Solaris Chem Tech Industries Ltd v. Assistant Executive Engineer Karnataka Urban Water Supply and Drainage Board & Anr.

ORDER 1. Leave granted. 2. This appeal arises from a judgment dated 18 June 2018 of a Division Bench of the High Court of Karnataka at the Dharwad Bench. The Division Bench has dismissed a Writ Appeal and thereby affi rmed the correctness of an order dated 27 February 2018 of a Single Judge dismissing the writ petition fi led by the appellant. 3. The appellant set up a factory in 1975 for the manufacture of Caustic Soda at Village Binaga in North Kanara District, Mysore. On 5 July 1971, an agreement was entered into between the Government of Mysore and the appellant for the continuous supply of water at concessional rates for the operation of the factory. The agreement was valid for a period of 20 years from the commencement of production. On 3 April 1987, the State Government constituted the Karnataka Urban Water Supply and Drainage Board1 in accordance with the Karnataka Urban Water Supply and Drainage Board Act, 1973. The Board was supplying water to the app ellant for industrial use as well as for non-domestic use. 4. It appears that the original agreements were replaced by subsequent agreements dealing with the supply of water for industrial and non-domestic use. The last of the agreements, relevant to the present dispute, was entered into on 11 November 2011 for the supply of water to be charged for non- domestic use and industrial use respectively. These agreements were eff ective from 27 October 2011 until 26 October 2014. In terms of the agreements, the tariff for the supply of water for industrial use was fi xed at Rs 18.40 per kL and Rs 9.20 per kL for non-domestic use. Between 6 June 2014 and 16 September 2014, water bills were raised on the appellant based on the tariff fi xed in the agreements dated 11 November 2011. 5. On 18 July 2014, a demand notice was received by the appellant from the Assistant Executive Engineer by which new water rates were sought to be implemented and the appellant was called upon to pay the diff erential 1 “The Board”. SOLARIS CHEM TECH INDUSTRIES LTD v. ASSISTANT EXECUTIVE ENGINEER KARNATAKA URBAN WATER SUPPLY AND DRAINAGE BOARD amount with eff ect from 20 July 2011 till 30 June 2014. The relevant part of the communication is extracted below: “…the Board is supplying bulk water to your Industry & Quarters at Binaga, Karwar @ Rs.18.40/KL & Rs.9.20/KL respectively vide rate approved under ref (1). In the Government order under ref (2) the water rates are revised as under : Slabs Industrial Rates Non-domestic Rates 0-8 KL @ Rs.28.00/- KL @ Rs.14.00/KL 8-15 KL @ Rs.36.00/ KL @ Rs. 18.00/KL 15 - 25 KL @ Rs.44.00/ KL @ Rs.22.00/ KL Above 25 KL @ Rs.52.00/KL @ Rs.26.00/KL During the audit of this Sub-Division, the Board’s Resident Audit Offi cer have raised an audit para for non-revision of water rate & instructed to implement the new water rates & collect the diff erence amount from all the consumers from the date of G.O. Accordingly the 2Nos. diff erence bills for the period from 20-07-2011 to 30-06-2014 including arrears for your industrial & Non-domestic supply total amounting to Rs.8,22,62,337.00 are submitted for making payment.” 6. The appellant responded to the demand on 5 August 2014 and expressed readiness to enter into negotiations with the Karnat aka Urban Water Supply and Drainage Board. On 22 September 2014, another notice was issued stating that the Board operates on a no-profi t-no-loss basis, and is liable to pay dues to HESCOM2. The notice stated that the Board’s failure to pay HESCOM its dues would impact upon electricity and water supply. Citing losses caused to the Board, and the audit offi cers’ objections against the non-revision of water bills under government orders, the notice requested payment of arrears, in accordance with the revised rates. 7. On 15 October 2014, the appellant requested the respondent to withdraw the notice demanding arrears. In a Writ Petition under Article 226 of the Constitution of India before the High Court, the appellant challenged the notices dated 18 July 2014 and 22 September 2014. 2 Hubli Electricity Supply Company Limited. 467 8. The appellant argued that i) the impugned notices were contrary to clause 4 of the agreements between the parties; ii) the 20 July 2011 Notifi cation, being prior in time to the agreements, was inapplicable and could not be relied on in order to enhance the water tariff ; and iii ) the enhancement of charges was against the principles of natural justice since the respondent had acted suo motu, without hearing the appellant. 