 7.SRI C R VEERANARAYANACHARI S/O LATE K RAMACHARY AGED ABOUT59YEARS CONTRACTOR, PACKAGE NO.13 NO.80/1, 1ST CROSS, IST MAIN ROAD JAIBEEMANAGAR, OLD MADIWALA BENGALURU -560068 8.SRI R HAIRSH S/O LATE R RAMESH AGED ABOUT35YEARS NO.54/5, 7TH CROSS, LAKSHMI ROAD BANGIYAPPA GARDEN, SHANTHINAGAR BENGALURU -560027 9.SRI C RAVINAIDU S/O C SRINIVASULU NAIDU AGED ABOUT50YEARS CONTRACTOR PACKAGE NO.17 NO.1672, 5TH CROSS, II BLOCK, BANASHANKARI I STAGE, BENGALURU -560050 10.SRI A L SATISH KUMAR S/O LATE MAHALINGAPPA AGED ABOUT37YEARS CONTRACTOR, PACKAGE NO.19 LAKSHMI ROAD, SHANTHINAGAR BENGALURU -560027 11.SRI P PURANDARA REDDY S/O LATE CHINNATHAMBI REDDY AGED ABOUT59YEARS4CONTRACTOR, PACKAGE NO.20, NO.57/52, PLOT NO.001, GROUND FLOOR, COMFORT ENCLAVE APARTMENT, 7TH MAIN ROAD, N S PALYA MAIN ROAD, BTM LAYOUT, 2ND STAGE, BENGALURU-560 076 12.SMT P KAVITHA W/O P GOPINATH REDDY AGED ABOUT41YEARS CONTRACTOR, PACKAGE NO.21 NO.6, BEHIND SANDYA THEATRE OLD MADIWALA BENGALURU -560068 13.SRI P GOPINATH REDDY S/O LATE P CHINNATHAMBI REDDY AGED ABOUT46YEARS CONTRACTOR PACKAGE NO.26 NO.6 BEHIND SANDYA THEATRE, OLD MADIWALA BENGALURU -560068 14.SRI BABU REDDY S/O DODDA MUNINAGA REDDY AGED ABOUT33YEARS CONTRACTOR, PACKAGE NO.28 NO.27, KACHARAKANAHALLI ST THOMAS TOWN POST BENGALURU -560084 15.SRI R DAMODAR S/O LATE RAJAPPA, AGED ABOUT36YEARS CONTRACTOR, PACKAGE NO.29 NO.12/1, NEW BINNAMANGALA5OLD MADRAS ROAD INDIRANAGAR BENGALURU -560038 16.SRI M VENKATESH S/O M MUNISWAMY REDDY, AGED ABOUT41YEARS CONTRACTOR, PACKAGE NO.30 NO.1809, 21ST MAIN ROAD13H CROSS H S R LAYOUT SECTOR-2, BENGALURU -560034 17.SRI C V BANUMURTHY REDDY S/O C VENUGOPALA REDDY, AGED ABOUT53YEARS CONTRACTOR, PACKAGE NO.15 & 18 NO.8, 14TH CROSS VENKATESHWARA LAYOUT MADIWALA BENGALURU -560068 18.SRI E RAMANA REDDY S/O E VENUGOPALA REDDY, AGED ABOUT39YEARS CONTRACTOR, PACKAGE NO.05 & 06 NO.10, IST B CROSS V P MAIN ROAD BENGALURU -560068 19.SRI P ANAND VARDHAN REDDY S/O P JANARDHAN REDDY, AGED ABOUT33YEARS SERVICE PROVIDER FOR PACKAGE NO.01 NO.10, 14TH MAIN, VENKATESHWARA LAYOUT BENGALURU -560068 6 20.SRI P VIDYA NATHREDDY S/O P CHENGA REDDY, AGED ABOUT32YEARS SERVICE PROVIDER FOR PACKAGE NO.03 NO.1951, JAYANAGAR9H BLOCK BENGALURU -560069 21.SRI P VITATAL NATH REDDY S/O P CHENGA REDDY, AGED ABOUT34YEARS SERVICE PROVIDER FOR PACKAGE NO.08 NO.402/8, 15TH A MAIN VENKATESHWARA LAYOUT BENGALURU -560068 22.SRI P VISHNU VARDHAN REDDY S/O C VENKATAMUNI REDDY, AGED ABOUT36YEARS SERVICE PROVIDER FOR PACKAGE NO.09 NO.29/10, 18TH MAIN, 7TH CROSS BTM2D STAGE BENGALURU -560068 23.SRI P VIKRAMDEV REDDY S/O LATE DURAVASULU REDDY, AGED ABOUT38YEARS, SERVICE PROVIDER FOR PACKAGE NO.10 NO.8, BEHIND SANDHYA TENT OLD MADIWALA BENGALURU -560068 24.SRI K R SRINIVAS REDDY S/O K R RAJAKRISHNA REDDY, AGED ABOUT46YEARS, SERVICE PROVIDER FOR PACKAGE NO.16 LAVA KUSHA NAGAR, 7 HOSUR MAIN ROAD ELECTRONIC CITY POST BENGALURU -560084 25.SRI R PANDURANGA S/O LATE M RAMAIAH, AGED ABOUT48YEARS SERVICE PROVIDER FOR PACKAGE NO.25 NO.4, 3RD CROSS CUBBONPET BENGALURU -560002 26.SRIP VIJAY DEVA REDDY AGED ABOUT37YEARS, S/O C VENKATAMNI REDDY SERVICE PROVIDER FOR PACKAGE NO.27, NO.9, 14TH MAIN, VENKATESHWARA LAYOUT, BENGALURU -560068 27.SRI R VENKATESH AGED47YEARS, S/O RAMAIAH SERVICE PROVIDER FOR NIGHT PACKAGE NO.01 NO.768, 16TH A MAIN22D CROSS, HSR LAYOUT SECTOR3 BENGALURU -560034 28.SRI RAMACHANDRA REDDY AGED44YEARS, S/O LATE H A SHAMANNA REDDY, SERVICE PROVIDER FOR NIGHT PACKAGE NO.03, HALA NAYAKANAHALLI, CARMELARAM POST, BENGALURU -560035 8 29.SRI C V RAJANIKANTH REDDY S/O VENUGOPAL REDDY AGED ABOUT47YEARS, SERVICE PROVIDER FOR MECHANICAL SWEEPING PACKAGE NO.01, NO.08, 14TH MAIN VENKATESHWARA LAYOUT, MADIWALA, BENGALURU -560068 30.SRI M RAMESH S/O MUNIREDDY, AGED ABOUT38YEARS, NO.668, 27TH CROSS, 22ND A MAIN, HSR LAYOUT, II SECTOR, BENGALURU -560002 31.SRI SRINIVASA GOWDA S/O GIRIYANNA, AGED ABOUT42YEARS, NO.1832, III A CROSS, II STAGE, II BLOCK, RAJAJINAGAR, BENGALURU -560010 32.SRI GANESH SHANKAR AGED ABOUT56YEARS, S/O LAT D CHINNAVENKANNA, NO.37, SRIHARI NILAYAM, 8TH CROSS, KGE LAYUOT, RMV SECOND STAGE, BENGALURU -560094 ..PETITIONERS (BY SRI.UDAY HOLLA, SENIOR COUNSEL FOR SRI.PRAKASH M PATIL, ADVOCATE FOR P-7, 11-13 & 19, 9 SRI.V.LAKSHMINARAYANA, SENIOR COUNSEL FOR P-1, 2, 4 TO6 8 TO10 4 TO17 24, 25, 27 TO32 SRI.T.MOHANDAS SHETTY, ADVOCATE FOR P-3, 18, 20, 21 & 23, SRI.VIKRAM BALAJI B.L., ADVOCATE FOR P-2) AND: THE COMMISSIONER THE BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) This Civil Misc. Petition is filed U/s.11(5) & (6) of the Arbitration and Conciliation Act, 1996 praying, for the reasons stated therein, that this Hon'ble Court may be pleased to appoint an independent arbitrator to decide the claims of the parties preferred by them on 24/12/2009, 01/12/2009, and 07/07/2011 under clause 10 of the Agreement dated 15/03/2007. C.M.P.102/2014: BETWEEN: SRI E RAMANA REDDY S/O E VENUGOPAL REDDY AGED ABOUT39YEARS, CONTRACTOR, PACKAGE NO.5 AND6NO.10, 1ST B CROSS, V.P.MAIN ROAD, BENGALURU -560068 ..PETITIONER (BY SRI.T.MOHANDAS SHETTY, ADVOCATE) 23/06/2010 and 18/09/2010 10 AND: THE COMMISSIONER THE BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU. ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(6) of the Arbitration and Conciliation Act 1996, praying this Hon'ble Court to appoint an Independent Arbitrator who decide the claims of the petitioner and others on 24/12/2009, 01/12/2009, 23/06/2010 and 18/09/2010 and 07/07/2011 under Clause 10 of the Agreement dated:

15. 03/2007 as per Annexure-A, in view of Section 11 of the Arbitration and Conciliation Act, 1996 (as amended). C.M.P.103/2014: BETWEEN: SRI P VITTAL NATHREDDY S/O P CHENGA REDDY AGED ABOUT34YEARS SERVICE PROVIDER FOR PACKAGE No.08, NO.402/B15H A MAIN VENKATESHWARA LAYOUT BENGALURU -560069 ..PETITIONER (BY SRI.T.MOHANDAS SHETTY, ADVOCATE) 11 AND: THE COMMISSIONER THE BRUHAT BANGALORE MAHANAGARA PALIKE N R SQUARE BENGALURU ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(6) of the Arbitration and Conciliation Act 1996, praying this Hon'ble Court to appoint an Independent Arbitrator who decide the claims of the petitioner and others on 24/12/2009, 01/12/2009, 23/06/2010 and 18/09/2010 and 07/07/2011 under Clause 10 of the Agreement dated:

