# Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd v. M.P. Road Development Corporation and Another

- **Citation:** 2025 INSC 907
- **Court:** Supreme Court of India
- **Decided:** 2025-07-30
- **Case number:** Civil Appeal No. 9920 of 2025
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/umri-pooph-pratappur-upp-tollways-pvt-ltd-v-m-p-road-development-corporation-38455
- **Pages:** 40

## Headnote

The core issue in the present matter revolves around determining
the appropriate forum for the adjudication of disputes arising out of
the Concession Agreement dated 05.01.2012 entered into between
the appellant and respondent no.1.
Headnotes†
Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 -
s.7 - Arbitration and Conciliation Act, 1996 - The appellant
and respondent no.1-Madhya Pradesh Road Development
Corporation entered into a Concession Agreement for the
augmentation of the road - Disputes arose between the
parties - The appellant raised claims before the Independent
Engineer for amicable resolution and compensation, which
were mostly rejected - With no resolution forthcoming,
appellant initiated proceedings before the Madhya Pradesh
Arbitration Tribunal - Thereafter, the appellant invoked
Cl.44.3.1 of the Concession Agreement and approached
the International Centre for Alternative Dispute Resolutionrespondent no.2 - Respondent no. 1 raised objections - ICADR
by order dated 02.06.2022 appointed arbitrators - On the other
side, the Arbitral Tribunal issued notice for preliminary hearing,
by order dated 07.06.2022 - Subsequently, the appellant filed
an application before Madhya Pradesh Arbitration Tribunal
for seeking withdrawal, which was allowed - Aggrieved by
the orders dated 02.06.2022 and 07.06.2022 of the ICADR and
the Arbitral Tribunal, respondent no.1 filed writ petition which
was allowed and orders dated 02.06.2022 and 07.06.2022 were
quashed:
* Author
[2025] 7 S.C.R.
1769
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. and Anr. v.
M.P. Road Development Corporation and Another
Held: The present Concession Agreement pertains to the
construction of a State Highway situated entirely within the State
and was awarded by respondent no.1, a State-controlled entity,
the agreement clearly qualifies as a "works contract" u/s.2(1)(i)
of the 1983 Act - Consequently, the dispute arising therefrom
falls within the exclusive jurisdiction of the Madhya Pradesh
Arbitration Tribunal - The Arbitration and Conciliation Act, 1996
stands excluded by operation of law in such matters - The private
arbitration proceedings initiated by the appellant are therefore, non
est in law, and the proper forum for adjudication is the Madhya
Pradesh Arbitration Tribunal established under the 1983 Act - It
is not in dispute that the appellant had initiated Reference Case
before the Madhya Pradesh Arbitration Tribunal and had obtained
issuance of notice - While the said reference was pending, the
appellant simultaneously invoked arbitration under Clause 44.3.1
of the Concession Agreement and initiated private arbitration
proceedings before the ICADR (Respondent No. 2) under the 1996
Act - This parallel invocation of remedies is impermissible in law
and squarely hit by the doctrine of election and estoppel - A party
cannot pursue two mutually inconsistent remedies under different
legal regimes arising from the same cause of action - Clause
44.3.1 of the Concession Agreement to the extent it purports to
permit private arbitration, cannot override the statutory mandate of
the 1983 Act - Accordingly, the attempt of the appellant to invoke
Clause 44.3.1 of the Concession Agreement and re-agitate the
issue of private arbitration-already settled in Viva Highways and
affirmed by this Court-is barred by the doctrine of constructive
res judicata and amounts to an abuse of the process of law -
Additionally, the appellant's conduct in withdrawing the reference
petition before the Madhya Pradesh Arbitration Tribunal, without
seeking liberty to re-agitate the claims, and simultaneously
initiating proceedings under the 1996 Act, constitutes forum
shopping - This conduct, aimed at circumventing the statutory
mechanism and reviving abandoned claims, is tainted with mala
fides - In terms of the statutory mandate under Rule 53(3)(b) of
1985 Regulations, once a reference is withdrawn without obtaining
liberty to re-agitate the same, the appellant stands precluded
from i

## Text

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[2025] 7 S.C.R. 1768 : 2025 INSC 907
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd.
v.
M.P. Road Development Corporation and Another
(Civil Appeal No. 9920 of 2025)
30 July 2025
[J.B. Pardiwala and R. Mahadevan,* JJ.]
Issue for Consideration
The core issue in the present matter revolves around determining
the appropriate forum for the adjudication of disputes arising out of
the Concession Agreement dated 05.01.2012 entered into between
the appellant and respondent no.1.
Headnotes†
Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 -
s.7 - Arbitration and Conciliation Act, 1996 - The appellant
and respondent no.1-Madhya Pradesh Road Development
Corporation entered into a Concession Agreement for the
augmentation of the road - Disputes arose between the
parties - The appellant raised claims before the Independent
Engineer for amicable resolution and compensation, which
were mostly rejected - With no resolution forthcoming,
appellant initiated proceedings before the Madhya Pradesh
Arbitration Tribunal - Thereafter, the appellant invoked
Cl.44.3.1 of the Concession Agreement and approached
the International Centre for Alternative Dispute Resolutionrespondent no.2 - Respondent no. 1 raised objections - ICADR
by order dated 02.06.2022 appointed arbitrators - On the other
side, the Arbitral Tribunal issued notice for preliminary hearing,
by order dated 07.06.2022 - Subsequently, the appellant filed
an application before Madhya Pradesh Arbitration Tribunal
for seeking withdrawal, which was allowed - Aggrieved by
the orders dated 02.06.2022 and 07.06.2022 of the ICADR and
the Arbitral Tribunal, respondent no.1 filed writ petition which
was allowed and orders dated 02.06.2022 and 07.06.2022 were
quashed:
* Author
[2025] 7 S.C.R.