9. The Writ Petition was dismissed by the Single Judge primarily on the ground that Clause 11 of the agreements stipulated that any di spute that would arise between the parties would be resolved fi rstly by mutual discussion and on a failure of the process, by referring the matter to the Chief Engineer, the second respondent, whose decision would be fi nal and binding. The Single Judge also observed that in terms of clause 4 of the agreements, the Board was entitled to increase the rates. However, in view of the dispute resolution mechanism provided in Clause 11, the Single Judge declined to entertain the petition and relegated the petitioner to the contractual remedy in terms of the agreement. 10. The Division Bench, in a Writ Appeal, has confi rmed the judgment of the Single Judge. The Division Bench adverted to the language of Clause 11 of the agreement (“all disputes and diff erences that may ari se”) and rejected the appellant’s argument that the “demand” made by way of the impugned notices was beyond the purview of “disputes” under Clause 11. Hence, the Division Bench held that the dispute arising out of the impugned notices was covered by the scope of the agreement, and no interference under Article 226 of the Constitution of India was warranted. 11. Following the issuance of notice in these proceedings under Article 136 of the Constitution, the respondent has entered appearance and has fi led a counter affi davit. 12. We have heard Mr Dalip Kumar Malhotra, counsel appearing on behalf of the appellant, and Ms Amrita Sharma, counsel appearing on behalf of the respondents. 13. The appellant argues that the Division Bench has misconstrued the issue while declining to interfere. It is argued that the principal ground of challenge is the Board’s non-compliance with the statutory procedure under the Karnataka Urban Water Supply and Sewerage Boards Act in issuing the SOLARIS CHEM TECH INDUSTRIES LTD v. ASSISTANT EXECUTIVE ENGINEER KARNATAKA URBAN WATER SUPPLY AND DRAINAGE BOARD impugned notices. According to the appellant, the High Court ought to have dealt with the Board’s authority to i) increase the tariff s over and above the agreed rates, ii) do so on the basis of a Government Notifi cation that pre- dated the agreement, iii) act in violation of the agreements and the statute which is the source of its power. It has been submitted that the dispute was in rem and not in personam and that the jurisdiction of the High Court was validly invoked. It has been argued that by relegating the parties to Clause 11 of the agreements, the Court erroneously refused interference. 14. The issue that arises for our consideration is whether the Hig h Court was justifi ed in dismissing the Writ Petition and the Writ Appeal on the strength of Clause 11 of the agreements between the parties. We must examine whether there was a valid arbitration agreement between the parties, justifying the referral to the Chief Engineer under Clause 11. 15. While dismissing the Writ Petition, the Single Judge of the High Court relied on Clause 11 of the agreements. Clause 11 reads as follows: “CLAUSE:11 SETTLEMENT OF DISPUTES 11.1 All disputes or diff erences that may arise between the parties hereto pertaining to the meaning of any provision or in connection with the agreement shall be resolved by mutual discussions. 11.2 In case the mutual discussions falls then all such disputes which have arisen between the Board and the consumer hereto pertaining to the meaning of my provisions in the agreement, shall be resolved by referring the matter in writing to the Chief Engineer (North), K.U.W.S. & D Board, Dharwad, whose decision will be fi nal and binding on the consumer and the Board.” 16. Clause 11 is titled, “Settlement of Disputes”. Clause 11.1 stipulates that all disputes or diff erences that may arise between the parties pertaining to the meaning of any provision in the agreement or in connection with it, would be resolved by mutual discussion. However, if mutual discussi ons fail, Clause 11.2 postulates that all such disputes which have arisen between the Board and the consumer pertaining to the meaning of the provisions of the agreements would be resolved by referring the matter to the Chi ef Engineer whose decision would be fi nal and binding. 469 17. Bearing in mind the provisions of the Arbitration and Conciliation Act 19963, we are of the view that Clause 11 does not constitute an arbitration agreement. The expression “arbitration agreement” is defi ned by Section 2(b) to mean an agreement referred to in Section 7. Section 7 is extracted below: “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 in respect of a defi ned legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbit ration 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 including communication through electronic means which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which t he 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 i s in writing and the reference is such as to make that arbitration clause part of the contract.” 