15. 03/2007 as per Annexure-A. C.M.P.104/2014: BETWEEN: SRI P VISHNU VARDHAN REDDY S/O C.VENKATAMUNI REDDY, AGED ABOUT36YEARS, SERVICE PROVIDER FOR PACKAGES NO.09, NO.08, BEHIND SANDHYA TENT, OLD MADIWALA, BENGALURU -560068. ..PETITIONER (BY SRI.T.MOHANDAS SHETTY, ADVOCATE) AND: THE COMMISSIONER THE BRUHAT BANGALORE MAHANAGARA PALIKE, 12 N.R.SQUARE, BENGALURU ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(6) of the Arbitration and Conciliation Act 1996, praying this Hon'ble Court to appoint an Independent Arbitrator who decide the claims of the petitioner and others on 24/12/2009, 01/12/2009, 23/06/2010 and 18/09/2010 and 07/07/2011 under Clause 10 of the Agreement dated:

15. 03/2007 as per Annexure-A. C.M.P.105/2014: BETWEEN: SRI E R SANTHOSH S/O RAMACHANDRA REDDY, AGED ABOUT33YEARS, CONTRACTOR, PACKAGE NO.2, NO.4, FIRST A MAIN ROAD, KASTURI NAGAR, BANASAWADI, BENGALURU -560016. ..PETITIONER (BY SRI.T.MOHANDAS SHETTY, ADVOCATE) AND: THE COMMISSIONER THE BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU ..RESPONDENT13(BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(6) of the Arbitration and Conciliation Act 1996, praying this Hon'ble Court to appoint an Independent Arbitrator who decide the claims of the petitioner and others on 24/12/2009, 01/12/2009, 23/06/2010 and 18/09/2010 and 07/07/2011 under Clause 10 of the Agreement dated:

15. 03/2007 as per Annexure-A. C.M.P.106/2014: BETWEEN: SRI VIKRAMADEV REDDY S/O LATE DURAVASULU REDDY AGED ABOUT38YEARS SERVICE PROVIDER FOR PACKAGES NO.10 No.08, BEHIND SANDHYA TENT OLD MADIWALA BENGALURU -560068 ..PETITIONER (BY SRI.T.MOHANDAS SHETTY, ADVOCATE) AND: THE COMMISSIONER THE BRUHAT BANGALORE MAHANAGARA PALIKE N R SQUARE BENGALURU ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(6) of the Arbitration and 14 Conciliation Act 1996, praying this Hon'ble Court to appoint an Independent Arbitrator who decide the claims of the petitioner and others on 24/12/2009, 01/12/2009, 23/06/2010 and 18/09/2010 and 07/07/2011 under Clause 10 of the Agreement dated:

15. 03/2007 as per Annexure-A. C.M.P.107/2014: BETWEEN: SRI VIJAYA DEVA REDDY S/O C VENKATAMUNI REDDY AGED ABOUT37YEARS SERVICE PROVIDER FOR PACKAGE NO.27, NO.9, 14TH MAIN VENKATESHWARA LAYOUT BENGALURU -560068 ..PETITIONER (BY SRI.T.MOHANDAS SHETTY, ADVOCATE) AND: THE COMMISSIONER THE BRUHAT BANGALORE MAHANAGARA PALIKE N R SQUARE BENGALURU ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(6) of the Arbitration and Conciliation Act 1996, praying this Hon'ble Court to appoint an Independent Arbitrator who decide the claims of the petitioner and others on 24/12/2009, 01/12/2009, 23/06/2010 and 18/09/2010 and 07/07/2011 under 15 Clause 10 of the Agreement dated:

15. 03/2007 as per Annexure-A. C.M.P.108/2014: BETWEEN: SRI P VIDYA NATHREDDY S/O P.CHENGA REDDY, AGED ABOUT32YEARS, SERVICE PROVIDER FOR PACKAGE, NO.03, NO.1951, JAYANAGAR9H BLOCK, BENGALURU -560069. ..PETITIONER (BY SRI.T.MOHANDAS SHETTY, ADVOCATE) AND: THE COMMISSIONER THE BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(6) of the Arbitration and Conciliation Act 1996, praying this Hon'ble Court to appoint an Independent Arbitrator who decide the claims of the petitioner and others on 24/12/2009, 01/12/2009, 23/06/2010 and 18/09/2010 and 07/07/2011 under Clause 10 of the Agreement dated:

15. 03/2007 as per Annexure-A. 16 C.M.P.128/2014: BETWEEN: B R GANESH AGED ABOUT47YEARS S/O LATE RAJAPPA CONTRACTOR, PACKAGE No.12 R/A NO.30, RATHUVANAHALLI KANAKAPURA ROAD BENGALURU -560062 ..PETITIONER (BY SRI.VIKRAM BALAJI B.L., ADVOCATE) AND:

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE N R SQUARE BENGALURU -560001 2.THE DEPUTY COMMISSIONER (HEALTH) BRUHAT BANGALORE MAHANAGARA PALIKE N R SQUARE BENGALURU -560001 ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5,

6) of the Arbitration and Conciliation Act 1996, praying this Hon'ble Court to appoint an independent Arbitrator to decide the claims of the petitioner under Clause 10 of the Agreement at Annexure-B dated:

15. 03/2007 as per the directions issued by this Hon'ble Court in W.P. Nos. 33663- 17 33691/2009 and connected petitions (DD:8-6-2010) and W.P.Nos 4250-4278/2010 (DD:30-6-2010). C.M.P.85/2014: BETWEEN: SRI P. GOPINATH REDDY S/O LATE P.CHINNATHAMBI REDDY, AGED48YEARS, CONTRACTOR, NO.6, BEHIND SANDYA THEATRE, OLD MADIWALA, BENGALURU -560068. ..PETITIONER (BY SRI.PRAKASH M PATIL, ADVOCATE) AND: THE COMMISSIONER B.B.M.P, CORPORATION CIRCLE, BENGALURU-560002 ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

6) of the Arbitration and Conciliation Act 1996, praying this Hon'ble Court to appoint an independent arbitrator to decide the claims of the petitioner preferred by him on 24/12/2009, 1/12/2009, 23/06/2010, 18/09/2010 and 07/07/2011 under clause 10 of the Agreement dated:

15. 03/2007 vide Annexure-A. 18 C.M.P.86/2014: BETWEEN: SRI P. GOPINATH REDDY S/O LATE P CHINNATHAMBI REDDY AGED48YEARS CONTRACTOR PACKAGE No.26 NO.6, BEHIDN SANDYA THEATRE OLD MADIWALA BENGALURU -560068 ..PETITIONER (BY SRI.PRAKASH M PATIL, ADVOCATE) AND: THE COMMISSIONER B.B.M.P. CORPORATION CIRCLE BENGALURU -560002 ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 vide Annexure-A. 19 C.M.P.89/2014: BETWEEN: SRI P. ANAND VARDHAN REDDY S/O P JANRADHAN REDDY AGED ABOUT35YEARS No.10, 14TH MAIN VENKATESHWARA LAYOUT BENGALURU -560068 ..PETITIONER (BY SRI.PRAKASH M PATIL, ADVOCATE) AND: THE COMMISSIONER B B M P CORPORATION CIRCLE BENGALURU ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 vide Annexure-A and pass such other order or orders as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case. 20 C.M.P.90/2014: BETWEEN: SRI P. PURANDARA REDDY S/O. LATE CHINNATHAMBI REDDY, AGED ABOUT59YEARS, 57/52, PLOT NO.001, GROUND FLOOR, COMFORT ENCLAVE, APARTMENT, 7TH MAIN ROAD, N.S.PALYA MAIN ROAD, BTM LAYOUT, 2ND STAGE, BENGALURU -560 076. .. PETITIONER (BY SRI.PRAKASH M PATIL, ADVOCATE) AND: THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU-560002 ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 vide Annexure-A and pass such other order or orders as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case. 21 C.M.P.91/2014: BETWEEN: SMT. P. KAVITHA W/O P.GOPINATH REDDY, AGED43YEARS, CONTRACTOR, NO.6, BEHIND SANDYA THEATRE, OLD MADIWALA, BENGALURU -560068. ..PETITIONER (BY SRI.PRAKASH M PATIL, ADVOCATE) AND: THE COMMISSIONER BRUHAT BANGALORE MAHANAGAR PALIKE, N.R.SQUARE, BENGALURU -560002. ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 vide Annexure-A and pass such other order or orders as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case. 22 C.M.P.135/2014: BETWEEN: A.L.SHATHISH KUMAR S/O LATE MAHALINGAPPA AGED ABOUT39YEARS CONTRACTOR PACKAGE NO.19 R/O LAXMI ROAD SHANTHI NAGAR BENGALURU -560027 ..PETITIONER (BY SRI.VIKRAM BALAJI B L., ADVOCATE) AND:

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE N R SQUARE BENGALURU -560001 2.THE DEPUTY COMMISSIONER (HEALTH) BRUHAT BANGALORE MAHANAGARA PALIKE N R SQUARE BENGALURU -560001 ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 as per the directions issued by in W.P.Nos.33663- 33691/2009 and connected petitions (DD:08/06/2010) and W.P.Nos.4250-4278/2010(DD:30/06/2010). this Hon'ble Court C.M.P.136/2014: BETWEEN: VENKATESH M AGED ABOUT43YEARS, S/O MUNISWAMY REDDY, CONTRACTOR, PACKAGE NO.30, R/AT NO.1809, 21ST MAIN ROAD, 13TH CROSS, SECTOR-2 HSR LAYOUT, BENGALURU -560034 ..PETITIONER (BY SRI.VIKRAM BALAJI B L., ADVOCATE) AND:

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU -560 001 2.THE DEPUTY COMMISSIONER (HEALTH) BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU -560 001 ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) 24 The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5&

