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Madhya Pradesh High Court · body

2016 DIGILAW 87 (MP)

Ashoka Infraways Ltd. v. State of M. P.

2016-02-04

PRAKASH SHRIVASTAVA, S.R.WAGHMARE

body2016
ORDER Smt. Waghmare, J. -- 1. By this arbitration appeal under section 37 of the Arbitration and Conciliation Act, 1996 the appellant Ashoka Infraways Limited is aggrieved by order dated 16.2.2015 passed by the Ist Additional District Judge, Dewas in Arbitration Case No.1/15 whereby the learned Judge dismissed the application under section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter called “the Act” for brevity) filed by the appellants holding that the dispute was covered under the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 Act and not under the Act of 1996. 2. Briefly stated the facts of the case are that the Ashoka Infraways Limited was a subsidiary of appellant No.2 Ashoka Buildcon Limited and the appellant No.1 was incorporated as “Special Purpose Vehicle” (SPV) for the purpose of implementing the Dewas Bypass Road Project. Thereby indicating that the appellant No.2 company was engaged inter alia in the business of construction and civil works. It has been submitted by the counsel for the appellants that it was one of the leading highway developers in the country and have executed various prestigious projects on the national as well as state level. That the respondent No.1 State of M.P. through its Principal Secretary, Public Works Department, Bhopal issued bid notice No.13/2000-2001/SAC/Dewas dated 18.7.2001 inviting bids for construction, replacement, periodical renewal and maintenance of Dewas Bypass Road for a total length of 19.8 kilometers and the construction included of one medium bridge, 27 culverts, junctions and rotaries, protection works, toll tax barriers and booth, plantation, fencing, truck parking lay-bye and longitudinal drains etc as fully detailed in the petition. The project was to be under the B.O.T. Scheme, i.e., under the Build Operate Transfer Scheme whereby the contractor has the right to collect the toll and the other revenue from the vehicles and users of the said Project during the concession period. Appellant No.2 Ashoka Buildcon Limited submitted its bid which was accepted by the respondents vide letter dated 17.4.2001. Thereafter to facilitate the process of financing the project, appellant No.1 was incorporated as an SPV by the appellant No.2 for implementing the Project on the agreed terms and conditions. 3. Thereafter on 3.1.2002 an agreement for execution of the project was entered into interse by the appellant No.2 Ashoka Buildcon and appellant No.1 Ashoka Infraways and the respondents agreed to the arrangement vide letter dated 16.01.2003 (Annexure A-3). 3. Thereafter on 3.1.2002 an agreement for execution of the project was entered into interse by the appellant No.2 Ashoka Buildcon and appellant No.1 Ashoka Infraways and the respondents agreed to the arrangement vide letter dated 16.01.2003 (Annexure A-3). Notifications were duly issued on 24.5.2004 and 29.12.2011 (Annexure A-4 and Annexure A-5). The completion certificate was given to the appellants-petitioners on 14.5.2004 and that prior to this letter the respondent State Government vide letter dated 9.3.2004 (Annexure A-6) additional work in terms of the clause 22.7 of the special condition of contract was awarded to the appellants-petitioners and assessed at amount of Rs.10,26,22,743/- and was approved by the additional works committee on 16.1.2006 and, therefore, the appellants-petitioners were entitled to collect toll tax for extra days of the approved additional work. As it is the appellant was entitled to 77 additional days for collecting the toll tax since a delay of 77 days was caused by respondent No.1 in handing over the land to the appellant. Similarly for early completion of the project vide letter dated 24.1.2006 (Annexure A-8) the petitioners-appellants was awarded additional 103 days and thus the appellants-petitioners claimed that they were entitled to collect toll tax for 4102 days (original 3922 + 77 + 103 = 4102 days). However, the additional works approval committee assessed the number of days in consultation with the respondent No.2 Executive Engineer and awarded only 1211 days against the additional work. The same was approved by the Superintendent Engineer and hence the dispute arose and the appellants-petitioners filed an application under section 9 of the 1996 Act since the toll was going to be handed over to a different agency. The learned ADJ, Dewas however, held that the dispute was covered under the Act of 1983 and not under the Act of 1996 and dismissed the application by the impugned order dated 16.2.2015 annexed as Annexure