Madhya Pradesh High Court
Ram Niwas Shukla vs State Of M.P. And Anr. on 6 February, 2006
Equivalent citations: 2007(1)ARBLR164(MP), 2006(2)MPHT336
Author: Manjusha Namjoshi
Bench: Manjusha Namjoshi
ORDER
1. A short controversy involved in this revision is that whether a reference application filed before the Tribunal beyond the period of 18 months from the date of referring dispute to the Final Authority under the contract, but within one year of the decision of Final Authority is barred by limitation under Section 7-B of M.P. Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as The Act, 1983').
2. The facts in short are that the applicant is a contractor. A contract was awarded to the applicant for the construction of 48 family quarters at Rewa. The aforesaid work could not be completed within the stipulated time. The applicant referred the dispute to the Chief Engineer who was Final Authority under the agreement dated 1-9-1982. The Chief Engineer did not take any decision for a period of near about 1 1/2 years to decide the dispute and on 4-5-1994 rejected it. The applicant preferred a reference petition before the Arbitration Tribunal on 24-5-1994, within a period of 20 days from the date of decision of the Chief Engineer. Along with the application, applicant filed an application seeking condonation of delay under Section 17-A of the Act, 1983. The Tribunal considered this application and found that the applicant ought to have filed the reference application within a period of 18 months from the date of filing the dispute before the Chief Engineer and after 18 months from the date of filing of the dispute to the Chief Engineer, the application was barred by limitation under Section 7-B. There is no provision for condonation of delay in the Act or even under Section 17-A, invoking inherent powers of the Tribunal. This order is under challenge in this revision. Learned Counsel for the applicant submitted as under:
(1) That the limitation as prescribed under Section 7-B of the Act, 1983, is 18 months from the date of filing of the dispute to the Final Authority. If the dispute is not decided within a period of 6 months, the applicant is having right to file reference petition before the Tribunal within a period of one year from the aforesaid date, but in case the said Authority has decided the matter after a period of 6 months then the applicant is within its right to file reference petition within a period of one year from the date of decision and the reference application filed by the applicant before the Arbitration Tribunal was within limitation.
(2) That even if the applicant has filed an application for condonation of delay invoking powers under Section 17-A of the Act, 1983, it was a misconceived application as the application filed by the applicant itself was within the limitation. It is not a case where the Authority has not taken any decision and the petitioner filed an application after 18 months from the date of preferring the dispute to the Final Authority, but in this case the decision has been taken by the Final Authority so the reference petition was within the limitation.
3. Shri Vivek Awasthy, learned G.A. supported the order and submitted that if the dispute was not decided by the Authority within a period of six months, as provided under Section 7-B of the Act of 1983, the applicant ought to have preferred a reference petition within a period of one year immediately after 6 months. The proviso of Section 7-B provides limitation and in case the reference petition was not filed within a period of 18 months from the date of filing of the dispute before the Chief Engineer, it was barred by limitation. Merely the Chief Engineer took a decision after 6 months, will not give any fresh cause of action in this regard. The applicant himself sought condonation of delay by filing an application under Section 17-A of the Act of 1983 then the applicant can not say that no such application was required or the reference petition filed before the Tribunal was within time. The principle of approbate and reprobate shall apply in the matter and different plea can not be permitted to be taken by the applicant at this juncture.
4. To appreciate the rival contention of the parties, the provision of Section 7-B of the Act, 1983, which are relevant may be looked into:
7-B. Limitation (1) The Tribunal shall not admit a reference petition unless
(a) the dispute is first referred for the decision of the Final Authority under the terms of the works contract; and
(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the Final Authority:
Provided that if the Final Authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months.
(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the Final Authority under the agreement.
5. The aforesaid provision is very specific. It provides that the Tribunal shall not admit the reference petition unless the dispute is first referred for the decision of the Final Authority under the terms of the works contract, and the petition to the Tribunal is made within one year from the date of communication of the decision of the Final Authority.
6. The proviso provides that if the Final Authority fails to decide the dispute within six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of limitation. Though the aforesaid provision gives a right to the applicant and provide limitation for filing reference application, after expiry of six months, if no decision is taken by the Final Authority in this regard. Clause (b) of Sub-section (1) of Section 7-B of the Act, specifically provide that the petition to the Tribunal can be filed within one year from the date of communication of the decision of the Final Authority, when the Section itself provide that a petition can be filed within a period of one year from the dale of communication of the decision of Final Authority, then the proviso has to be read with the main Section. When the main section itself makes it clear that such a petition can be filed within a period of one year from the date of decision, the respondents can not curtail the right of litigant by the aid of proviso.