15. 03/2007 as per the directions issued by in W.P.Nos.33663- 33691/2009 and connected petitions (DD:08/06/2010) and W.P.Nos.4250-4278/2010(DD:30/06/2010). this Hon'ble Court C.M.P.137/2014: BETWEEN: BABU REDDY S/O DODDA MUNIGA REDDY AGED ABOUT35YEARS CONTRACTOR, PACKAGE No.28 R/A No.27, KACHARKANAHALLI ST THOMAS TOWN POST BENGALURU -560084 ..PETITIONER (BY SRI.VIKRAM BALAJI B L., ADVOCATE) AND:

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE N R SQUARE BENGALURU -560001 2.THE DEPUTY COMMISSIONER (HEALTH) BRUHAT BANGALORE MAHANAGARA PALIKE25N R SQUARE BENGALURU -560001 ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 as per the directions issued by in W.P.Nos.33663- 33691/2009 and connected petitions (DD:08/06/2010) and W.P.Nos.4250-4278/2010(DD:30/06/2010). this Hon'ble Court C.M.P.138/2014: BETWEEN: K.R.SRINIVASA REDDY AGED ABOUT48YEARS, S/O RAJAKRISHNA REDDY, CONTRACTOR, PACKAGE NO.16, R/O LAVA KUSHA NAGAR, HOSUR MAIN ROAD, ELECTRONIC CITY POST, BENGALURU -560084 ..PETITIONER (BY SRI.VIKRAM BALAJI B L., ADVOCATE) AND:

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, 26 BENGALURU -560001 2.THE DEPUTY COMMISSIONER (HEALTH) BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU -560001 ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 as per the directions issued by in W.P.Nos.33663- 33691/2009 and connected petitions (DD:08/06/2010) and W.P.Nos.4250-4278/2010(DD:30/06/2010). this Hon'ble Court C.M.P.139/2014: BETWEEN: S RAJU AGED ABOUT33YEARS, S/O SRINIVASULU NAIDU, CONTRACTOR, PACKAGE NO.4, R/AT NO.7, 1ST CROSS, 24TH MAIN, PUTTENAHALLI, J.P.NAGAR, VII PHASE, BENGALURU -560078. ..PETITIONER (BY SRI.VIKRAM BALAJI B L., ADVOCATE) 27 AND:

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU -560 001. 2.THE DEPUTY COMMISSIONER (HEALTH) BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU -560 001. ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 as per the directions issued by in W.P.Nos. 33663- 33691/2009 and connected petitions (DD:08/06/2010) and W.P.Nos.4250-4278/2010(DD:30/06/2010). this Hon'ble Court C.M.P.140/2014: BETWEEN: C V BHANUMURTHY REDDY S/O C VENUGOPALA REDDY AGED ABOUT55YEARS CONTRACTOR, PACKAGE NOS15& 18 R/A No.8, 14-C CROSS28VENKATESHWARA LAYOUT MADIVALA BENGALURU -560068 ..PETITIONER (BY SRI.VIKRAM BALAJI B L., ADVOCATE) AND:

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N R SQUARE BENGALURU -560001 2.THE DEPUTY COMMISSIONER (HEALTH) BRUHAT BANGALORE MAHANAGARA PALIKE N R SQUARE BENGALURU -560001 ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 as per the directions issued by in W.P.Nos. 33663- 33691/2009 and connected petitions (DD:08/06/2010) and W.P.Nos.4250-4278/2010(DD:30/06/2010). this Hon'ble Court C.M.P.141/2014: BETWEEN: DAMODHAR R29AGED ABOUT38YEARS, S/O LATE RAJAPPA, CONTRACTOR, PACKAGE NO.29, R/A NO.12/1, NEW BINNAMANGALA, OLD MADRAS ROAD, INDIRA NAGAR, BENGALURU -560038 ..PETITIONER (BY SRI.VIKRAM BALAJI B L., ADVOCATE) AND:

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE N.R.SQUARE, BENGALURU -560001 2.THE DEPUTY COMMISSIONER (HEALTH) BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU -560001 ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 as per the directions issued by in W.P.Nos. 33663- 33691/2009 and connected petitions (DD:08/06/2010) and W.P.Nos.4250-4278/2010(DD:30/06/2010). this Hon'ble Court 30 C.M.P.142/2014: BETWEEN: RAMACHANDRA REDDY AGED ABOUT46YEARS, S/O LATE H.A.SHAMANNA REDDY, CONTRACTOR, PACKAGE NO.3, R/O HALANAYAKANAHALLY, CARMELARAM POST, BENGALURU -560035. ..PETITIONER (BY SRI.VIKRAM BALAJI B L., ADVOCATE) AND:

15. 03/2007 as per the directions issued by in W.P.Nos. 33663- this Hon'ble Court 31 33691/2009 and connected petitions (DD:08/06/2010) and W.P.Nos.4250-4278/2010(DD:30/06/2010). C.M.P.143/2014: BETWEEN: SMT GIRIJA S AGED ABOUT48YEARS, W/O SUNDAR RAJAN, CONTRACTOR, PACKAGE NO.11, R/A NO.15/1, 1ST A CROSS, KALAPPA BLOCK, SRINAGAR, BENGALURU -560050 ..PETITIONER (BY SRI.VIKRAM BALAJI B L., ADVOCATE) AND:

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU -560001 2.THE DEPUTY COMMISSIONER (HEALTH) BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU -560001 ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

6) of the Arbitration 32 and Conciliation Act 1996, praying this Hon'ble Court to appoint an independent Arbitrator to decide the claims of the petitioner under Clause 10 of the Agreement at Annexure-B dated:

15. 03/2007 as per the directions issued by in W.P.Nos.33663- 33691/2009 and connected petitions (DD:08/06/2010) and W.P.Nos.4250-4278/2010(DD:30/06/2010). this Hon'ble Court C.M.P.144/2014: BETWEEN: R.PANDURANGA AGED ABOUT54YEARS, S/O RAMAIAH, CONTRACTOR, PACKAGE NO.54, R/O NO.4, III CROSS, CUBBONPET, BENGALURU -560 002 ..PETITIONER (BY SRI.VIKRAM BALAJI B L., ADVOCATE) AND:

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU -560 001 2.THE DEPUTY COMMISSIONER (HEALTH) BRUHAT BANGALORE MAHANAGARA PALIKE, N.R SQUARE, BENGALURU -560 001 ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) 33 The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 as per the directions issued by in W.P.Nos. 33663- 33691/2009 and connected petitions (DD:08/06/2010) and W.P.Nos.4250-4278/2010(DD:30/06/2010). this Hon'ble Court C.M.P.145/2014: BETWEEN: RAMAKRISHNA REDDY AGED ABOUT59YEARS, S/O ANNAYYAPPA REDDY, CONTRACTOR, PACKAGE NO.7, R/A NO.198, NEW THIPPASANDRA HAL III STAGE, BENGALURU -560 075 ..PETITIONER (BY SRI.VIKRAM BALAJI B L., ADVOCATE) AND:

1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BENGALURU -560 001 2.THE DEPUTY COMMISSIONER (HEALTH) BRUHAT BANGALORE MAHANAGARA PALIKE, 34 N.R SQUARE, BENGALURU -560 001 ..RESPONDENTS (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 as per the directions issued by in W.P.Nos. 33663- 33691/2009 and connected petitions (DD:08/06/2010) and W.P.Nos.4250-4278/2010(DD:30/06/2010). this Hon'ble Court C.M.P.87/2014: BETWEEN: SRI P. GOPINATH REDDY S/O. LATE P.CHINNATHAMBI REDDY, AGED48YEARS, CONTRACTOR, NO.6, BEHIND SANDYA THEATRE OLD MADIWALA, BENGALURU -560 068. ..PETITIONER (BY SRI.PRAKASH M PATIL, ADVOCATE) AND: THE COMMISSIONER BRUHAT BANGALORE MAHANAGAR PALIKE N.R.SQUARE, BENGALURU-560 002 ..RESPONDENT35(BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &6) of the Arbitration and Conciliation Act 1996, praying this Hon'ble Court to appoint an independent arbitrator to decide the claims of the petitioner preferred by him on 24/12/2009, 1/12/2009, 23/06/2010, 18/09/2010 and 07/07/2011 under clause 10 of the Agreement dated:

15. 03/2007 vide Annexure-A and pass such other order or orders as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case. C.M.P.88/2014: BETWEEN: SRI C.R. VEERANARAYANACHARI S/O LATE RAMACHARY AGED ABOUT61YEARS, CONTRACTOR, NO.80/1, 1ST CROSS, 1ST MAIN ROAD, JAIBEEMANAGAR, OLD MADIWALA, BENGALURU -560068 ..PETITIONER (BY SRI.PRAKASH M PATIL, ADVOCATE) AND: THE COMMISSIONER BRUHAT BANGALORE MAHANAGAR PALIKE, N.R.SQUARE, BENGALURU-560 002 ..RESPONDENT (BY SRI.S.N.PRASHANTH CHANDRA ADVOCATE) 36 The advocate for the petitioner has filed the above Civil Misc. Petition Under Section 11(5 &

15. 03/2007 vide Annexure-A and pass such other order or orders as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case. THESE CMPs COMING ON FOR DICTATING

ORDER

S THIS DAY, THE COURT MADE THE FOLLOWING: Short but contentious issue which arises for

ORDER

consideration in these petitions relates to the existence of `Arbitration Agreement’ or otherwise between the parties namely whether there exists an agreement between the parties for referring the dispute between them for being adjudicated by an Arbitral Tribunal. BACKGROUND OF THE CASE:

2. Petitioners are all claiming to be licensed contractors of Bangalore Mahanagara Palike (for short `BMP’) who were given contract for cleaning, sweeping and 37 transportation of municipal solid waste pursuant to the tender notification dated 12.12.2005. Initially the contract was entered into between the parties for a period of three years from 15.03.2007 and was extended from time to time. Petitioners have contended during the subsistence of the contract dispute arose between them and the respondent relating to payment of `Lead charges’ and on account of deductions being made in respect of bills raised by the petitioners and from out of the running bills, which the respondent was not entitled to deduct, they raised a claim for compensatory payments. It is stated that petitioners had approached this court in W.P.33663-33691/2009 and connected matters for various reliefs against BMP and by order dated 08.06.2010 Annexure-C said writ petitions came to be disposed whereunder the Commissioner of BMP was directed to decide the claims of the petitioners and as such petitioners submitted their claim petitions on 23.06.2010 vide Annexure-F to BMP which was in 38 furtherance of the claim already submitted on 24.12.2008 and 01.12.2009 Annexure-D and E respectively.