1769
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. and Anr. v.
M.P. Road Development Corporation and Another
Held: The present Concession Agreement pertains to the
construction of a State Highway situated entirely within the State
and was awarded by respondent no.1, a State-controlled entity,
the agreement clearly qualifies as a "works contract" u/s.2(1)(i)
of the 1983 Act - Consequently, the dispute arising therefrom
falls within the exclusive jurisdiction of the Madhya Pradesh
Arbitration Tribunal - The Arbitration and Conciliation Act, 1996
stands excluded by operation of law in such matters - The private
arbitration proceedings initiated by the appellant are therefore, non
est in law, and the proper forum for adjudication is the Madhya
Pradesh Arbitration Tribunal established under the 1983 Act - It
is not in dispute that the appellant had initiated Reference Case
before the Madhya Pradesh Arbitration Tribunal and had obtained
issuance of notice - While the said reference was pending, the
appellant simultaneously invoked arbitration under Clause 44.3.1
of the Concession Agreement and initiated private arbitration
proceedings before the ICADR (Respondent No. 2) under the 1996
Act - This parallel invocation of remedies is impermissible in law
and squarely hit by the doctrine of election and estoppel - A party
cannot pursue two mutually inconsistent remedies under different
legal regimes arising from the same cause of action - Clause
44.3.1 of the Concession Agreement to the extent it purports to
permit private arbitration, cannot override the statutory mandate of
the 1983 Act - Accordingly, the attempt of the appellant to invoke
Clause 44.3.1 of the Concession Agreement and re-agitate the
issue of private arbitration-already settled in Viva Highways and
affirmed by this Court-is barred by the doctrine of constructive
res judicata and amounts to an abuse of the process of law -
Additionally, the appellant's conduct in withdrawing the reference
petition before the Madhya Pradesh Arbitration Tribunal, without
seeking liberty to re-agitate the claims, and simultaneously
initiating proceedings under the 1996 Act, constitutes forum
shopping - This conduct, aimed at circumventing the statutory
mechanism and reviving abandoned claims, is tainted with mala
fides - In terms of the statutory mandate under Rule 53(3)(b) of
1985 Regulations, once a reference is withdrawn without obtaining
liberty to re-agitate the same, the appellant stands precluded
from initiating a fresh reference on the same subject matter -
This substantive bar also applies to any attempt to pursue the
same claims before alternative fora - Nonetheless, considering
1770
[2025] 7 S.C.R.
Supreme Court Reports
the nature of the dispute and in the interests of justice, appellant
directed to seek revival of Reference Petition before the Madhya
Pradesh Arbitration Tribunal. [Paras 11.9, 11.10, 12, 12.1, 13.1,
14, 16, 17, 17.1]
Case Law Cited
Federal Bank Ltd. v. Sagar Thomas [2003] Supp. 4 SCR 121 :
(2003) 10 SCC 733; Binny Ltd v. Sadasivan [2005] Supp. 2 SCR
421 : (2005) 6 SCC 657; Gangotri Enterprises Ltd v. Madhya
Pradesh Road Development Corporation [2018] 4 SCR 260 :
(2018) 16 SCC 296; Madhya Pradesh Rural Road Development
Corporation Ltd v. L.G. Chaudhary Engineers and Contracts
[2012] 2 SCR 162 : (2018) 10 SCC 826; Gayathri Project Ltd v.
M.P. Road Development Corporation Ltd. [2018] 4 SCR 260 :
2025 SCC OnLine SC 1136; Booz Allen and Hamilton Inc v.
SBI Home Finance Ltd. [2011] 7 SCR 310 : (2011) 5 SCC
532 - relied on.
S.Shobha v. Muthoot Finance Ltd. [2025] 1 SCR 1147 : SLP(C)
Nos. 2625-2627 of 2025; Jagmittar Sain Bhagat v. Director,
Health Services, Haryana and Others [2013] 8 SCR 77 : (2013)
10 SCC 136; Kanwar Singh Saini v. High Court of Delhi [2011]
15 SCR 972 : (2012) 4 SCC 307; State of Chhattisgarh v. M/s.
KMC Construction [2018] 4 SCR 270 : (2018) 10 SCC 839;
ARSS Damoh - Hirapur Tolls (P) Ltd. v. M.P. Road Development
Corporation, 2018 SCC OnLine SC 3899; Madhya Pradesh Rural
Road Development Authority v. Backbone Enterprises Limited
[2018] 4 SCR 255 : (2018) 15 SCC 660; Deep Industries Ltd v.
Oil and Natural Gas Corporation Ltd. [2019] 17 SCR 995 : (2020)
15 SCC 706 - referred to.
Viva Highways Ltd v. Madhya Pradesh Road Development
Corporation Ltd., 2017 SCC OnLine MP 1448 - referred to.