A-16. The appellants therefore filed Writ Petition No.1122/15 under Article 226 of the Constitution of India. The writ Court, however, dismissed the petition as not being maintainable, but granted liberty to challenge the impugned order dated 16.2.2015 in appeal. The petitioner being affected, however filed a review petition urging that the impugned agreement was a concession agreement and amenable to writ jurisdiction as well as provision of the Arbitration Act of 1996. The writ Court, however, dismissed the petition as not being maintainable, but granted liberty to challenge the impugned order dated 16.2.2015 in appeal. The petitioner being affected, however filed a review petition urging that the impugned agreement was a concession agreement and amenable to writ jurisdiction as well as provision of the Arbitration Act of 1996. The review was, however, dismissed by holding that the contract was a “works contract” as defined under the Madhya Pradesh Madhyastam Adhikaran Adhiniyam, 1983. And thereafter by way of precaution the petitioner filed both the arbitration appeal and at the same time also filed an SLP before the apex Court. The apex Court held that “the finding of the High Court, that the dispute between the parties pertains to the works contract; and as per terms of the contract any dispute that arises, the matter would be referred to the M.P. Arbitration Tribunal under the Madhya Pradesh Madhyastam Adhikaran Adhiniyam, 1983; shall not stand in the way of the appellants-petitioners in prosecuting the first appeal. The apex Court held thus : “The aforesaid observation of the Court will not come in the way of the petitioners in prosecuting first appeal under section 37 of the Arbitration and Conciliation Act, 1996, being Arbitration Appeal No.11 of 2015 pending before the Madhya Pradesh High Court.” 4. Counsel for the appellant has vehemently urged the fact that the action of the respondent was grossly arbitrary, unjust and unreasonable. The failure on the part of the respondent to give the additional days after approval and diminishing the legal and valid claim for 1374 days to a meager 186 days was in violation of Article 14 of the Constitution of India and the respondents themselves were responsible for 180 days delay in handing over the said land. Considering the fact that Rs.10,26,22,743/- was already admitted but such a lopsided attitude belied the arbitrary approach and defeated the rightful contractual demand for additional 1374 days. Considering the fact that Rs.10,26,22,743/- was already admitted but such a lopsided attitude belied the arbitrary approach and defeated the rightful contractual demand for additional 1374 days. It was also urged vehemently that the Arbitral Tribunal was precluded from issuing any interim orders under section 17 A of the 1983 Act and in this light the appellant cannot be rendered remediless and till the claims are adjudicated, the appellant would be left without remedy; and hence application had been filed under section 9 of the Act of 1996, but the fact the learned ADJ has erred in holding that the dispute to be considered in accordance with the Act of 1983 and that section 9 of the Act 1996 is not applicable. Further counsel vehemently urged the fact that the additional work approval committee (formed by respondent No.2 itself) as well as the Executive Engineer of the respondent No.2 had already approved of 1194 and 1211 additional toll days respectively on account of the additional work carried out by the appellant. Then it is unfathomable as to how it has come to a decision of accepting only 186 additional toll days as full and final settlement. 5. Counsel also urged that from the reply of the State Government regarding the benefits of the concession agreement and regarding the additional work, it appears that the respondent-State is denying the extension of toll collection days to which the petitioner was entitled as fully stated above. Whereas the learned lower Court had erred in holding that the provisions of the Arbitration and Conciliation Act of 1996 were not applicable to the present dispute. Counsel submitted that the trial Court had also erred in denying opportunity of lawful remedy to the appellant. 