3. Petitioners contended that on account of certain amounts having been deducted by the respondent and on account of 5% agreed escalation charges not being paid to them by the BMP some of the petitioners had approached this court in W.P.4250-4278/2010 and said writ petition came to be disposed by order dated 30.06.2010 Annexure- G directing BMP to adjudicate the claim of petitioners in terms of clause 10 of agreement. Hence, petitioners contended that fresh claim petitions came to be submitted by them before Commissioner, BMP on 20.09.2010 as per Annexure-H and despite this court having directed BMP that within a specified time claims of the petitioners should be decided as provided under clause 10 of the agreement dated 15.03.2007, Commissioner did not take any action pursuant to said direction and thereby petitioners were perforced to issue final notice dated 07.07.2011 Annexure-J39seeking for an independent Arbitrator being appointed since the named Arbitrator i.e., Commissioner, BMP in terms of clause 10 of the agreement had refused to exercise his power. Petitioners further contend that Commissioner, BMP instead of adjudicating the claims of petitioners had referred the matter for criminal investigation by Bangalore Metropolitan Task Force and on account of such step having been taken by him he had become disqualified to act as an Arbitrator for deciding the claims of the petitioners/contractors. In these circumstances petitioners contend that an independent sole Arbitrator be appointed since the named Arbitrator had not exercised his power under clause 10 of the Agreement and he having taken steps to order for criminal investigation being conducted against petitioners/contractors which is relating to the subject matter of agreement dated 15.03.2007, named Arbitrator cannot act as an Arbitrator and for these reasons, petitioners have contended that respondent has no jurisdiction to proceed to adjudicate the claims of 40 petitioners in terms of clause 10 of the agreement and have prayed for an independent Arbitrator being appointed in terms of section 11(6) of the Arbitration and Conciliation Act, 1996 [for short `Act’]..

4. On service of notice, respondent has appeared and filed the statement of objections in CMP852014 contending interalia that agreement when read as a whole does not indicate that parties intended to subject themselves to arbitration proceedings and clause 10 of the Agreement dated 15.03.2007 cannot be construed as an `arbitration clause’. Hence, it is contended that present petitions filed by petitioners for appointment of independent Arbitrator is not maintainable. It is further contended that issue which fell for consideration before this court in W.P.33663-33691/2009 and connected matters was with regard to initiation of criminal prosecution proposed by the authority against petitioners/contractors and officials of BMP and having regard to certain claims raised by the 41 petitioners and other contractors, this court had observed that initiation of action against petitioners/contractors and as well as employees of BMP can be looked into after adjudication of claims raised by petitioners/contractors in terms of clause 10 of the agreement. Hence, it is contended that no finding has been recorded by this court while disposing of these writ petitions with regard to clause 10 being an arbitration clause, but on the other hand finding of this court would only indicate that Commissioner should consider the dispute raised by the contractors in terms of clause 10. It is also contended that even otherwise clause 10 of subject agreement cannot be construed as an arbitration clause and said clause is engrafted in the agreement only to prevent delay and stoppage of work and it does not spell out the intention of the parties to get the dispute adjudicated through arbitration. It is further contended that Commissioner, BMP not being an independent authority, it cannot be visualized that parties had invested the said authority with the powers to 42 adjudicate upon the rights of the parties to the dispute so as to construe said clause as an arbitration agreement.

5. Respondent has further contended that an arbitration agreement can come into existence provided ingredients of Section 7 and 2(1)(a) of the Act is attracted and only then this court would have jurisdiction to consider the claim for reference to arbitration. It is further contended that remedy available to the petitioners is to approach the Civil court by filing a suit for recovery and clause 11.1 of the agreement dated 15.03.2007 would support the stand of the respondent namely in the event of petitioners/contractors not being satisfied with the decision rendered by the Commissioner, BMP in exercise of his power under clause 10 of subject agreement they would be entitled to approach the jurisdictional Civil Court and as such their claim for appointment of an independent Arbitrator is untenable. On these grounds respondent has sought for dismissal of the petitions. 43 6. I have heard the arguments of Sri.V.Lakshiminarayana, Sri.Udaya Holla, learned Senior Advocates appearing for petitioners and Sri.S.N.Prashanth Chandra, learned standing counsel appearing for respondent-Corporation.

7. It is the contention of Sri.V.Lakshminarayana, learned Senior Counsel appearing for petitioners that despite raising of claims by petitioners and seeking for its adjudication as per clause 10 and as agreed to between the parties under agreement dated 15.03.2007, legitimate demands made by the petitioners having not been acceded to by the respondent, petitioners have been perforced to approach this Court invoking Section 11(6) of the Act. It is contended that parties have agreed to resolve their disputes or differences arising out of agreement dated 15.03.2007 through a named arbitrator, as provided under Clause 10 of the subject agreement and respondent having failed to 44 comply with the demand made by petitioners and on account of named Arbitrator refusal to adjudicate the claims has given rise to a cause of action for the petitioners to invoke Section 11(6) of the Act for appointment of a independent sole Arbitrator.

8. It is the contention of Sri.V.Lakshminarayana, learned Senior Counsel that Clause 10 of agreement dated 15.03.2007 provides for a designated or named arbitrator, who is required to adjudicate all disputes arising between parties and hence, notice dated 07.07.2011, Annexure-J, came to be issued by the petitioners indicating thereunder that on account of respondent having failed to adjudicate the petitioners claim and as such petitioners have notified the respondent about its intention to seek for an independent arbitrator being appointed. He further contends that this Court in exercise of power under Section 11(6) read with Section 11(8)(b) of the Act, can appoint an arbitrator for adjudicating the disputes raised by petitioner. 45 9. Elaborating his submission, he would draw the attention of the Court to the initial notice issued by petitioners on 23.12.2008, Annexure-D, whereunder petitioners have listed out their nature of claims and contends said dispute having not been adjudicated by the respondent as per clause 10, petitioners were perforced to issue one more notice dated 01.12.2009, Annexure-E and despite issuance of such notices, which was also followed up by issuing another notice dated 23.06.2010 invoking Clause 10 of agreement dated 15.03.2007 and seeking for adjudication of the claims by the named arbitrator, which did not yield any positive result. It is further contended that some of the contractors were perforced to approach this Court in W.P.Nos.4250-4278/2010 seeking for consideration of their case for extension of benefit of clause 32 of the Pre-bid meeting proceedings which ended in disposal of the said writ petition by order dated 30.06.2010 Annexure-G by referring the disputes raised by the 46 petitioners therein to the Commissioner, BMP for being adjudicated along with the claims which were subject matter of earlier writ petition namely W.P.33663-91/2009 disposed of on 08.06.2010. It is contended that pursuant to said direction issued by this court petitioners had submitted a representation on 18.09.2010 Annexure-H to respondent reiterating their claim and also requesting the Commissioner, BMP to adjudicate their pending claims as Arbitrator and on account of demand made therein having not been complied, petitioners issued a notice dated 07.07.2011 Annexure-J demanding thereunder to consider their claims.

10. He would submit that directions issued by this court in W.P.33663-91/2010 along with connected matters and also direction issued in W.P.Nos.42570-578/2010 having not been complied with has perforced the petitioners to seek for an independent arbitrator being appointed, since petitioners have reasonable apprehension of said named 47 arbitrator being biased against the petitioners on account of he having referred certain issues for criminal investigation and has also directed authorities to initiate criminal prosecution against petitioners as well as some of the officials of the corporation and thereby petitioners have an apprehension that they would not get justice at the hands of Commissioner, BMP, and he cannot be a Judge in the cause since he has already taken certain decisions in the interest of the corporation and against the petitioners relating to claims of the petitioners. Hence, it is contended that this court while exercising power under section 11(6) of the Act is empowered to appoint an independent arbitrator for adjudicating the disputes between the parties in place of named Arbitrator when material on record discloses that named Arbitrator is likely to be biased against petitioners.

11. He would also contend that Section 11(6) of the Act provides for appointment of an independent arbitrator particularly when there is a failure on the part of 48 respondent to concur with the demand made by a party to the agreement and as such, he would seek for an independent arbitrator being appointed. Sri.V.Lakshminarayana, learned Senior Counsel would also contend that as to whether dispute raised by the petitioners is an arbitrable dispute or not; whether there exists a arbitration clause or not, are all issues which can be adjudicated by the arbitral Tribunal itself as provided under Section 16 of the Act. He would also submit that an arbitral Tribunal can rule even on its jurisdiction. In that view of the matter, he seeks for an independent arbitrator being appointed by this Court to adjudicate the claim of petitioners.

12. He would also contend that parties had agreed to a specific procedure under the subject agreement for resolving all disputes arising out of subject agreement, and on account of failure on the part of respondent in not adhering to the agreed procedure, it has given rise for cause 49 of action to the petitioners to seek for appointment of an independent arbitrator. In support of his submissions he has relied upon the following Judgments:

1. 1924 SIND132– Firm of N.D Jaggi and Co. Vs Firm of Ganga Ram Vishendfas 2. (2003)7 SCC418– Bihar State Mineral Development Corporation and another Vs Encon Builders Pvt. Ltd.