7. The function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. The Apex Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha . Considering the question held "as a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule". The proper function of proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of proviso to read it as a providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. A proviso has no repercussion on the interpretation of the enacting portion of the section so as to exclude something by implication which is embraced by clear words in the enactment. (Justice G.P. Singh on Principles of Statutory Interpretation, Xth Edition Pages 186-187).
8. The language of proviso even if general is normally to be construed in relation to the subject matter covered by the section to which the proviso is appended. In other words normally a proviso does not travel beyond the provision to which it is proviso. The Apex Court in Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax AIR 1955 SC 785, considering the scope of proviso held that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. In nut shell a proviso must be considered in relation to the particular matter to which it is stands as a proviso.
9. Section 7-B (1) of the Act firstly provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of the Final Authority under the terms of the works contract. This makes a mandatory obligations on the part of a person who is willing to file a reference application to the Tribunal to firstly refer the dispute to the Final Authority. After enactment of Section 7-B (1) (a) of the Act, 1983, it is now the requirement of the law to the applicant to firstly refer the matter as required under Clause (a) of Sub-section (1). Thereafter Clause (b) of Sub- section (1) provides that the petition to the Tribunal shall be made within one year from the date of communication of the decision of the Final Authority, meaning thereby the petitioner is entitled to file a reference petition within one year from the date of communication of the decision of the Final Authority. The provision further provide that if the Final Authority fails to decide the dispute within a period of 6 months from the date of reference to it, the petition to the Tribunal shall be made within a year of the expiry of the period of 6 months, but it does not provide that in case the Final Authority decides the matter after a period of 6 months, there shall be a bar to file reference application thereafter. If the petitioner takes a risk and awaits the decision of the Final Authority and Final Authority after a period of 6 months decides the matter, the petitioner if dissatisfied with the final decision is entitled to file a petition to the Tribunal within a year from the date of communication of the decision under Clause (b) of Sub-section (1). Section 7-B also does not provide that the Final Authority shall decide the matter within a period of 6 months and not thereafter. The Final Authority has not been restricted to take final decision within a period of 6 months, then how the petitioner can be restricted to file a petition after the decision of the Final Authority even if it is after six months from the date of reference to it. The legislation in its wisdom has not provided any limitation to the Final Authority to decide the mater or Final Authority has not been debarred from making a final decision after a period of 6 months then the petitioner can not be put to any restriction and is entitled to file the reference application within one year from the date of the decision of the Final Authority. A harmonious construction of the aforesaid provision is that the petitioner after awaiting 6 months from the date of a reference to the Final Authority shall be entitled to file reference petition to the Tribunal within one year of the expiry of the said period of 6 months. If the petitioner finds that the Final Authority is in the process of deciding the matter even after a period of 6 months or takes a risk even after a period of six months and awaits for the decision of the Final Authority, he shall be entitled to file reference petition under Clause (b), but in case the Final Authority does not take any decision even thereafter, the petitioner shall not be entitled to file petition after expiry of one year from the said period of six months.
10. The applicant who approached to the Final Authority by filing dispute and awaited decision of the Final Authority, though he may lost limitation after expiry of one year of the said period of six months but in case, when the dispute is decided by the aforesaid authority after the aforesaid period of six months a fresh cause of action arises in favour of the petitioner, and he can file reference petition before the Tribunal as per the limitation provided in Section 7-B (1) (b). Considering aforesaid, the Tribunal committed an error in dismissing the reference application as barred by time.
11. So far as the second contention of the respondents that the applicant filed an application seeking condonation of delay invoking power under Section 17-A of the Act, and at this stage can not take a different plea and the principle of approbate and reprobate applies in the matter, has no force. Though the applicant has filed an application before the Tribunal invoking inherent powers of the Tribunal under Section 17-A of the Act, but the fact remains that the application itself was within limitation and was filed within a period of 20 days from the date of the decision of the Chief Engineer. If a reference petition itself was within limitation, merely the reference petition filed alongwith an application seeking condonation of delay will not deprive him to urge that the reference application itself was within limitation. The aforesaid application filed by the applicant seeking a condonation of delay itself was misconceived and merely on the ground that the aforesaid application was filed by the petitioner before the tribunal will not be a ground to dismiss the reference petition of the petitioner treating it as barred by time, while the reference filed by the petitioner was within the limitation. In the result, this revision is allowed. The impugned order passed by the Tribunal is hereby set aside and it is held that the reference petition filed by the applicant before the Tribunal was within limitation. The Tribunal shall proceed with the case and shall decide the matter on merits in accordance with law. The applicant shall be entitled for the cost of this reference petition which is quantified Rs. 1.000/- payable by the respondents.