List of Acts
Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983;
Constitution of India; Arbitration and Conciliation Act, 1996; Civil
Procedure Code, 1908; Madhya Pradesh Highways Act, 2004;
Arbitration Act, 1940; Limitation Act, 1963; Madhya Pradesh
Madhyastham Adhikaran Regulations, 1985.
[2025] 7 S.C.R.
1771
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. and Anr. v.
M.P. Road Development Corporation and Another
List of Keywords
Concession Agreement; Determining the appropriate forum for the
adjudication of disputes; Independent Engineer; Amicable resolution
and compensation; Withdrawal; State-controlled entity; Works
contract; Exclusive jurisdiction; Private arbitration proceedings;
Doctrine of election and estoppels; Mutually inconsistent remedies;
Same cause of action; Private arbitration; Doctrine of constructive
res judicata; Abuse of the process of law; Forum shopping; Liberty
to re-agitate; Fresh reference on the same subject matter; Proper
forum for adjudication.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9920 of 2025
From the Judgment and Order dated 09.09.2024 of the High Court
of Madhya Pradesh Principal Seat at Jabalpur in WP No. 14569
of 2022
Appearances for Parties
Advs. for the Appellant:
Siddharth Dave, Sr. Adv., Ms. Sadapurna Mukherjee, Saurabh
Kumar, Manvi Sharma, Rajat Mittal.
Advs. for the Respondents:
Tushar Mehta, Solicitor General, Siddharth Sharma, Bhuvan
Kapoor, Ms. Rajeshwari Shankar, Ms. Ishika Chauhan.
Judgment / Order of the Supreme Court
Judgment
R. Mahadevan, J.
Leave granted.
2.
This appeal has been preferred against the final judgment and
order dated 09.09.2024 passed by the High Court of Madhya
Pradesh at Jabalpur1 in Writ Petition (Civil) No. 14569 of 2022
1
Hereinafter referred to as "the High Court"
1772
[2025] 7 S.C.R.
Supreme Court Reports
filed by Respondent No. 1 - Madhya Pradesh Road Development
Corporation. By the impugned judgment, the High Court allowed
the writ petition and quashed the orders dated 02.06.2022 and
07.06.2022 passed by the International Centre for Alternative
Dispute Resolution2 - Respondent No.2 and the Arbitral Tribunal,
respectively. For ease of reference, the orders impugned in the writ
petition, are extracted below:
Order dated 02.06.2022 passed by the ICADR
"...
The ICADR has made thorough examination of all the
points of the Claimant and Respondent including the
aforesaid nine attachments with email dated 24.05.2022
and due deliberation and consideration of all the points
raised by both the Claimant and Respondent particularly
Arbitration Agreement, the judgement in Writ Petition
no. 11783/2021 dt.03.09.2021 and Orders sheets of
Madhyastham Adhikaran at Bhopal and it has come to
the following conclusions:
1. ICADR is the proper forum for the arbitration of disputes
arising out of execution of Concession Agreement dated
05.01.2012 between M/s. Umri Pooph Pratappur Tollway
Private Limited and Madhya Pradesh Road Development
Corporation Ltd. and the same can be ascertained from
Arbitration Agreement incorporated in Article 44.3.1 and
44.3.2.
2. The Judgement in Writ Petition nо. 11783/2021
dt.03.09.2021 gives clear finding that ICADR is the proper
forum for Arbitration of dispute arising from the Concession
agreement dated 05.01.2012.
3. In view of and from the orders sheets of Madhyastham
Adhikaran at Bhopal, it is ascertained that the Madhyastham
Adhikaran at Bhopal has not entered upon reference of the
2
For short, "ICADR"
[2025] 7 S.C.R.
1773
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. and Anr. v.
M.P. Road Development Corporation and Another
arbitration and therefore not in seisin of the aforementioned
arbitrable disputes.
Therefore, in view of Rule 5(2) of the ICADR Arbitration
Rules, 1996, inter alia, provides that where a party
fails to appoint an arbitrator within 30 days from the
receipt of a request to do so from the other party, the
appointment shall be made upon request of the party,
by ICADR. However, in view of Reply of MPRDCL
vide letter No. 2941/83/BOT/MPRDC Bhopal dated
13.05.2022 to Arbitration Notice dated 06.05.2022 of
the Claimant whereby the Respondent has declined to
nominate their Arbitrator, hence, ICADR need not wait
for expiry of 30 days.
Since the Respondent has failed to appoint their
arbitrator in terms of clause 44.3.1 of the Agreement,
now, therefore, I, R.K. Rathore, Secretary General of the
International Centre for Alternative Dispute Resolution
(ICADR), in exercise of the powers vested in me under
Rule 5(2) read with Rule 35(3) of ICADR Arbitration Rules,
1996, do hereby appoint the following arbitrator on the
behalf of Respondent:
Shri Jagdish Prasad Shukla, IRSE (Retd.)
Former Principal Engineer/Northern Railway Chief
Managing Director/
Rail Vikas Nigam Ltd. &
Member Administration/Central Administrative Tribunal
Add: 501, Ridgewood, Omaxe Forest Sector-92,
Noida.