3. (2009)8 SCC520– Indian Corporation Limited and others Vs Raja Transport Private Limited 4. (2010)6 SCC394– Denel (Proprietary) Limited Vs Bharat Electronics Limited and another 5. (2012)2 SCC759– Denel (Proprietary) Limited Vs Ministry of Defence 6. (2012)6 SCC384– Bipromasz Bipron Trading SA Vs Bharat Electronics Limited (BEL) 7. (2013)4 SCC35– Deep Trading Company Vs Indian Oil Corporation and others 8. (2014) 6 SCC677– Swiss Timing Limited Vs Commonwealth Organising Committee 9. (2000)8 SCC151– Datar Switchgears Ltd. Vs Tata Finance Ltd., and another 10. (2007) 5 SCC304– Ace Pipeline Contracts (P) Ltd. Vs Bharat Petroleum Corporation Ltd. Games 2010 50 11. (1980)4 SCC556– Smt.Rukmanibai Gupta Vs Collector, Jabalpur and others 12. (2007) 5 SCC28– Punjab State and others Vs Dina Nath 13. (2007) 5 SCC179– Jagdish Chander Vs Ramesh Chander and others 14. (2011)7 SCC406– State of Orissa and others Vs Bhagyadhar Dash 15. (2009) 2 SCC55– Visa International Limited Vs Continental Resources (USA) Limited 16. (2012)1 SCC361– Powertech World Wide Limited Vs Delvin International General Trading LLC17 AIR2014SCW39– Arasmeta Captive Power Company Private Limited Vs Lafarge India Private Limited 18. (2014)5 SCC1– Enercon (India) Limited and others Vs Enercon GMBH and another 19. (2014)5 SCC68– Today Homes and Infrastructure Private Limited Vs Ludhiana Improvement Trust and another 13. Sri.Udaya Holla, Learned Senior Counsel also appearing for petitioners in C.M.P.No.85/2014 and other connected matters contends that this court had issued 51 directions in the writ petition Nos.33663-691/2009 by order dated 08.06.2010 and on account of same having not been complied, petitioners have approached this court for appointment of an independent arbitrator. In support of his submissions he has relied upon the following Judgments:

1. 2007(5)SCC28– Punjab State and others Vs Dina Nath 2. (2013)4 SCC35– Deep Trading Company Vs Indian Oil Corporation and others 3. (2012)6 SCC384– Bipromasz Bipron Trading SA Vs Bharat Electronics Limited (BEL) 4. (1994)1 SCC235– State of West Bengal Vs National Builders 5. (2003)7 SCC418– Bihar State Mineral Development Corporation and another Vs Encon Builders (I) (P) Ltd.

14. Per contra, Sri.S.N.Prashanth Chandra, learned counsel appearing for respondent-Corporation would reiterate the contentions raised in the statement of objections and contends that there is no arbitration clause 52 in the agreement dated 15.03.2007 and reading of clause 10 in its entirety would clearly indicate that it is not in the nature of an arbitration clause providing for referring the dispute to an arbitrator. He would also submit that when clause 10 is read along with clause 11.1 of the subject agreement it would indicate that parties have right to approach the Civil Court which suggests that there is no arbitration clause. He would also contend that when it is agreed between the parties that pending decision on a dispute raised before the Commissioner, BMP parties are required to continue to perform their obligations without prejudice to a final adjustment in accordance with the decision of the Commissioner, BMP itself suggests that Commissioner, BMP is not clothed with the power to adjudicate the claims of the parties. In support of his submissions he has relied upon the following judgments:

1. Laws (SC) -2014 -4-18 – Karnataka Power Transmission Corporation Limited Vs Deepak Cables (India) Ltd. 53 2. (2014)2 SCC201– P.Dasaratharama Reddy Complex Vs Government of Karnataka and another 3. (1999)2 SCC166– Bharat Bhushan Bansal Vs U.P.Small Industries Corporation Ltd., Kanpur 4. ILR2012Kar 4446 – Space Infra Build (India) Pvt. Ltd., represented by its Director Vs Dell International Services India Pvt. Ltd.

5. (2010)5 SCC306 Indowind Energy Limited Vs Wescare (India) Limited and another 6. (1998)3 SCC573– K.K.Modi Vs K.N.Modi and others Hence, he prays for dismissal of the petitions.

15. Having heard the learned advocates appearing for the parties this court is of the considered view that following points would arise for consideration.

1. Whether clause 10 of the agreement dated 15.03.2007 is an arbitration clause, whereunder parties have agreed to resolve all disputes arising 54 out of the said agreement to be adjudicated by a named arbitrator namely Commissioner, BMP?.

2. If the answer to the above question is in affirmative; then, whether named arbitrator has to be appointed or an independent arbitrator has to be appointed on account of certain steps having been taken by the named arbitrator which can be construed as element of bias being present or named Arbitrator himself should be appointed?.

3. What order?. RE: POINT NO.1:

16. In order to adjudicate the point formulated hereinabove it would be necessary to extract clause 10 of the agreement dated 15.03.2007 which reads as under: Clause 10: Dispute Resolution “Save where expressly stated to the contrary in this agreement, any dispute, difference or 55 controversy of whatever nature between the parties, howsoever arising under, out of or in relation to this agreement, shall in the first instance be attempted to be resolved amicably by meetings between the parties. Any dispute, which is not amicably resolved by the parties, shall be finally settled by the Commissioner, BMP, whose decision shall be final and binding on both the parties. Pending submission of and/or decision on a dispute, the parties shall continue to perform their respective obligation under this agreement without prejudice to a final adjustment in accordance with the decision of the Commissioner, BMP”. Section 2(b) of the Arbitration and Conciliation Act, 1996 indicates “arbitration agreement” means an agreement referred to in section 7 of the Act. Section 7 defines what constitutes an arbitration agreement. It reads as under:

56. in respect of a defined “7. Arbitration agreement.- (1) In this Part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in- (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract”.

17. Perusal of the above provision would indicate that an agreement to constitute arbitration agreement, there should be intention of the parties to enter into such an agreement, and it will have to be gathered from the terms of 57 such agreement. If the terms of the agreement clearly indicate an intention on the part of the parties to the agreement to refer their disputes to an arbitrator for adjudication and have expressed their willingness to be bound by the decision of such arbitrator, it is an arbitration agreement. An arbitration agreement need not be in any particular form. However, it must indicate that parties had agreed that any dispute which arises between them should be referred to arbitration and such agreement must be in writing and must indicate the intention of the parties to treat the decision of such Arbitrator as final. Where there is merely a possibility of the parties agreeing to arbitration in future, as contrasted from an obligation to refer disputes to arbitration, then there is no enforceable and binding arbitration agreement. If the agreement has the elements of an arbitration agreement namely, (1) it is in writing; (2) parties having agreed to refer any disputes between them to the decision of an arbitrator; (3) such arbitrator being empowered to adjudicate upon the disputes by giving 58 opportunity to the parties to put forth their claims; and, (4) parties having agreed that the decision so rendered by the arbitrator would be binding on them, then necessarily it has to be held as an Arbitration Agreement.

18. Thus, when there is a specific and direct expression of intent to have the disputes settled by arbitration, it is not necessary to set out the attributes of an arbitration agreement to construe it an arbitration agreement. Proposing to refer future disputes to arbitration would not be an arbitration agreement.

19. Whether there is an arbitration agreement or not is a jurisdictional issue and unless there is a valid arbitration agreement, the application under section 11 of the Act would not be maintainable. The proceedings under section 11 of the Act is not finding whether there was any contract between the parties or any breach thereof. The exercise would be to find out whether arbitration agreement is in 59 existence as per section 7 of the Act. It has been held by the Hon’ble Apex Court in the case of Indowind Energy Limited Vs Wescare (India) Limited and another reported in AIR2010SC1793that scope of examination of the agreement by the Chief Justice or his designate under section 11(6) is necessarily to be restricted to the question whether there is an arbitration agreement between the parties and such examination cannot extend to examining the agreement to ascertain the rights and obligations regarding performance of the contract. It has been held by the Apex Court as under: “17. It is not in dispute that Subuthi and Indowind are two independent companies incorporated under the Companies Act, 1956. Each company is a separate and distinct legal entity and the mere fact that the two Companies have common shareholders or common Board of Directors, will not make the two Companies a single entity. Nor will the existence of common shareholders or Directors lead to an inference that one company will be bound by the acts of the 60 other. If the Director who signed on behalf of Subuthi was also a Director of Indowind and if the intention of the parties was that Indowind should be bound by the agreement, nothing prevented Wescare insisting that Indowind should be made a party to the agreement and requesting the Director who signed for Subuthi also to sign on behalf of Indowind.

19. Clause 11 of the agreement dated 24.2.2006 categorically states that the agreement shall be null and void and of no effect whatsoever unless it is expressly approved by the respective Board of Directors/shareholders of Wescare, Subuthi and Indowind. It is admitted that the Board of Directors of Wescare and Subuthi approved the agreement. But the Board of Directors or the shareholders of Indowind did not approve the agreement. In the absence of such approval by Indowind, and in the absence of Indowind being a party or signatory to the agreement dated 24.2.2006, it is un-understandable as to how Indowind can be deemed to be a party to the agreement dated 24.2.2006 and consequently a 61 party to the arbitration agreement contained therein”.