6. Per contra, Counsel for the respondents has vehemently urged the fact that the State had already taken over the Toll collection from the appellant on the Dewas Bypass Road and impugned order dated 16.2.2015 passed by the First Additional Sessions Judge, Dewas was in accordance with the provisions of law since the dispute between the parties falls within the purview of works contract and hence the learned Judge has rightly rejected the application under section 9 of the Act of 1996. Besides the appellant also had the alternative remedy to approach the M.P. Arbitration Tribunal under the Madhya Pradesh Madhyastam Adhikaran Adhiniyam, 1983. Besides the appellant also had the alternative remedy to approach the M.P. Arbitration Tribunal under the Madhya Pradesh Madhyastam Adhikaran Adhiniyam, 1983. Moreover section 17A of the Adhiniyam of 1983 also provides for grant of interim relief and the appellant has failed to approach the Arbitration Tribunal; whereas the appellant has filed an application under section 9 of the Act of 1996 which was contrary to the provisions of law. So also clause 26.2 of the agreement also contains the arbitration clause and the fact that the appellant should have referred the matter to the Arbitration Tribunal under section 17A of the Adhiniyam 1983 but chose to refer the impugned application under section 9 of the 1996 Act and has, therefore, been rightly rejected. Counsel vehemently urged the fact that clause (d) of the section 2 of Madhya Pradesh Madhyastam Adhikaran Adhiniyam, 1983 indicates that the dispute has to be regarding claim of money valued at Rs.50,000/- or more relating to any difference arising out of execution or non-execution of a works contract or part thereof. Similarly section 2(1) of the Adhiniyam 1983 defines works contract and three basic ingredients which constitute the works contract are number one, an agreement in writing, one of the party must be the Government and the agreement must be for construction, replacement, periodical renewal and maintenance of Dewas Bypass Road starting from 159/4 of Bhopal-Ujjain Road (SH-18) and joining Km. 577/6 of Agra-Bombay Road (NH-3) intersecting NH-3 in Km. 567/8 and SH-18 in Km. 151/8 (total length of 19.8 Kms.) including construction of one medium bridge, 27 culverts, junctions and rotaries, protection works toll tax barriers and booth, plantation, fenching, truck parking lay-bye and longitudinal drains etc under the BOT Scheme. Hence counsel vehemently urged the fact that the agreement between the parties was a works contract and the appellants have wrongly used the nomenclature as a concessionaire agreement. Counsel submitted that it would be misnomer to call the agreement as such since there is no State support agreement, even the Clause 7 of the N.I.T. clearly provides that the entrepreneur shall not be entitled to Special Tax Concession, therefore, an agreement in the present case is not a concessionaire agreement and falls only within the purview of works contract. Moreover the concessionaire agreement contemplates a tri party agreement as one of its basic ingredients which is missing and a modular concession agreement has been filed along with the reply as Annexure R-1. Counsel denied that there was concessionaire agreement as is alleged by the counsel for the appellant. Referring to clauses 22.6.1 and 22.7 counsel admitted that there was extra work carried out by the appellant. However, the amount of Rs.10.26 crores spent by the appellant was to be adjusted towards 186 extra days granted to the appellants for collection of toll but the appellant was again under misapprehension claiming 1374 days and hence the entire dispute arose between the parties. 7. Counsel for the respondents submitted that proviso to clause 26.2 provided for the appropriate remedy to approach the Arbitration Tribunal constituted under the Adhiniyam 1983. Simpliciter the construction was to be made by the appellant at his own cost (capital). However, consequently as per the scheme of the BOT the petitioner was to recover the capital or money used by him in the construction by collecting the toll for a fixed number of days as stated in the bid by the appellant himself under the principles of yearly Cash Flow Statement and FIRR (Financial Internal Rate of Return) method. Moreover the additional works committee had fixed the number of toll days and in its meeting dated 16.1.2006, the Committee had approved of the extra cost of the additional work at Rs.10,26,22,743/- and additional works of the contract are allotted. The audit took an objection by report dated 9.10.2009 indicating that the advantages were given to the contractor without considering the long completion of work. In fact Counsel vehemently urged that left out work was yet to be certified despite which authorization for collection of toll of 103 and 77 days for the additional work was given. 