Cell No. 9958998686
E-mail: jpshukla46@gmail.com
The two appointed arbitrators will select the third Arbitrator,
i.e. Presiding Arbitrator, as provided in clause 44.3.2 of
the above mentioned Agreement."
1774
[2025] 7 S.C.R.
Supreme Court Reports
Order dated 07.06.2022 passed by the Arbitral Tribunal
"...
Notice for preliminary hearing
1) The Concessionaire/ Claimant has appointed Shri
Kamlesh Kumar as Arbitrator on their behalf. The ICADR on
behalf of Madhya Pradesh Road Development Corporation
Limited has nominated Shri J. P. Shukla as Arbitrator for
MPRDC Ltd.
2) The above said nominee Arbitrators of the parties by
mutual consent have appointed me the Presiding Arbitrator
to adjudicate the matter in dispute relating to the abovementioned subject vide email date 05.06.2022. I have
accepted to act as Presiding Arbitrator in the above referred
dispute on 05.06.2022 and the same was communicated
to all concerned by email.
3) In pursuance there off, the parties to the dispute are
hereby notified that Preliminary hearing of the Arbitral
Tribunal will be held on 18.06.2022 (11.00 AM) through
video conferencing Wherein timeline for submission of the
Statement of Claims (SOC) and Statement of Defense
(SOD) and the procedure for conducting the Arbitration
will be discussed and decided. The claimant shall arrange
to send meeting link to all concerned for the video
conferencing well in advance.
4) The Parties to dispute may kindly note that I have received
the proposal of my appointment as Presiding Arbitrator on
05.06.2022 and on same day i.e., on 05.06.2022 accepted
to act as Presiding Arbitrator. Therefore, the period of
6 months for filing the statement of claims (SOC) and
statement of defense (SOD) as specified in Sub Section
4 of Section 23 of Arbitration and Conciliation Act, 1996
(Amendment 2019) shall be reckoned from 05.06.2022
and such period end on 04.12.2022.
5) In the meantime, the Respondent is directed to file
a certified copy of Agreement between the Respondent
[2025] 7 S.C.R.
1775
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. and Anr. v.
M.P. Road Development Corporation and Another
and Claimant to all the Tribunal Members with a copy to
the Claimant.
6) My Disclosure under section 12(1 b) as schedule VI
of the Arbitration and Conciliation Act 1996 (Amendment
2019) is enclosed for reference of parties to the dispute.
...."
3.
The brief facts necessary for adjudication of the present appeal are
as follows:
3.1. The appellant and Respondent No.1 entered into a Concession
Agreement dated 05.01.2012 for the development of the Umari -
Pooph - Pratappur Road on a Build, Operate and Transfer
(BOT - Toll + Annuity) basis. The total cost of the project was
Rs. 73.68 crores for the augmentation of the existing road
from T-Junction of SH-45 at Umari Village to 43.775 km on the
Umri - Pooph - Pratappur section of Major District Road (MDR)
in the State of Madhya Pradesh, as stipulated in Clause 48.1
of the Concession Agreement. The implementation period was
fixed at 24 months from the appointed date.
3.2. In accordance with Article 9.1.1 and Schedule F of the
Concession Agreement, the appellant furnished a performance
security of Rs. 3.68 crores in the form of an irrevocable and
unconditional bank guarantee, vide Bank Guarantee No.
00494121PG000028 dated 03.07.2012 issued by Allahabad
Bank. An Escrow Agreement was also executed on 20.06.2012
among the appellant, Respondent No.1 and Allahabad
Bank.
3.3. M/s. S&P Infrastructure Developers Private Limited and M/s.
BLA Infrastructure Private Limited, by Deeds of Guarantee
dated 20.06.2012 and 15.05.2012 respectively, guaranteed
the performance of the appellant under the Common Loan
Agreement. The appellant alleged that Respondent No.1
arbitrarily fixed the appointed date as 20.06.2012. Thereafter,
the appellant submitted the project completion schedule, work
programme, and designs and drawings for review by the
Divisional Manager, who had been temporarily appointed as
the Independent Engineer. Upon acceptance, the appellant
1776
[2025] 7 S.C.R.
Supreme Court Reports
mobilized men, materials, and machinery at the site and
commenced work.
3.4. Vide Letter No. VO/TL/2012/Gen/02 dated 27.06.2012, the
appellant was informed that M/s. Vaidya Organisation had
been appointed as the Independent Engineer with effect
from 01.06.2012. The Independent Engineer did not approve
the designs and drawings earlier submitted and directed the
appellant not to proceed with construction until the already
executed work was reviewed and approved. The appellant was
further directed to submit revised designs and drawings. Despite
objections, revised submissions were made by the appellant
on 11.07.2012, which were eventually approved. Consequently,
the appellant was compelled to dismantle and re-execute
substantial portions of the work, resulting in an escalation of
the total project cost to Rs. 99.80 crores.
3.5. Subsequent delays and disruptions allegedly occurred due
to breaches of contractual obligations by Respondent No.
1. Consequently, the appellant raised 19 claims before the
Independent Engineer invoking Article 44.2 of the Concession
Agreement for amicable resolution and compensation. These
claims were also submitted to the Secretary, PWD. While some
claims were accepted during conciliation proceedings, most
were rejected, and no payments were released to the appellant.
3.6.