20. It has been held by the Hon’ble Apex Court in the case of Smt.Rukmanibai Gupta Vs Collector, Jabalpur and others reported in (1980) 4 SCC556that arbitration agreement need not be in any particular format and what is required to be ascertained is whether parties had agreed for their disputes being referred to arbitration. It came to be held by Apex Court as under: “6. Does Clause 15 spell out an arbitration agreement?. Section 2(a) of the Arbitration Act, 1940, defines 'arbitration agreement' to mean a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not. Clause 15 provides that any doubt, difference or dispute, arising after the execution of the lease deed touching the construction of the terms of the lease deed or anything therein contained or any matter or things connected with the said lands or the working or non-working thereof or the amount or payment of 62 any rent or royalty reserved or made payable thereunder, the matter in difference shall be decided by the lessor whose decision shall be final. The reference has to be made to the lessor and the lessor is the Governor. His decision is declared final by the terms of the contract. His decision has to be in respect of a dispute or difference that may arise either touching the construction of the terms of the lease deed or disputes or differences arising out of the working or non-working of the lease or any dispute about the payment of rent or royalty payable under the lease deed. Therefore, Clause 15 read as a whole provides for referring future disputes to the arbitration of the Governor. Arbitration agreement is not required to be in any particular form. What is required to be ascertained is whether the parties have agreed that if disputes arise between them in respect of the subject- matter of contract such dispute shall be referred to arbitration, then such an arrangement would spell out an arbitration agreement. A passage from Russel on Arbitration, 19th Edn., p.59 may be referred to with advantage: If it appears from the terms of the agreement by which a matter is submitted to a person's 63 decision that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquiry and hear the respective cases of the parties and decide upon evidence laid before him, then the case is one of an arbitration. In the clause under discussion there is a provision for referring the disputes to the lessor and the decision of the lessor is made final. On its true construction it spells out an arbitration agreement”. An Arbitration Clause need not necessarily indicate as to what are the duties required to be performed by the Arbitrator. It has been held by the Apex Court in Mallikarjun Vs Gulbarga University reported in (2004) 1 SCC372to the following effect: “16.Once Clause 30 is constituted to be a valid arbitration agreement, it would necessarily follow that the decision of the Arbitrator named therein would be rendered only upon allowing the parties to adduce evidence in support of their respective claims and counter-claims as also upon hearing 64 the parties to the dispute. For the purpose of constituting the valid arbitration agreement, it is not necessary that the conditions as regards adduction of evidence by the parties or giving an opportunity of hearing to them must specifically be mentioned therein. Such conditions, it is trite are implicit in the decision-making process in the arbitration proceedings. Compliance with the principles of natural justice inheres in an arbitration process. They, irrespective of the fact as to whether recorded specifically in the arbitration agreement or not are required to be followed. Once the principles of natural justice are not complied with, the award made by the Arbitrator would be rendered invalid. We, therefore, are of the opinion that the arbitration clause does not necessitate spelling out of a duty on the part of the arbitrator to hear both parties before deciding the question before him. The expression “decision” subsumes adjudication of the dispute. Here in the instant case, it will bear repetition to state, that the disputes between the parties arise out of a contract and in relation to matters specified therein and, thus, were required to be decided and such decisions are not only final 65 and binding on the parties, but they are conclusive which clearly spells out the finality of such decisions as also their binding nature”. However, if the clause in an agreement is pressed into service to be construed as an Arbitration clause and said clause would indicate that parties if not being satisfied with the decision of the named person, would be entitled to approach competent court for settlement of such dispute then it would not be an “Arbitration Clause”. For this proposition Judgments of Hon’ble Apex Court in the case of P.Dasaratharama Reddy Complex Vs Government of Karnataka and anr reported in (2014)2 SCC201(vide paragraph

27) and Karnataka Power Transmission Corporation Ltd., and anr Vs M/s.Deepak Cables (India) Ltd., reported in AIR2014SC1626(vide paragraphs 22 and

23) can be looked up. Likewise if dispute arises and several claims arise thereunder for being adjudicated and the dispute resolution 66 clause in the agreement would indicate that in respect of few claims decision would be rendered by a named Engineer and his decision would be final in that regard and simultaneously in respect of remaining claims it would be adjudicated by the Managing Director and decision rendered by him thereunder would be final, would not render such clause in the agreement to be construed as an Arbitration Clause. This view is supported by the Judgment of the Hon’ble Apex Court in the case of Bharat Bhushan Bansal Vs U.P.Small Industries Corporation Ltd., Kanpur reported in (1999)2 SCC166whereunder it has been held as follows: “5. In the present case, reading clauses 23 and 24 together, it is quite clear that in respect of questions arising from or relating to any claim or right, matter or thing in any way connected with the contract, while the decision of the Executive Engineer is made final and binding in respect of certain types of claims or questions, the decision of the Managing Director is made final and binding in respect of the remaining claims. Both 67 the Executive Engineer as well as the Managing Director are expected to determine the question or claim on the basis of their own investigations and material. Neither of the clauses contemplates a full-fledged arbitration covered by the Arbitration Act.” Hon’ble Apex Court in the case of K.K.Modi Vs K.N.Modi and others reported in (1998)3 SCC573while examining as to what are the attributes which must be present for an agreement to be considered as an arbitration agreement, has held as under: “17. Among the attributes which must be present for an agreement to be considered as an arbitration agreement are : (1) The arbitration agreement must contemplate that the decision of the tribunal will be binding on the parties to the agreement, (2) that the jurisdiction of the tribunal to decide the rights of parties must derive either from the consent of the parties or from an order of the Court or from a statute, the terms of which make it clear that the process is to be an arbitration, 68 (3) the agreement must contemplate that substantive rights of parties will be determined by the agreed tribunal, (4) that the tribunal will determine the rights of the parties in an impartial and judicial manner with the tribunal owing an equal obligation of fairness towards both sides, (5) that the agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law and lastly, (6) the agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the tribunal.

18. The other factors which are relevant include, whether the agreement contemplates that the tribunal will receive evidence from both sides and hear their contentions or at least give the parties an opportunity to put them forward; Whether the wording of the agreement is consistent or inconsistent with the view that the process was intended to be an arbitration, and whether the agreement requires the tribunal to decide the dispute according to law. 69 20. The authorities thus seem to agree that while there are no conclusive tests, by and large, one can follow a set of guidelines in deciding whether the agreement is to refer an issue to an expert or whether the parties have agreed to resolve disputes through arbitration.

21. Therefore our courts have laid emphasis on (1) existence of disputes as against intention to avoid future disputes; (2) the tribunal or forum so chosen is intended to act judicially after taking into account relevant evidence before it and the submissions made by the parties before it; and (3) the decision is intended to bind the parties. Nomenclature used by the parties may not be conclusive. One must examine the true intent and purport of the agreement. There are, of course, the statutory requirements of a written agreement, existing or future disputes and an intention to refer them to arbitration. (Vide Section 2 Arbitration Act 1940 and Section 7 Arbitration and Conciliation Act, 1996)”. The question whether there is an Arbitration Agreement and whether the party who has applied under 70 section 11 of the Act, is party to such an agreement is an issue which will have to be examined in the background of “Arbitration Clause” pressed into service.

21. It is in this background clause 10 of the subject agreement dated 15.03.2007 requires to be examined. A perusal of clause 10 would indicate that parties were at ad idem insofar as mode and method in which dispute resolution between them should take place. The words `save where expressly stated to the contrary in this agreement’ in clause 10 of subject agreement would clearly indicate that unless the agreement itself providing for those disputes being resolved as agreed therein all disputes was agreed to be resolved as per clause 10. The words `any dispute, difference or controversy of whatever nature between the parties, howsoever arising under, out of or in relation to this agreement’ found in clause 10 clearly suggest that both parties had agreed that all or any dispute arising out of the subject agreement at the first instance is 71 to be attempted to be resolved amicably by meetings between the parties and they have further agreed that if such of those disputes which are not amicably resolved between them is to be finally settled by the Commissioner, BMP. It is also agreed between them that decision of Commissioner, BMP would be final and binding. Thus, it would emerge that all disputes arising out of the subject agreement at the first instance is to be resolved through meeting of the parties and in the event of there being disagreement only such of those disputes which are not resolved through such meetings is to be resolved by the Commissioner, BMP. Thus, the words used in clause 10 namely `Any dispute’ and `finally settled’ would acquire significance. The intention of the parties has to be gathered from the clause found in the agreement. The first paragraph of clause 10 would leave no doubt when read plainly that any dispute, difference or controversy of whatsoever nature would mean and include all disputes arising out of the subject matter has to be resolved 72 amicably by meeting between the parties. In other words it is agreed to between the parties that whatever may be the dispute between them relating to subject agreement, parties are required to make an attempt to sit across and resolve such disputes. There may be instances of where the number of disputes arising out of subject contract being more than one and parties may arrive at a settlement in respect of few items only, in the course of such meeting and there may be instances where certain disputes is not resolved between them. In such an event namely if certain issues or certain disputes or all issues or in other words entire dispute is not resolved at such meeting same requires to be adjudicated by a named Arbitrator/adjudicator. In this background the parties to the subject agreement have agreed that only such of those disputes which is not amicably resolved by them in the meeting held between them or such unresolved disputes would be referred to the Commissioner, BMP for being settled by him and they have also agreed that his decision 73 would be final and binding on both of them. The Hon’ble Apex Court in the case of Karnataka Power Transmission Corporation Ltd. and anr Vs M/s.Deepak Cables (India) Ltd., reported in 2014 AIR SCW2134was examining as to what constitutes an arbitration agreement after considering catena of Judgments which has also been pressed into service by the learned advocates appearing for the parties has held that unless an arbitration agreement stipulates that parties having agreed to submit all or certain disputes which have arisen or which may arise in respect of a defined legal relationship, whether contractual or not there cannot be reference to arbitrator. It has been held by the Apex Court as under: “9. From the aforesaid provision, it is graphically clear that unless an arbitration agreement stipulates that the parties agree to submit all or certain disputes which have arisen or which may arise in respect of defined legal relationship, whether contractual or not, there cannot be a reference to an arbitrator. To elaborate, it conveys 74 that there has to be intention, expressing the consensual acceptance to refer the disputes to an arbitrator. In the absence of an arbitration clause in an agreement, as defined in sub-section (4) of Section 7, the dispute/disputes arising between the parties cannot be referred to the arbitral tribunal for adjudication of the dispute”.