8. Thereafter the committee comprising of the Chief Engineer, BOT, MPRDC, Chief Engineer, M.P. PWD, Ujjain Zone and the Joint Director, Finance Department scrutinised the entire matter in the meeting dated 28.9.2011 and accepted that the additional work of Rs.10.26 crores was done by the petitioner. The calculation of the toll days was not undertaken as per Annexure-H, clause No.22.7. In it next meeting on 28.12.2011 bifurcating the undone work from the total undone work; it was found to be 9.4 crores. The calculation of the toll days was not undertaken as per Annexure-H, clause No.22.7. In it next meeting on 28.12.2011 bifurcating the undone work from the total undone work; it was found to be 9.4 crores. Therefore, a further committee was constituted and held a meeting on 27.8.2013 and days calculated were 366 as per the terms of the agreement. The Committee also on the said date held that 77 days and 103 toll days calculated by the earlier committee were erroneous and had to be subtracted and calculated appropriately as fully stated in the minutes of meeting. These recommendations thereafter were referred to the Cabinet and the under Secretary, Government of M.P., PWD, Bhopal which communicated the decision of the Cabinet to the Engineer-in-Chief vide letter dated 22.10.2014. 9. Counsel also submitted that the agreement had been executed between the parties on 31.8.2001 and again petitioner further entered into an agreement with the Government by creating a SPV by the name of Ashoka Infraways Ltd. This did not amount to modifying the original agreement nor was the agreement rescinded in any manner. In fact it was clearly specified that if any clause of the agreement was found to be in violation of the letter or the item of the original agreement shall be null and void (Annexure P-5). The word ‘Concession Agreement’ was used in the letter wrongly and wrong phraseology by the Executive Engineer was contrary to the decision of the State Government which has maintained all through out that it is a works contract under the BOT scheme and action as also taken accordingly, but wrong terminology in the letter dated 16.1.2003 has given impression that it was the concession agreement. Besides Counsel urged that the terms and conditions and the various clauses mentioned in the original agreement dated 31.8.2001 were to prevail over the extended agreement and the original agreement contains the clause for referring of any dispute to the Arbitration Tribunal under the provisions of Madhyastam Adhikaran Adhiniyam 1983. 10. Besides Counsel urged that the terms and conditions and the various clauses mentioned in the original agreement dated 31.8.2001 were to prevail over the extended agreement and the original agreement contains the clause for referring of any dispute to the Arbitration Tribunal under the provisions of Madhyastam Adhikaran Adhiniyam 1983. 10. Relying on M/s. Spedra Engineering Corporation Engineers and Contractors, Bhopal v. State of M.P. and others [ 1988 JLJ 601 = AIR 1988 MP 111 ], the Court had held that even if there is no clause for the appointment of an Arbitrator, the M.P. Madhyastham Adhikaran Adhiniyam is a special enactment providing for statutory arbitration arising out of disputes in respect of works contract and would prevail over Arbitration Act in Madhya Pradesh in view of Article 254(2). 11. Also placing reliance on Smt. Kamini Malhotra v. State of M.P. and others [ 2002(5) MPHT 245 ], this Court had held that the work of construction of Water Treatment Plant was a work relating to “works contract” and on combined reading of sections 7 and 20 of M.P. Madhyastham Adhikaran Adhiniyam, 1983, the civil Court’s jurisdiction to entertain and decide any dispute relating to “works contract” was barred and the order of the Court of the ADJ returning the application for presentation to proper forum, affirmed. 12. Counsel for Respondent has vehemently urged the fact that a Full Bench decision in the matter of Shri Shankaranarayana Construction Company v. State of M.P. and others [ 2008(1) JLJ 50 = 2007(4) MPHT 444 (FB)], has categorically held that the 1996 Act expressly saves the provisions of the 1983 Adhiniyam in sub-sections (4) and (5) of section 2 of the 1996 Act, both in respect of statutory arbitrations and arbitrations pursuant to arbitration agreements in respect of disputes arising out of works contracts, from the provisions of Part I of the 1996 Act, which are not inconsistent with the provisions of 1983 Adhiniyam. Hence, the provisions of the 1983 Adhiniyam are not repugnant to the provisions of the 1996 Act and are not void and do not stand impliedly repealed by the 1996 Act. 13. Hence, the provisions of the 1983 Adhiniyam are not repugnant to the provisions of the 1996 Act and are not void and do not stand impliedly repealed by the 1996 Act. 13. Counsel for the respondents has referred to the Farlex Financial Dictionary to state that a concession agreement is an agreement in which a Government especially a local Government, gives preferential treatment to a private sector company and then generally speaking, a concession agreement involves special tax considerations, and is designed to encourage a company to come or to stay in an area and the Government makes concession agreements to promote job growth or stability which is not the present case. The concession agreement is in fact an extension of the works contract whereby additional work was assigned to the petitioner/appellant and the payment was also to be paid by the B.O.T. Scheme which is in the original contract. In this light also there is no substance in the submissions put forth by the counsel for the appellant. Counsel prayed that the appeal be dismissed. 