18. Sub-section (1) of Section 7 indicates that an arbitration agreement is an agreement by parties to submit to arbitration “all or certain disputes which have arisen or which may arise between them in respect of a defi ned legal relationship, whether contractual or not”. It is well set tled that in determining whether there is an arbitration agreement, the terms of the contract between the parties must be read as a whole. The 1996 Act does 3 “The 1996 Act”/ “The Act” SOLARIS CHEM TECH INDUSTRIES LTD v. ASSISTANT EXECUTIVE ENGINEER KARNATAKA URBAN WATER SUPPLY AND DRAINAGE BOARD not prescribe a certain form of an arbitration agreem ent. The use or the absence of the word ‘arbitration’ is not conclusive and the intention of the parties to resolve the disputes through arbitra tion should be clear from the terms of the clause. In Jagdish Chander vs Ramesh Chander, the Court summarised the relevant factors for deter mining whether an agreement is an arbitration agreement within the mea ning of S. 7 of the 1996 Act. The Court held 4: “(ii) Even if the words “arbitration” and “Arbitral Tribunal (or arbitrator)” are not used with reference to the pro cess of settlement or with reference to the private tribunal which has to adjudicate upon the disputes, in a clause relating to settleme nt of disputes, it does not detract from the clause being an arbitrati on agreement if it has the attributes or elements of an arbitration agreement. They are: (a) The agreement should be in writing. (b) Th e parties 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 impartia l manner, giving due opportunity to the parties to pu t 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.” (emphasis added). 19. The following conditions must be satisfi ed by a valid arbitration agreement: (i) The agreement must be in writing, as stipulated by sub-section (3) of Section 7; (ii) Parties should have agreed to refer any disput es, present or future, between them to an arbitral tribunal; (iii) The arbitral tribunal should be empowered to adjudicate upon the disputes in an impartial manner giving due oppo rtunity to the parties; and 4 (2007) 5 SCC 719, 724. 471 (iv) The parties should have agreed that the decision of the tribunal would be binding between them. 20. In the present case, Clause 11.2 of the agreeme nt does not constitute the Chief Engineer as an arbitral tribun al. A similar clause was considered by this Court in Jaipur Jila Dugdh Utpadak Sahkari Sangh Limited vs Ajay Sales and Suppliers .5 A distributorship agreement between the parties contained an arbitratio n clause in clause 13, stipulating that all disputes arising out of or in any way touching or concerning the agreement, whatsoever shall be re ferred to the sole Arbitrator, the Chairman, Jaipur Zila Dugdh Utpadak Sahkari Sangh Ltd. and his decision shall be fi nal and binding upon the parties. Accordingly, the respondent in the case approached the Chairman and while the dispute was pending before the Chairman, the respondent mad e an application for appointment of an arbitrator and an arbitrator c ame to be appointed by the High Court. Aggrieved by this, the appellant moved this Court. Section 12(5) of the Arbitration Act, which was int roduced in the year 2015 by way of an amendment indicates that notwithstand ing any prior agreement to the contrary, certain persons whose relatio nships with the parties fall under the Seventh Schedule of the Act, are ineligible to be appointed as an arbitrator. The issue was whether t his disqualifi cation applied to arbitration agreements executed prior to the amendment which came into eff ect on 23 October 2015. Dismissing the appeal, the Court answered the question in the affi rmative. Reiterating the observations in Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation Limited6, the Court held that the object and purpose of Secti on 12(5) of the Act is to ensure the “neutrality of arbitrators”. The n on-obstante clause makes the application of this provision to pre-amen dment agreements abundantly clear. 21. The Court noted that the eff ect of Section 12(5 ) of the Act is that the party cannot insist on the appointment of an arbitrator in terms of such an agreement. Reading Section 12(5) with th e Seventh Schedule of the Act, it was held that the Chairman in that c ase, was disqualifi ed 5 2021 SCC OnLine SC 730, para 10. 