22. Having referred to a three Judge Bench decision in State of UP Vs Tipper Chand reported in AIR1980SC1522Apex Court has held that in the light of clause 22 found in the agreement which was under consideration so as to find out whether the stipulations therein spelt out an arbitration clause held that in that context the three Judge Bench had approved the decisions of AIR1947Lahore 215, AIR1961J & K58and AIR1966Punjab 436 that High Courts had rightly interpreted the clause providing for arbitration whereas the clause 22 did not contain any express arbitration agreement, nor such an agreement can be spelled out from its terms by implication since there was 75 no mention in it of any dispute much less of a reference thereof and accordingly it came to be held there was no arbitration agreement between parties.

23. As to whether dispute arising between the department and contractor agreed to be referred to a named arbitrator and also agreeing for his decision to be final and acceptable to both parties came to be considered by the Hon’ble Apex Court in Punjab State and others Vs Dina Nath reported in AIR2007SC2157(2007)5 SCC28and held that the mentioning of the word `dispute’ is to be treated as providing for arbitration. It has been held by Apex Court in said case as under: “14. The words "any dispute" appears in Clause 4 of the Work Order. Therefore only on the basis of the materials produced by the parties in support of their respective claims a decision can be arrived at in resolving the dispute between the parties. The use of the words 'any dispute' in Clause 4 of the Work Order is wide enough to include all 76 disputes relating to the said Work Order. Therefore, when a party raises a dispute for non- payment of money after completion of the work, which is denied by the other party, such a dispute would come within the meaning of 'arbitration agreement' between the parties. Clause 4 of the Work Order also clearly provides that any dispute between the department and the contractor shall be referred to the Superintending Engineer, Hydel Circle No.1, Chandigarh for orders. The word 'orders' would indicate some expression of opinion, which is to be carried out, or enforced and which is a conclusion of a body (in this case Superintending Engineer, Hydel Circle No.1, Chandigarh). Then again the conclusion and decision of the Superintending Engineer will be final and binding on both the parties. This being the position in the present case and in view of the fact that Clause 4 of the Work Order is not under challenge before us, the decision that would be arrived at by Superintending Engineer, Hydel Circle No.1, Chandigarh must also be binding on the parties as a result whereof Clause 4 must be held to be a binding arbitration agreement”. 77 24. The Hon’ble Apex Court in Deepak Cables case referred to supra noticed its earlier judgment in the case of Jagdish Chander Vs Ramesh Chander and others reported in AIR2000SC1379and held if the attributes or elements of an arbitration is present it would amount to arbitration agreement as otherwise not. It has held as under: “19. In Jagdish Chander (AIR2000SC1379 (supra), the Court, after referring to the earlier decisions, culled out certain principles with regard to the term “arbitration agreement”. The said principles basically emphasize on certain core aspects, namely, (i) that though there is no specific form of an arbitration agreement, yet the intention of the parties which can be gathered from the terms of the agreement should disclose a determination and obligation to go to arbitration; (ii) non-use of the words “arbitration” and “arbitral tribunal” or “arbitrator” would not detract from a clause being interpreted as an arbitration agreement if the attributes or elements of arbitration agreement are established, i.e., (a) The agreement should be in writing. (b) The parties 78 should have agreed to refer any disputes (present or future) between them to the decision of a private tribunal. (c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving due opportunity to the parties to put forth their case before it. (d) The parties should have agreed that the decision of the private tribunal in respect of the disputes will be binding on them; and (iii) where there is specific exclusion of any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement, it would not be an arbitration agreement. In this context, the two-Judge Bench has given some examples and we think it apt to reproduce the same: “For example, where an agreement requires or permits an authority to decide a claim or dispute without hearing, or requires the authority to act in the interests of only one of the parties, or provides that the decision of the authority will not be final and binding on the parties, or that if either party is not satisfied with the decision of the authority, he may file a 79 civil suit seeking relief, it cannot be termed as an arbitration agreement.” In Deepak Cables case referred to supra the Hon’ble Apex Court was also examining as to whether language employed in clause 48 of the agreement would indicate that parties had agreed to settle their disputes through arbitration. It came to be held as under: “22. On a careful reading of the said clause xxx necessary obligation under the contract. The said clause, as we understand has been engrafted to avoid delay and stoppage of work and for the purpose of smooth carrying on of the works. It is interesting to note that the burden is on the contractor to carry out the works with due diligence after getting the decision from the engineer until the completion of the works. Thus, the emphasis is on the performance of the contract. The language employed in the clause does not spell out the intention of the parties to get the disputes adjudicated through arbitration. It does not really provide for resolution of disputes”. 80 25. Having held said clause did not provide for resolution of dispute by arbitration had taken note of yet another clause in the said agreement namely clause 4.1 which provided for `that all the differences or disputes arising out of the agreement or touching the subject matter of the agreement’ shall be decided by a competent court at Bangalore as a additional factor to arrive at a conclusion that parties had agreed for disputes and differences being left to be adjudicated by a competent Civil Court and when these two clauses namely clause 48 read in conjunction with clause 4.1 establishes that there is no arbitration clause in the agreement, the plea of existence of arbitration agreement came to be negatived.

26. In this background, when I turn my attention back to clause 10 of the subject agreement the irresistible conclusion which will have to be drawn is to hold that clause 10 of subject agreement would indicate that all 81 necessary ingredients to constitute a valid arbitration agreement is present namely: (i) Subject Agreement dated 15.03.2007 is in writing; (ii) Both parties have agreed to refer any dispute, difference or controversy of whatever nature arising out of or in relation to the subject agreement to be resolved finally by the Commissioner, BMP if it is not resolved amicably in the meeting; (iii) Commissioner, BMP has been empowered to adjudicate the dispute between the parties; and (iv) Both parties have agreed the decision of Commissioner, BMP would be final and binding on them.

27. Mere non use of the word `arbitration’, `arbitral tribunal’ or `arbitrator’ would not be a ground to hold 82 clause 10 is not an arbitration agreement, since clause 10 has all the trappings of an arbitration agreement.

28. In that view of the matter Point No.1 formulated herein above deserves to be answered in the affirmative and accordingly it is answered. Thus, it takes me to adjudicate Point No.2 formulated hereinabove. RE: POINT NO.2:

29. Perusal of clause 10 would indicate that the parties to the subject agreement dated 15.03.2007 had agreed for such of those disputes which the parties would be unable to amicably settle amongst themselves by meeting would only be referred to the Commissioner, BMP for being settled by him.

30. If the arbitration agreement provides for arbitration by a named arbitrator, the courts should normally give effect to the provisions of the arbitration 83 agreement. The court in the normal course would make an appointment in terms of agreed procedure. For this proposition the Judgment of the Hon’ble Apex Court in the case of Indian Oil Corporation Ltd., and others Vs Raja Transport Private Limited reported in (2009) 8 SCC520can be looked up. The fact that the named arbitrator is an employee or officer of one of the parties by itself would not be ground to raise a presumption of bias or about his lack of independence on his part. Where the named arbitrator of the Government or statutory body has nothing do with the execution of the subject contract, there cannot be justification for any one to doubt his independence or impartiality. In the absence of any specific evidence being available in that regard, as held by the Apex Court in the case of Indian Oil Corporation referred to supra, heads of the department of a Government or statutory corporations who are not associated with the contract are considered to be independent and impartial and are not barred from functioning as arbitrator merely because their employer is a 84 party to the contract. It has been held by the Hon’ble Apex court in Indian Oil Corporation case referred to supra to the following effect: “15. It is now well settled by a series of decisions of this Court that arbitration agreements in government contracts providing that an employee of the Department (usually a high official unconnected with the work or the contract) will be the arbitrator, are neither void nor unenforceable. We may refer to a few decisions on this aspect”. “30. We find no bar under the new Act, for an arbitration agreement providing for an employee of a Government/statutory corporation/public sector undertaking (which is a party to the contract), acting as an Arbitrator. Section 11(8) of the Act requires the Chief Justice or his designate, in appointing an arbitrator, to have due regard to:

"11.(8)(a) any qualifications required of the arbitrator by the agreement of the parties; and (b) other considerations as are likely to secure the appointment of an independent or impartial arbitrator". 85 33. Sub- section (2) of section 11 provides that parties are free to agree upon a procedure for appointment of arbitrator/s. Sub-section (6) provides that where a party fails to act, as required under the procedure prescribed, the Chief Justice or his designate can take necessary measures. Sub- section (8) gives the discretion to the Chief Justice/his designate to choose an arbitrator suited to meet the requirements of a particular case. The said power is in no way intended to nullify a specific term of arbitration agreement naming a particular person as arbitrator. The power under sub-section (8) is intended to be used keeping in view the terms of the arbitration agreement.

34. The fact that the named arbitrator is an employee of one of the parties is not ipso facto a ground to raise a presumption of bias or partiality or lack of independence on his part. There can however be a justifiable apprehension about the independence or impartiality of an Employee- Arbitrator, if such person was the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an inferior rank in some other 86 department) to the officer whose decision is the subject matter of the dispute.

35. Where however the named arbitrator though a senior officer of the Government/statutory body/government company, had nothing to do with the execution of the subject contract, there can be no justification for anyone doubting his independence or impartiality, in the absence of any specific evidence. Therefore, senior officer/s (usually Heads of Department or equivalent) of a Government/statutory corporation/ public sector undertaking, not associated with the contract, are considered to be independent and impartial and are not barred from functioning as Arbitrators merely because their employer is a party to the contract.

36. The position may be different where the person named as the Arbitrator is an employee of a company or body or individual other than the State and its instrumentalities. For example, if the Director of a private company (which is a party to the Arbitration agreement), is named as the Arbitrator, there may be a valid and reasonable apprehension of bias in view of his position and 87 interest, and he may be unsuitable to act as an Arbitrator in an arbitration involving his company. If any circumstance exists to create a reasonable apprehension about the impartiality or independence of the agreed or named Arbitrator, then the court has the discretion not to appoint such a person.