14. On considering the above submissions, this Court is of the opinion that two important questions arise for consideration i.e. (1) whether the contract in dispute is a “works contract” or “concession agreement”? (2) And secondly regarding the dispute whether the provisions of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 Act would apply or provisions under section M.P. Arbitration and Conciliation Act, 1996 would apply. Both the Counsel also relied on Jabalpur Corridor (India) Pvt. Ltd. and another v. M.P. Road Development Corporation Ltd. and others [ 2014(2) MPLJ 276 ], to bolster their submissions. Besides this decision was upheld by the Supreme Court in Special Leave to Appeal (C) No(s).3811/2014; and has attained finality. 15. Before we embark on considering the questions; it is important to note the most important fact that the State respondents have also taken over the toll collections from the petitioner and made a categoric statement that the petitioner is not collecting any toll on Dewas Bypass road at present. 15. Before we embark on considering the questions; it is important to note the most important fact that the State respondents have also taken over the toll collections from the petitioner and made a categoric statement that the petitioner is not collecting any toll on Dewas Bypass road at present. Hence the urgency and efficacy of the application under section 9 of the Arbitration and Conciliation Act 1996 for grant of interim relief before the ADJ Dewas has lost its urgency and efficacy and now the purely legality of the questions remain to be answered whether the contract in dispute would be a works contract or it would be a concession agreement. At this juncture it is also important to note that the dispute between the parties arose on 28.12.2014 during the subsistence/existence of the contract period since the contract period commenced from 24.5.2004 to 31.3.2012 and by the additional contract from 1.4.2012 to 17.12.2015, when the application under section 9 of the 1996 Act was moved. 16. Then placing reliance on Jabalpur Corridor (India) Pvt. Ltd. (supra), we have no hesitation in holding that in the present case it was the Ashoka Buildcon who had to utilise and arrange the funds and after completion of the construction recovers the amount invested by it for completion of the project by way of toll. Thus the project is deemed to be leased out to the petitioners for maintenance as well as collection of the toll and regular entry and exit taking care of the project road, till the expiry of the concession period. Similarly although there is no State support agreement as such to Annexure A-3, dated 16.1.2003 by which the respondent No.2 ratified the arrangement, transfer of the enterprise, implementing the project by appellant No.1 along with appellant No.2 and entered into the agreement on 3.1.2002 for execution of the project is indicative of the fact that the disputed agreement was a concession agreement. Similarly considering clause 22.1.1 of the disputed agreement regarding the Bankability of the agreement appears to be tripartite security and in case of termination of the agreement due to force majeure or otherwise, the payments due and payable to the Entrepreneur would be paid by the Government in the first instance, directly to the lenders to the Entrepreneur. Similarly considering clause 22.1.1 of the disputed agreement regarding the Bankability of the agreement appears to be tripartite security and in case of termination of the agreement due to force majeure or otherwise, the payments due and payable to the Entrepreneur would be paid by the Government in the first instance, directly to the lenders to the Entrepreneur. Similarly under clause 22.1.2 the contractor or the entrepreneur was required to open an escrow account and credit all the revenues from the project and the funds raised for the project to the same before drawing funds from it, this account would be open to inspection to the lenders as well as the Government, so as to be transparent and lend comfort to the lenders. And in this regard also the ratio laid down in the matter of Jabalpur Corridor (India) Pvt. Ltd. (supra), is fully satisfied. It would be, therefore, more appropriate under the circumstances to reproduce the concerned extract in the matter of Jabalpur Corridor (India) Pvt. Ltd. (Supra) [ 2014(2) MPLJ 276 ] as under : “12. The expression ‘works contract’ as defined in the 1983 Act has a restricted meaning and has special and limited connotation and the same does not include detailed design, financing and operation of the contract. The works contract is a lump sum contract wherein the contractor has to quote the amount for execution of the work based on details furnished by the employer. There is no necessity for creation of any Escrow Account in works contract. In works contract the payment is made against the running account bills prepared by contractor and submitted to the employer periodically. Whereas in concession agreement, the concessionaire has to utilise and arrange the funds. The concessionaire under the agreement after completion of the construction recovers the amount invested by him for completion of the project by way of toll. No State support agreement is executed in case of a works contract whereas the same is executed in a case of concession agreement. Under the agreement the petitioners are under an obligation to prepare a detailed design, engineering, financing, procurement, construction, operation and maintenance of the project road. Thus, the project is deemed to be leased out to the petitioners for maintenance as well as collection of toll and regular entry and exit taking care of the project road. Under the agreement the petitioners are under an obligation to prepare a detailed design, engineering, financing, procurement, construction, operation and maintenance of the project road. Thus, the project is deemed to be leased out to the petitioners for maintenance as well as collection of toll and regular entry and exit taking care of the project road. Thus, the project is deemed to be leased out to the petitioners for maintenance as well as collection of toll and regular entry and exit taking care of the project road, till the expiry of the concession period. The agreement provides execution of EPC contract and other contracts for execution of the project. The petitioner was also at liberty to employ other contractors for items of works as considered necessary for execution of the project. The petitioner, respondent No.1 as well as the State Government have entered into an agreement, namely, State support agreement on 14.4.2003 in pursuance of the concession agreement. From perusal of the State support agreement, it is evident that it forms an integral part of concession agreement. By no stretch of imagination State support agreement can be termed as ‘works contract’, and both the aforesaid agreements contain provisions with regard to resolution of dispute under 1996 Act. For this reason also concession agreement cannot be termed as works contract. The dispute between the parties has to be resolved under the provisions of the 1996 Act. (2011)13 SCC 261, (2012)3 SCC 513 and Civil Appeal No.1888-889 of 2011 (SC), A.P.S. Kushwaha (SSI Unit) v. Municipal Corporation, Gwalior and others dated 17.2.2011, Rel. (Paras 11, 12, 18 and 19)” 17. Consequently the said case has also considered the fact and dichotomy regarding the resolving of the dispute under the Arbitration and Conciliation Act of 1996 or to resolve the dispute under the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 Act. Both the parties clearly entered into the agreement as a ‘concession agreement’ and had taken such a decision as is evident from clauses 24, 25 and 26 of the agreement. 18. We are reinforced in our decision due to the use of the term ‘concession’ used at several places in the agreement itself. Both the parties clearly entered into the agreement as a ‘concession agreement’ and had taken such a decision as is evident from clauses 24, 25 and 26 of the agreement. 18. We are reinforced in our decision due to the use of the term ‘concession’ used at several places in the agreement itself. Clause 2 of the definitions has defined concession right meaning the facility of Dewas Bypass including all related works to maintain this facility and the right to collect the toll from the beneficiaries, retain the toll and transfer the facility to the Department on completion of the concession period. Secondly 2(q) defines concession Area meaning the area within right of way between km. 159/4 of Bhopal-Ujjain road etc. Then 2(r) defines ‘Contract Period’ from the commencement of the date till the date of transfer of the facility back to the department thereby indicating that the concession area is to be used in the concession period. Similarly 2(u) refers of the same period and toll