With no resolution forthcoming, the appellant initiated
proceedings before the Madhya Pradesh Arbitration Tribunal
by filing Reference Case No. 61 of 2018. Notice in the said
reference was issued on 13.08.2018.
3.7.
Thereafter, the appellant invoked Clause 44.3.1 of the
Concession Agreement and approached the ICADR.
Respondent No. 1 raised objections under Section 7 of
the Madhya Pradesh Madhyastham Adhikaran Adhiniyam,
19833. Nevertheless, the ICADR, by order dated 02.06.2022,
proceeded to appoint arbitrators to adjudicate the disputes.
The Arbitral Tribunal issued a notice for preliminary hearing,
by order dated 07.06.2022.
3
For short, "the 1983 Act"
[2025] 7 S.C.R.
1777
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. and Anr. v.
M.P. Road Development Corporation and Another
3.8.
Subsequently, on 24.06.2022, the appellant filed an application
before the Madhya Pradesh Arbitration Tribunal, seeking
withdrawal of Reference Case No.61 of 2018.
3.9.
Aggrieved by the orders dated 02.06.2022 and 07.06.2022
passed by the ICADR and the Arbitral Tribunal, respectively,
Respondent No.1 filed Writ Petition No.14569 of 2022 before
the High Court. During the pendency of the writ petition, the
Madhya Pradesh Arbitration Tribunal allowed the appellant's
withdrawal application by order dated 08.02.2023.
3.10. Ultimately, by judgment dated 09.09.2024, the High Court
allowed the writ petition and quashed the orders dated
02.06.2022 and 07.06.2022. Aggrieved thereby, the appellant
has preferred the present appeal before this Court.
4.
The learned Senior Counsel for the appellant submitted that the
writ petition filed by Respondent No. 1 before the High Court was
not maintainable as the appellant is a private company and does
not function as an instrumentality of the State. Reliance was placed
on the judgment of this Court in S.Shobha v. Muthoot Finance Ltd4,
wherein it was held that a writ petition is maintainable only against
a body that qualifies as 'State' under Article 12 of the Constitution.
Therefore, the High Court erred in entertaining the writ petition and
passing the impugned order against the appellant.
4.1. Reference was also made to the decisions of this Court in
Jagmittar Sain Bhagat v. Director, Health Services, Haryana
and others5 and Kanwar Singh Saini v. High Court of Delhi6, to
submit that the issue of maintainability of a writ petition can be
raised at any stage of the proceedings, and must be determined
at the threshold.
4.2. The learned Senior Counsel submitted that the arbitration
proceedings were initiated by the appellant under the Arbitration
and Conciliation Act, 19967, strictly in accordance with
4
SPL(C) Nos. 2625-2627 of 2025
5
(2013) 10 SCC 136
6
(2012) 4 SCC 307
7
For short, "the 1996 Act"
1778
[2025] 7 S.C.R.
Supreme Court Reports
Clause 44.3.1 of the Concession Agreement dated 05.01.2012,
and not as an alternative or secondary remedy. Both parties,
being fully aware of the existence of the Madhya Pradesh
Arbitration Tribunal constituted under the 1983 Act, had mutually
agreed to resolve disputes through arbitration governed by the
1996 Act and the ICADR Rules. Accordingly, the invocation of
the 1996 Act was not barred by the 1983 Act.
4.3. It was further emphasized that if the parties had intended to refer
disputes to the Tribunal under the 1983 Act, the agreement would
have specifically provided for such reference. Whereas, Clause
44.3.1 of the Concession Agreement mandates arbitration under
the aegis of ICADR, New Delhi. Therefore, the jurisdiction of
the Madhya Pradesh Arbitration Tribunal cannot override this
binding contractual mechanism.
4.4. The learned Senior Counsel placed reliance on paragraph 79 of
the decision of the Madhya Pradesh High Court in Viva Highways
Ltd v. Madhya Pradesh Road Development Corporation Ltd8,
which held that the Madhya Pradesh Arbitration Tribunal under
the 1983 Act has jurisdiction only over "ascertained" claims. It
also acknowledged that "ascertained" claims have a specific
connotation. In the present case, the appellant's claims are, at
best, "ascertainable", and therefore, outside the jurisdiction of
the Tribunal. Even assuming, without conceding, that the claims
could be considered "ascertained", it was incumbent upon the
High Court or Tribunal to undertake an inquiry to classify the
nature of the claims. However, no such determination was
carried out in the present case.
4.5. It was contended that the Doctrine of Election has no application
to the present case. Firstly, the appellant invoked arbitration
proceedings under the Concession Agreement and did not
approach the Madhya Pradesh Arbitration Tribunal under the
1983 Act on its own volition. Secondly, arbitration was not
resorted to as an alternative, but as a binding and mutually
agreed remedy under the contract.
8
2017 SCC OnLine MP 1448
[2025] 7 S.C.R.
1779
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. and Anr. v.
M.P. Road Development Corporation and Another
4.6. It was further submitted that the 1996 Act is a self-contained
and exhaustive code, based on the UNCITRAL Model Law,
enacted with the objective of promoting speed, efficiency, and
uniformity in arbitral proceedings. Therefore, allowing statutory
tribunals such as the one under the 1983 Act to override the
framework of the 1996 Act would defeat the legislative intent
and undermines India's aspiration to be country that can provide
early dispute settlement mechanism for commercial disputes
through promotion of arbitration.
