High Court of Gauhati

NBCC (India) Ltd. Vs. The State of Assam and Ors.

MANU/GH/1088/2018

03.12.2018

Arbitration

Where a power is given to do a certain thing in a certain way, it must be done in that way or not at all

The Petitioner has prayed for setting aside the extract of the meeting minutes of the Micro & Small Enterprise Facilitation Council held on 12th march, 2018, in the office chamber of the Commissioner of Industries & Commerce, Assam, by which the Petitioner has been directed to make payment of the Principal & Local Freight Charges with interest to the Respondent No. 3. The Petitioner submits that, the claim of unpaid dues having been rejected by the learned trial Court and this Court vide Money Suit No. 192/2000 and RFA No. 13/2008, the Respondent No. 3 could not have re-agitated the same issue before the Council under the Micro, Small and Medium Enterprises Development Act, 2006.

The letter dated 5th April, 2018 and the extract of the meeting minutes dated 12th March, 2018, clearly show that no conciliation was affected between the parties, with regard to the dispute raised by the Respondent No. 3. Further, the very fact that a direction has been issued by the Council during a meeting in the office chamber of the Commissioner of Industries & Commerce, Assam clearly shows that the issue raised by the Respondent No. 3, with regard to non-payment of his alleged dues has not been decided by way of arbitration, under the provisions of the Arbitration & Conciliation Act, 1996.

It is settled law that, where a power is given to do a certain thing in a certain way, they must be done in that way or not at all. All other methods of performance are forbidden. The facts show that the Council could not have issued the orders/directions to the Petitioner, in violation of Section 18 of the 2006 Act. Accordingly, as the Council did not have the power to issue directions for payment of money in the manner it has done, without a source of power being in existence for the same, the Council's orders/directions passed are without jurisdiction and are arbitrary.

Besides the above, the claim of the Petitioner having been rejected by the Civil Court and the High Court earlier, present Court finds that the direction passed by the Council in its meeting minutes dated 12th Merch, 2018, in the office chamber of the Commissioner of Industries & Commerce, Assam is not sustainable. Writ Petition is accordingly allowed.

Tags : Payment Direction Validity

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