to be collected only after notification of the concession period. Next in clause 4.1 the land for the proposed project will be handed over on a licence basis to the Entrepreneur for the concession period, thereby clearly indicating that it was a ‘concessional agreement’. Although clause 7.1 does not give any concessional tax benefits to the contractor but the same is to be considered in juxtaposition to the fact that the scheme was BOT as framed by the State Government (Build, Operate, Transfer). The word ‘concession’ has been used repeatedly in the agreement and although it has been discarded cursorily by the counsel for the respondents State in the reply stating that a misnomer has been used by the Executive Engineer but considering the clauses 24, 25 and 26, it is evident that it is a ‘concession agreement’. Clause 24.3 is the toll tax authorization and by 24.3 a concession is given to the appellantspetitioners in case of completion of work earlier than the stipulated period then additional days of authorisation for collection of toll was made. Similarly clause 25 is a force majeure and is the security clause indemnifying the contractor by extending the toll collection for contingencies. Similarly clause 25 is a force majeure and is the security clause indemnifying the contractor by extending the toll collection for contingencies. When this read in conjunction or juxtaposition with clause 22.1.1 then the tripartite security is evident since in case of termination of contract due to force majeure or otherwise the payments due and payable to the entrepreneur would be paid by the Government and entrepreneur was also requested to open an ESCROW account and deposit all the revenue from the project into it. This variable satisfies the ingredients as put forth by the ratio laid down in the matter of Jabalpur Corridor (supra). 19. Finally considering clause 26 of the impugned agreement which pertains to settlement of disputes and is of crucial importance to the substantive question raised in the petition as well as appeal, it categorically states that if the dispute regarding the breach or termination thereof exists between the parties and cannot be settled within 30 days, the dispute is referred to arbitration under the provisions of Arbitration and Conciliation Act, 1996 and that the arbitration panel decision shall be final and binding on the parties. However, the provision has been invoked by the petitioners-appellants stating that in section (d) of section 2 of Madhya Pradesh Madhyastham Adhikaran Adhiniyam 1983 is involved then the matter shall be regulated by the Act of 1983 and the Arbitration Tribunal shall be constituted under section 3 of the said Act and it is this point which is a crucial important in the present petition. 20. Although the counsel for the respondents has relied on Smt. Kamini Malhotra (supra), the said decision was passed on the fact that construction of Water Treatment Plant was ‘a work’ relating to construction for the government and, therefore, works contract. And in the matter of M/s. Spedra Engineering Corporation (supra), the Court has held that the M.P. Madhyastham Adhikaran Adhiniyam, 1983 was a special enactment providing for statutory arbitration arising out of disputes in respect of works contracts. The present is not a works contract as already held above and both the decisions are, therefore, not applicable to the dispute at hand. The present is not a works contract as already held above and both the decisions are, therefore, not applicable to the dispute at hand. Similarly considering the fact that the factual matrix pertains to non-extension of the additional period conceded and not being granted which led to the filing of the application under section 9, then we have no hesitation in holding that although the work pertains to construction of road Dewas Bypass Road starting from 159/4 of Bhopal–Ujjain Road (SH-18) and joining Km. 577/6 of Agra-Bombay Road (NH-3) intersecting NH-3 in Km. 567/8 and SH-18 in Km. 151/8 (total length of 19.8 kms.), yet the dispute pertains to the concession or concessional period given in terms of the concession right or concession area during the contract period. Hence we find that there is some substance put forth by the counsel for the appellants-petitioners. The petition needs to be allowed and it is hereby allowed. The impugned order dated 16.2.2015 passed by the 1st Additional District Judge, Dewas in Arbitration Case No.1/2015 is hereby set aside. The petitioner is granted liberty to move appropriate application under the provision of Arbitration and Conciliation Act, 1996 before the lower Court. With the aforesaid observations and directions, the appeal is allowed to the extent herein above indicated.