4.7. It was also submitted that the Madhya Pradesh Arbitration
Tribunal constituted under the 1983 Act functions more akin
to a civil Court than an Arbitral Tribunal. Section 2(d) restricts
its jurisdiction to "ascertained" claims. Section 7(5) permits
summary dismissal, similar to Order 37 of the Civil Procedure
Code, 19089. Section 19 limits the revisional jurisdiction of the
High Court to narrow grounds under Section 115 of the CPC,
thereby excluding recourse under Section 34 of the 1996 Act.
Section 16 mandates delivery of an award within four months
of notice. However, in the present case, even after three and
a half years, no effective progress has been made, highlighting
the Tribunal's inefficacy.
4.8. Additionally, it was submitted that although the appellant had
initially invoked the jurisdiction of the Tribunal under the 1983
Act, it was compelled to withdraw the reference due to an
inordinate delay of over four years, and because the claims were
only "ascertainable" and not "ascertained". Therefore, the ratio
in Madhya Pradesh Rural Road Development Corporation Ltd
v. L.G. Chaudhary Engineers and Contracts10 is not applicable
to the present case.
4.9.
Finally, it was submitted that the appellant's claims, aggregating
to Rs.280.1566 crores pertain to expenses incurred, damages
under Clauses 4.2 and 10.3.4 of the Concession Agreement,
and other project related costs. The quashing of the arbitration
9
For short, "the CPC"
10
(2018) 10 SCC 826
1780
[2025] 7 S.C.R.
Supreme Court Reports
proceedings by the High Court without directing adjudication
either under the 1996 Act or the 1983 Act, has left the appellant
without any effective legal remedy.
4.10. In light of the above submissions and case laws, the learned
Senior Counsel prayed that this appeal be allowed and the
impugned order be set aside.
5.
Per contra, the learned Solicitor General of India appearing for
Respondent No.1 submitted that there is no dispute between the
parties regarding the nature of the Concession Agreement dated
05.01.2012 - it constitutes a works contract. The Government of
Madhya Pradesh enacted the Madhya Pradesh Madhyastham
Adhikaran Adhiniyam, 1983, which provides for the establishment
of the Madhya Pradesh Arbitration Tribunal to adjudicate disputes
arising out of 'works contracts', where the State Government or a
State Public Undertaking is a party. Section 2(1)(d) of the 1983 Act
defines a "dispute" as a claim for ascertained or ascertainable money
valued at Rs. 50,000 or more relating to differences arising from the
execution or non-execution of a works contract.
5.1. It was further submitted that Respondent No.1 is a wholly
owned entity of the State of Madhya Pradesh, and that any
Concession Agreement executed by it falls within the ambit
of a 'works contract' under Section 2(1)(i) of the 1983 Act.
Section 7(1) provides for mandatory reference of such disputes
to the Madhya Pradesh Arbitration Tribunal, notwithstanding
any arbitration clause in the agreement. Section 20 bars the
jurisdiction of civil Courts in such matters, thereby establishing
the Tribunal as the exclusive forum. Furthermore, Section 2(4)
of the 1996 Act, preserves the operation of special statutory
forums like the Madhya Pradesh Arbitration Tribunal, reinforcing
this exclusivity.
5.2. Reliance was placed on the judgment of a three-judge bench
of this Court in Madhya Pradesh Rural Road Development
Authority v. L. G. Chaudhary Engineers and Contractors
(supra), which upheld the exclusive jurisdiction of the Madhya
Pradesh Arbitration Tribunal for disputes arising out of works
contracts. Similarly, in Viva Highways Ltd. (supra), a Full Bench
[2025] 7 S.C.R.
1781
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. and Anr. v.
M.P. Road Development Corporation and Another
of the Madhya Pradesh High Court confirmed the Tribunal's
exclusive jurisdiction, and the Special Leave Petition (Civil)
No.17070/2017 filed against the same was dismissed by this
Court on 18.04.2018.
5.3. The learned Solicitor General also referred to the decisions
in State of Chhattisgarh v. M/s. KMC Construction11, ARSS
Damoh - Hirapur Tolls (P) Ltd. v. M.P. Road Development
Corporation12, and Madhya Pradesh Rural Road Development
Authority v. Backbone Enterprises Limited13, where this Court
reiterated that disputes arising out of a works contract, must
be adjudicated exclusively by the Madhya Pradesh Arbitration
Tribunal.
5.4. Accordingly, the learned Solicitor General contended that
since the Concession Agreement is a "works contract" and
Respondent No. 1 is a State-owned corporation, any dispute
arising therefrom falls squarely within the Tribunal's exclusive
jurisdiction. The appointment of a private arbitral tribunal under
the aegis of ICADR is in direct contravention of the statutory
framework, and the High Court rightly intervened to quash the
arbitration proceedings under the 1996 Act.
5.5. It was further submitted that the appellant had raised inflated
claims amounting to Rs.280.1566 crores before the Madhya
Pradesh Arbitration Tribunal in Reference Case No. 61 of
2018, including claims for loss of profits and damages. These
claims were ex facie time-barred under Section 7-B the 1983
Act, which requires claims to be filed within one year from the
date of communication of the decision of the final authority. The
appellant, having failed to comply with the limitation, sought to
circumvent the statutory bar by initiating private arbitration under
the 1996 Act, reflecting forum shopping and lack of bona fides.