6 (2017) 4 SCC 665. SOLARIS CHEM TECH INDUSTRIES LTD v. ASSISTANT EXECUTIVE ENGINEER KARNATAKA URBAN WATER SUPPLY AND DRAINAGE BOARD and that the High Court was justifi ed in appointing an arbitrator other than the Chairman. “Disqualifi cation/ineligible under Sub-section (5) of Section 12 read with Seventh Schedule to the Act is to be read as a whole and considering the object and purpose for which Su b-section (5) of Section 12 read with Seventh Schedule to the Act came to be inserted. Sub-section (5) of Section 12 read with Seventh Schedule has been inserted bearing in mind the ‘imp artiality and independence’ of the arbitrators. It has been inser ted with the purpose of ‘neutrality of arbitrators’. Independence and impartiality of the arbitrators are the hallmarks of any arbitration proceedings as observed in the case of Voestalpine Schienen (Supra ). Rule against bias is one of the fundamental principles of natura l justice which apply to all judicial proceedings and quasi-judicia l proceedings and it is for this reason that despite the contractual ly agreed upon, the persons mentioned in Sub-section (5) of Section 12 read with Seventh Schedule to the Act would render himself in eligible to conduct the arbitration.” 7 22 . In the present case, the agreements do not pos tulate that the Chief Engineer would adjudicate upon the disputes betwe en the parties nor is there any provision to the eff ect that the C hief Engineer would resolve the dispute after letting in evidence or al lowing the parties an opportunity of presenting their respective cases be fore them. The forum comprising the Chief Engineer lacks the trappings of a n arbitral forum. More importantly, the Chief Engineer is an employee of the Board. In view of the decision in Jaipur Jila Dugdh Utpadak Sahkari Sangh Limited (supra), which has been upheld in Ellora Pa per Mills Ltd. v. State of M.P, 8 arbitration proceedings must account for the rule agains t bias and due process. Clause (1) of the Seventh Sch edule of the Act disqualifi es an employee of one of the parties from being appointed as an arbitrator. This prohibition applies notwithstand ing an agreement to the contrary. Read conjointly with the requirements of a valid arbitration 7 2021 SCC OnLine SC 730, para 17. 8 (2022) 3 SCC 1. 473 agreement stipulated in Jagdish Chander (supra), Section 12 (5) of the Act and the Seventh Schedule would indicate that su ch a person cannot be considered fi t to resolve the dispute between the parties independently and without bias. 23. Though the Single Judge was of the view that Cl ause 4 of the agreement empowered the Board to revise its rates, n onetheless, without dealing with the power and the manner of its exerci se any further, the High Court relegated the appellant to the remedy un der Clause 11 before the Chief Engineer. 24. Once we have come to the conclusion that the pr ovisions of Clause 11 do not constitute an arbitration agreemen t, the corollary is that the High Court ought not to have relegated the parties to the Chief Engineer on the strength of Clause 11. It would hav e been appropriate if the High Court had fi nally determined the challenge addressed by the appellant in the writ proceedings under Article 226 of the Constitution. Though the Single Judge has adverted to Clause 4, e vidently there is no fi nal determination in that regard. 25. The judgment of the Division Bench has exclusiv ely relied on the provisions of Clause 11 while coming to the conclusion that the dispute between the parties fell within the amb it of the clause. The fundamental aspect of the matter, however, is that the provision for settlement of disputes which is contained in Clause 11 does not constitute the Chief Engineer as an arbitral tribunal since he cannot be regarded as an impartial offi cer nor do the provisions of Clause 11 incorporate the trappings of an arbitral tribunal. 26. For the above reasons, we allow the appeal and set aside both, the judgment of the Single Judge dated 27 February 2018 and the judgment of the Division Bench dated 18 June 2018. The Writ Petition, being Writ Petition No 111298/2014 (GM-RES), shall s tand restored to the fi le of the Single Judge of the High Court of Karnataka at Dharwad Bench for decision afresh. 27. We clarify that we have not expressed any view on the merits of the case which is sought to be set up by the appell ant in the Writ Petition or on the defence which has been urged on behalf of the respondents. SOLARIS CHEM TECH INDUSTRIES LTD v. ASSISTANT EXECUTIVE ENGINEER KARNATAKA URBAN WATER SUPPLY AND DRAINAGE BOARD 28. The Court has been apprised of the fact that in the meantime, the appellant, which has been taken over by the Adi tya Birla Group, has continued to pay the revised water rates and has cleared the arrears while reserving its rights to avail of the remedies. The appellant shall continue to pay the rates as fi xed by the Board from time to time subject to such fi nal orders as may be passed by the High Court in the Writ Petition which is restored to the fi le of the High Court. 29. The Appeal is accordingly disposed of. 30. Pending applications, if any, stand disposed of .