37. Subject to the said clarifications, we hold that a person being an employee of one of the parties (which is the State or its instrumentality) cannot per se be a bar to his acting as an Arbitrator. Accordingly, the answer to the first question is that the learned Chief Justice was not justified in his assumption of bias.

48. In the light of the above discussion, the scope of section 11 of the Act containing the scheme of appointment of arbitrators may be summarised thus: (i) Where the agreement provides for arbitration with three arbitrators (each party to appoint one arbitrator and the two appointed arbitrators to appoint a third arbitrator), in the event of a party failing to appoint an Arbitrator within 30 days from the receipt of a request from the other party 88 (or the two nominated arbitrators failing to agree on the third arbitrator within 30 days from the date of the appointment), the Chief Justice or his designate will exercise power under sub-section (4) of section 11 of the Act. (ii) Where the agreement provides for arbitration by a sole arbitrator and the parties have not agreed upon any appointment procedure, the Chief Justice or his designate will exercise power under sub-section (5) of section 11, if the parties fail to agree on the arbitration within thirty days from the receipt of a request by a party from the other party. (iii) Where the arbitration agreement specifies the appointment procedure, then irrespective of whether the arbitration is by a sole arbitrator or by a three-member Tribunal, the Chief Justice or his designate will exercise power under sub- section (6) of section 11, if a party fails to act as required under the agreed procedure (or the parties or the two appointed arbitrators fail to reach an agreement expected of them under the agreed procedure or any person/institution fails to 89 perform any function entrusted to him/it under that procedure). (iv) While failure of the other party to act within 30 days will furnish a cause of action to the party seeking arbitration to approach the Chief Justice or his designate in cases falling under sub- sections (4) & (5), such a time bound requirement is not found in sub-section (6) of section 11. The failure to act as per the agreed procedure within the time limit prescribed by the arbitration agreement, or in the absence of any prescribed time limit, within a reasonable time, will enable the aggrieved party to file a petition under Section 11(6) of the Act. (v) Where the appointment procedure has been agreed between the parties, but the cause of action for invoking the jurisdiction of the Chief Justice or his designate under clauses (a), (b) or (c) of sub-section (6) has not arisen, then the question of the Chief Justice or his designate exercising power under sub-section (6) does not arise. The condition precedent for approaching the Chief Justice or his designate for taking necessary measures under sub-section (6) is that 90 (i) a party failing to act as required under the agreed appointment procedure; or (ii) the parties (or the two appointed arbitrators), failing to reach an agreement expected of them under the agreed appointment procedure; or (iii) a person/institution who has been entrusted with any function under the agreed appointment procedure, failing to perform such function. (vi) The Chief Justice or his designate while exercising power under sub-section (6) of section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause. (vii) If circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded ignore the designated arbitrator and appoint someone else”. 91 31. While exercising power under section 11(6) of the Act the court has to take into consideration the provisions contained in section 11(8) of the Act. In the light of aforesaid provision the Chief Justice or his designate while appointing arbitrator will have to have due regard to the qualifications required of an Arbitrator as agreed to under the agreement and also other considerations as are likely to secure the appointment of an independent and impartial arbitrator. Reading of section 11 of the Act indicates that the emphasis is on the term of the agreement being given effect to as nearly as possible and it would not be mandatory for the Chief Justice or his designate to appoint the named arbitrator and while carrying out the exercise of appointing an arbitrator. The Chief Justice or his designate may deviate from the said path to appoint an Arbitrator other than the named Arbitrator, after recording reasons. The facts of each case which would unfold would tend to indicate whether the named arbitrator would act impartially and his appointment is not likely to cause prejudice to 92 either of the parties or there would not be any apprehension of bias by the named arbitrator on account of his participation in the subject contract even remotely also. To allay such apprehensions it would be just and proper to appoint any independent arbitrator other than named arbitrator when such apprehension is prima facie believed to be true. There cannot be any straight jacket formula in this regard. Thus, in a given case if it is established there is a justifiable apprehension about the independence or impartiality of a named arbitrator, the Chief Justice or his designate in exercise of power under section 11(8) of the Act can appoint an independent arbitrator after recording reasons and after examining such material produced which may indicate that it is likely to create reasonable apprehension in the minds of parties that person named in the arbitration agreement is not likely to act independently or impartially. 93 32. It has been held by the Hon’ble Apex Court that it is not mandatory for the Chief Justice or his designate to appoint named Arbitrator/s and court has power to appoint a person other than the named Arbitrator if the facts tend to indicate that named Arbitrator is not likely to be impartial, in the following Judgments:

1. (2012)6 SCC384– Bipromasz Bipron Trading SA Vs Bharat Electronics Limited (BEL) “48. In view of the aforesaid observations, it would not be possible to reject the petition merely on the ground that this Court would have no power to make an appointment of an arbitrator other than the Chairman-cum-Managing Director or his designate. This Court would have the power to appoint a person other than the named arbitrator, upon examination of the relevant facts, which would tend to indicate that the named arbitrator is not likely to be impartial”.

2. (2008)10 SCC240– Northern Railway Administration Ministry of Railway, New Delhi Vs Patel Engineering Company Limited 94 “12. A bare reading of the scheme of Section 11 shows that the emphasis is on the terms of the agreement being adhered to and/or given effect as closely as possible. In other words, the Court may ask to do what has not been done. The Court must first ensure that the remedies provided for are exhausted. It is true as contended by Mr.Desai, that it is not mandatory for the Chief Justice or any person or institution designated by him to appoint the named arbitrator or arbitrators. But at the same time, due regard has to be given to the qualifications required by the agreement and other considerations”.

33. Keeping in mind these principles in mind when the facts on hand are examined it would indicate that petitioners by representations dated 24.12.2008 Annexure- D, letter dated 01.12.2009 Annexure-E, claim petition dated 23.06.2010 Annexure-F, claim petition dated 18.09.2010 Annexure-H and notice dated 07.07.2011 Annexure-J had requested the respondent to exercise his power to adjudicate the claim of the petitioners as per 95 clause 10 of the subject agreement and there has been inaction on his part all these years. On the other hand the Commissioner, BMP has directed the authorities to deduct the `lead charges’ from the bills of the petitioners and thereby he has prejudged their claim which is the subject matter of the dispute raised by the petitioners. Further Commissioner, BMP without taking any step to adjudicate the claim of the petitioners has on the administrative side in respect of subject agreement directed his sub-ordinate officers to hold an enquiry and has also referred the matter for criminal investigation to be conducted by the Bangalore Metropolitan Task Force. Thus, having participated in the process of examining the correctness or otherwise of the stand taken by the petitioners by Commissioner, BMP it would clearly indicate that he has dealt with the subject matter and has also participated in the process of examining the claims of petitioners and has indicated his view by directing his sub-ordinates to take action against petitioners. Thereby the apprehension of the petitioners 96 about the named arbitrator not being impartial can be held as a reasonable apprehension, which is backed by the action of Commissioner, BMP. This view is supported by the Judgment of Hon’ble Apex Court in the case of Indian Oil Corporation case referred to supra to hold that named Arbitrator would not act independently and impartially.

34. Yet another factor which requires to be noticed by this court is the fact that a direction had been issued by Co-ordinate Bench of this court on 08.06.2010 in W.P.33663-33691/2009 and connected matters directing the Commissioner, BMP to expedite the consideration of the dispute raised by the contractors and to decide on their claims as well as such counter claim that BMP itself had raised against the contractors in withholding the amounts which were claimed by them. Undisputedly said order has not been implemented and in those proceedings no plea came to be raised by respondent that Commissioner, BMP is not the named arbitrator. On the other hand said order 97 came to be accepted by the respondent-corporation which fact would also tilt the scale in favour of the petitioners to arrive at a conclusion that there is an arbitration agreement between the parties and they were ad idem on this issue. Infact in W.P.4250-4278/2010 disposed of on 30.06.2010 by Co-ordinate Bench of this court vide Annexure-G, direction issued in the earlier writ petition came to be reiterated, by reserving liberty to the petitioners to raise claims along with the claims which are already pending consideration before the Commissioner, BMP suggesting thereby that it is an arbitrable dispute and parties had agreed for dispute being resolved through arbitration or in other words conduct of parties would also clearly indicate that there exists an arbitration agreement between the parties and they had agreed to resolve their dispute by arbitration under subject agreement.

35. Last but not the least, notice dated 24.01.2014 issued by the Commissioner calling upon the contractors 98 to appear before him for adjudicating their claims would clearly indicate that Commissioner, BMP has admitted about there being arbitration clause requiring him to adjudicate the claims of the petitioners and as such the plea of the respondent that said notice does not confer any right on the petitioner and other contractors to seek for appointment of arbitrator cannot be accepted and its stand rejected. Hence, I proceed to pass the following:

ORDER

Civil Miscellaneous petitions are hereby (i) allowed. (ii) Hon’ble Justice Sri.Ajit J.

Gunjal, Former Judge of this court is hereby appointed as Arbitrator and he is requested to enter upon reference and arbitrate the dispute and conduct arbitration proceedings at Arbitration Centre, Bengaluru, Kanija Bhavan, Bengaluru in terms of the 99 Arbitration Centre, Karnataka (Domestic and International) Rules, 2012. (iii) No order as to costs. DR/SBN Sd/- JUDGE

Court	Karnataka High Court
Decided On	Mar-17-2015
Case Number	CMP 14/2012
Judge	ARAVIND KUMAR
Appellant	Sri B R Ganesh S/O Late Rajappa
Respondent	The Commissioner

Sri B R Ganesh S/O Late Rajappa Vs. The Commissioner - Court Judgment