5.6.
The learned Solicitor General pointed out that Reference Case
No. 61 of 2018 was admitted on 06.09.2021, and Respondent
11
(2018) 10 SCC 839
12
2018 SCC OnLine SC 3899
13
(2018) 15 SCC 660
1782
[2025] 7 S.C.R.
Supreme Court Reports
No.1 filed its written statement on 05.11.2021, raising limitation
as a preliminary objection. Thereafter, the appellant invoked
Clause 44.3.1 of the Concession Agreement and issued a
notice under Section 21 of the 1996 Act. Simultaneously, the
appellant filed an application to withdraw the reference before
the Tribunal on 24.06.2022, which was allowed on 08.02.2023.
5.7.
According to the learned Solicitor General, as per Rule
53(3)(b) of the Madhya Pradesh Madhyastham Adhikaran
Regulations, 1985, a party that withdraws a reference without
the permission contemplated under Rule 53(2) is barred from
instituting a fresh reference on the same subject matter. Since
the appellant withdrew its claim without such leave, it is now
barred from re-agitating the same claims before any forum,
including private arbitration. The conduct of the appellant,
therefore, amounts to an impermissible attempt to sidestep
statutory restrictions.
5.8.
Reference was made to Deep Industries Ltd v. Oil and Natural
Gas Corporation Ltd14, where this Court upheld the High
Court's power to exercise writ jurisdiction and quash arbitration
proceedings coram non judice.
5.9.
It was argued that contractual terms cannot override statutory
mandates. If a statute designates a specific forum for
adjudication, parties cannot, by mutual agreement, confer
jurisdiction on an alternate forum. Clause 44.3.1 of the
Concession Agreement, to the extent that it provides for
private arbitration, is void ab initio in the context of a works
contract governed by the 1983 Act. In support, reliance
was placed on Booz Allen and Hamilton Inc v. SBI Home
Finance Ltd15.
5.10. It was further submitted that the term 'ascertained money' under
Section 2(1)(d) includes consequential reliefs. Moreover, the
amendment to the 1983 Act post - Viva Highways, includes
unascertained money claims within the definition of "dispute".
14
(2020) 15 SCC 706
15
(2011) 5 SCC 532
[2025] 7 S.C.R.
1783
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. and Anr. v.
M.P. Road Development Corporation and Another
Thus, the Tribunal has jurisdiction even over claims where
quantification may occur during adjudication.
5.11. The learned Solicitor General also submitted that the appellant's
claims totalling Rs. 280.1566 crores were clearly quantified and
sought money relief alone. No declaratory or indeterminate
relief was prayed for. The appellant's conduct in attempting
to re-agitate these very claims before the ICADR Tribunal -
despite having withdrawn the earlier reference under Rule
53(3)(b) - reveals its intent to circumvent the statutory bar.
Accordingly, the Madhya Pradesh Arbitration Tribunal under
the 1983 Act remained the appropriate and exclusive forum,
and the High Court rightly quashed the arbitration proceedings
initiated under the 1996 Act.
5.12. It was further submitted that by withdrawing the reference
without seeking liberty under Rule 53(2), the appellant has
irrevocably abandoned its claims. The consequence under Rule
53(3)(b) is substantive and bars re-litigation of the same subject
matter. This bar applies irrespective of whether arbitration
is under the 1983 Act or under the 1996 Act. Furthermore,
even dehors the special limitation under the 1983 Act, the
appellant's claims are now time-barred under the general law
of limitation, as per Section 43 of the 1996 Act. The disputes
arose between 2013 and 2015, and the invocation of arbitration
in 2022 and thereafter in 2025 is clearly beyond the prescribed
three-year limitation.
5.13. However, it was submitted that Respondent No.1 would have
no objection, if the appellant were to file an application for recall
of the withdrawal order and seek restoration of the Reference
Petition before the Madhya Pradesh Arbitration Tribunal, which
may be directed to be considered in accordance with law.
6.
We have heard the learned Senior Counsel appearing for both sides
and also perused the materials available on record.
7.
The core issue in the present matter revolves around determining
the appropriate forum for the adjudication of disputes arising out of
the Concession Agreement dated 05.01.2012 entered into between
the appellant and Respondent No.1.
1784
[2025] 7 S.C.R.
Supreme Court Reports
8.
At the outset, the learned Senior Counsel for the appellant submitted
that the writ petition filed by Respondent No.1 was not maintainable
against the appellant as it was directed against a private party. It
is well settled that the remedy under Article 226 of the Constitution
is not confined to individuals seeking enforcement of fundamental
rights. Even juristic persons, including State Corporations, are
entitled to invoke the writ jurisdiction for enforcement of legal rights.
However, when a State Corporation seeks relief against a private
party, the maintainability of the writ petition must satisfy certain
threshold requirements, namely, that the dispute involves a public law
element rather than being confined to the realm of private contractual
obligations, and that the private party is performing a public duty
or is subject to a statutory obligation in relation to the State entity.
8.1. In the present case, Respondent No.1 is a State - owned entity
and the project in question pertains to the development of Umri -
Pooph - Pratappur Road under a Concession Agreement on
a BOT (Toll + Annuity) basis. Although the dispute emanates
from a works contract governed by the said agreement, the
writ petition was not filed for enforcement of any contractual
obligation. Rather, it was filed to challenge the invocation of
arbitration by the appellant under the Arbitration and Conciliation
Act, 1996, despite the existence of a statutory remedy before
the Madhya Pradesh Arbitration Tribunal constituted under the
Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983.
The issue, therefore, pertained to the availability and exclusivity
of a statutory dispute resolution mechanism, and not merely
to the adjudication of a claim on merits arising out of a private
contractual dispute.
8.2. In this context, reference was made to the decision in Federal
Bank Ltd. v. Sagar Thomas16, wherein, this Court provided a
classification of entities against whom a writ petition may be
maintainable. The following paragraph is pertinent:
"18. From the decisions referred to above, the position
that emerges is that a writ petition under Article 226
16
(2003) 10 SCC 733
[2025] 7 S.C.R.
1785
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. and Anr. v.
M.P. Road Development Corporation and Another
of the Constitution of India may be maintainable
against (i)the State (Government); (ii)an authority; (iii)
a statutory body; (iv)an instrumentality or agency of
the State; (v)a company which is financed and owned
by the State; (vi)a private body run substantially on
State funding; (vii)a private body discharging public
duty or positive obligation of public nature; and
(viii)a person or a body under liability to discharge
any function under any statute, to compel it to perform
such a statutory function."
8.3. This Court in Binny Ltd v. Sadasivan17, noted the distinction
between public and private functions; and clarified the scope
of writ jurisdiction under Article 226 in the context of private
contractual disputes involving entities that may be performing
public functions. The relevant paragraphs are extracted below
for ready reference:
"11....... It is difficult to draw a line between public
functions and private functions when they are being
discharged by a purely private authority. A body
is performing a "public function" when it seeks to
achieve some collective benefit for the public or a
section of the public and is accepted by the public
or that section of the public as having authority to do
so. Bodies therefore exercise public functions when
they intervene or participate in social or economic
affairs in the public interest."
"29. Thus, it can be seen that a writ of mandamus
or the remedy under Article 226 is pre-eminently a
public law remedy and is not generally available
as a remedy against private wrongs. It is used
for enforcement of various rights of the public
or to compel the public/statutory authorities to
discharge their duties and to act within their
bounds. It may be used to do justice when there is
17
(2005) 6 SCC 657
1786
[2025] 7 S.C.R.
Supreme Court Reports
wrongful exercise of power or a refusal to perform
duties. This writ is admirably equipped to serve
as a judicial control over administrative actions.
This writ could also be issued against any private
body or person, especially in view of the words used in
Article 226 of the Constitution. However, the scope
of mandamus is limited to enforcement of public
duty. The scope of mandamus is determined
by the nature of the duty to be enforced, rather
than the identity of the authority against whom
it is sought. If the private body is discharging a
public function and the denial of any right is in
connection with the public duty imposed on such
body, the public law remedy can be enforced.
The duty cast on the public body may be either
statutory or otherwise and the source of such
power is immaterial, but, nevertheless, there
must be the public law element in such action.
Sometimes, it is difficult to distinguish between public
law and private law remedies. According to Halsbury's
Laws of England, 3rd Edn., Vol. 30, p.682,
"1317. A public authority is a body, not
necessarily a county council, municipal
corporation or other local authority which
has public statutory duties to perform and
which perform the duties and carries out
its transactions for the benefit of the public
and not for private profit."
There cannot be any general definition of public
authority or public action. The facts of each case
decide the point."
.....
Applying these principles, it can very well be said
that a writ of mandamus can be issued against a
private body which is not a State within the meaning
of Article 12 of the Constitution and such body is
amenable to the jurisdiction under Article of the
[2025] 7 S.C.R.
1787
Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. and Anr. v.
M.P. Road Development Corporation and Another
Constitution and the High Court under Article 226
of the Constitution can exercise judicial review of
the action challenged by a party. But there must
be a public law element and it cannot be exercised
to enforce purely private contracts entered into
between the parties."
8.4. Respondent No. 1 was incorporated on 14.07.2004 to develop,
build, maintain, and operate the State Highways, District or other
local body roads, expressways, and government buildings in
Madhya Pradesh. Respondent No. 1 also, on contract, develops
and maintains National Highways in or passing through Madhya
Pradesh. The Madhya Pradesh Highways Act, 2004, repealing
the 1936 Act, also reiterates the State's role in the development,
construction, and maintenance of roads in the State. Since the
right to access any part of the country, with certain exceptions
and restrictions under certain circumstances, is a fundamental
right guaranteed under Article 19(1)(g) of the Constitution,
and the right to safe, well-maintained, and motorable roads
is recognised as a part of the right to life under Article 21 of
the Constitution of India, it is the responsibility of the State to
develop and maintain the roads directly under its control. The
contract for laying of a State Highway/District Road, when
assigned by the Corporation owned and run by the government,
assumes the character of a public function - even if performed
by a private party - and would satisfy the functionality test to
sustain the writ petition. Accordingly, in view of the statutory
framework and the nature of relief sought, the writ petition
involves a public law element and was thus maintainable before
the High Court. The decisions relied upon by the appellant
are factually distinguishable and pertain to materially different
contexts.