Madhya Pradesh High Court
Mahesh Chand Gupta vs State Of Madhya Pradesh And Ors. on 21 September, 1990
Equivalent citations: AIR1991MP226, 1991(0)MPLJ520, AIR 1991 MADHYA PRADESH 226, 1991 MPLJ 520 (1991) JAB LJ 101, (1991) JAB LJ 101
JUDGMENT T.N. Singh, J.
1. Petitioner was registered as A-II Class Contractor in the Irrigation Department on 4-10-1985. His registration is valid for five years. He had done some work for the Department and in that connection, he raised a "dispute" claiming Rs. 3,60,214/- from the Department by way of a Reference made to the Tribunal constituted under the Madhya Pradesh Madhyastham Adhikaran Adhiniyam,-1983, for short, 'the Adhiniyam'. He did not pay the requisite Court-fee, but made an application that he be treated as an indigent person and allowed to pursue the reference application without payment of Court-fee. By order dated 10-7-1990, his prayer being rejected by the Tribunal, he has challenged that order before us on the writ, side.
2. Although in the impugned order, the Tribunal has found that the applicant/petitioner was possessed of sufficient means to pay the requisite Court-fee of Rs. 11,942/ -, in this Court, the legal plea forcefully pressed by Government Advocate, Shri S. B. Mishra, is that provisions of Order 33, CPC, being not applicable to the proceedings before the Tribunal and otherwise too, there being no inherent jurisdiction vested in that forum to entertain a reference under Section 7 of the Adhiniyam without payment of Court-fee, the petitioner can have no grievance and on that ground, the impugned order ought to be maintained. Being required, therefore, to examine the important question of law which Shri Mishra has raised, we requested Shri R. D. Jain to act as amicus curiae as the petitioner appeared in person and addressed us himself from which we found no assistance. The matter was first heard on 27-8-1990, but Shri R. D. Jain addressed us on 4-9-1990 as amicus curiae.
3. Before we proceed to deal with the arguments advanced by Shri Jain, we would like to refer to salient features of the Adhiniyam. In the long title, the object of the Adhiniyam stated is "to arbitrate in disputes to which the State Government or a Public Undertaking owned or controlled by the State Government, is a party, and for matters incidental thereto or connected therewith." The term "dispute" defined in Section 2(d), "means any difference relating to any claim valued at Rs. 50,000 or more, arising out of the execution or non-execution of a works contract or part thereof; Sub-section (2) contemplates that words and expressions used but not defined in the Adhiniyam, would have the meaning assigned to them in the Arbitration Act, 1940. Tribunal is constituted with the Chairman who must be or had been Judge of a High Court and with other members who may be a District Judge of seven years standing or a person holding for not less than five years the post of Revenue Commissioner or other post of equivalent rank and indeed, he may also be a Chief Engineer in the Public Works, Irrigation or Public Health Engineering Department, holding that post for not less than five years. Chapter III deals with commencement of proceeding before Tribunal and Procedure of Tribunal, containing Sections 8 to 15; Chapter IV is concerned with award and orders of Tribunal or its Benches, embracing Sections 16 to 18. High Court's power of revision, contemplated under Section 19 is provided in Chapter V. Miscellaneous provisions are made in Chapter VI which contains Sections 22 to 29.
4. Some of the relevant provisions, crucial to the decision of the question agitated, we extract below:
"7. Reference to Tribunal.-- (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal.
(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments.
(3) The reference shall be accompanied by such fee as may be prescribed.
"16. Award.--(1) The Tribunal shall after recording evidence, if necessary and after perusing the material on record and on affording opportunity to parties to submit their arguments, make an award:
Provided that the Tribunal may make an 'interim' award.
(2) The Tribunal shall, as far as possible make its award within four months from the date of service of notice of reference on Opposite Party.
(3) The Tribunal may award costs and interest at such rate as may appear reasonable to it.
(4) The award shall be as per opinion of the majority of the members except in the case of one member Beneh.
(5) The award shall spell out clearly the relief granted, the party in whose favour and against whom relief has been granted and by whom and in whose favour costs and interest, if any, are payable.
xxx xxx xxx
17. Finality of award.-- Notwithstanding anything to the contrary contained in any law relating to arbitration but subject to Section 19, an award including an 'interim' award, made by the Tribunal under this Act, shall be final and binding on the parties thereto.
18. Award to have force of decree of District Court.-- An award, including an 'interim' award as confirmed, rescinded or varied by an order in revision if any made under this Act, shall be deemed to be decree within the meaning of Section 2 of the Code of Civil Procedure, 1908 (No. 5 of 1908) of the principal Civil Court of original jurisdiction within the local limits whereof the award or the interim award has been made and it shall be executable accordingly.
5. The crux of Shri Jain's contention is that the Tribunal acts as a "Civil Court" and it must be deemed, therefore, to possess inherent, powers of a Civil Court as also jurisdiction contemplated under Order 33, C.P.C. He fairly conceded that inspiration for that proposition, he derived from this Court's decision, recently rendered by a Full Bench in Sarmania Pai v. M. P. Rajya Parivahan Nigam, 1990 Jab LJ 386 : 1990 MPLJ 387 : (AIR 1990 Madh Pra 306). That was on the applicability of Order 21, CPC to awards of MACT. For reasons to follow, we are of the view that powers and jurisdiction of a Motor Accident Claims Tribunal, constituted under Motor Vehicles Act, for short, M. V. Act, are of a totally different nature and character. We agree with Shri Mishra that the Tribunal constituted under the Adhiniyam is a new forum and is not a Civil Court and we also agree with him that no Court and Tribunal can claim to possess any inherent power and jurisdiction when a specific controlling provision is made in the statute, creating the forum. Law, in our view, is well settled that inherent power cannot be exercised by any Court or Tribunal to nullify express statutory provision to the contrary. (See Cotton Corporation, AIR 1983 SC 1272; Manoharlal, AIR 1962 SC 527).
6. On referring to Section 7(3), it appears clear that one of the conditions precedent that "shall" be satisfied for invoking jurisdiction of the Tribunal on the application for reference made thereunder is payment of the "fee as may be prescribed" with the application. There being, thus, specific provision for reference application to be filed "accompanied" by fee prescribed, there can be no scope for the Tribunal to exercise its inherent power to nullify that provision. Section 8 provides that reference applications filed under Section 7 are to be scrutinised and defects and deficiencies found therein are to be removed first and without that, that shall not be registered or numbered, to be placed before the Chairman for assigning the same to any "Bench of the Tribunal for giving award". It is only after the case is assigned to a particular Bench that, as per Section 8(4) notice shall be issued to the opposite party to show cause and under Sub-section (5), reply in writing is filed by the opposite party. As per Section 16, award is made by the Bench concerned ("Tribunal") after perusing the materials on record (including evidence, if tendered) and hearing arguments of parties. Section 29(g) having empowered the State Government to make provision by framing rules in regard to "fees payable in connection with reference" etc. and Rule 10 having made that provision, the Tribunal is not competent to entertain and decide a reference in a case when the application is filed without Court-fees prescribed under the said Rule. In Cotton Corporation's case (AIR 1983 SC 1272) (supra), in clear terms, it has been laid down that in exercising inherent power, even Civil Court cannot overlook statutory provisions circumscribing those powers. Their Lordships explained the ratio in Manohar Lal's case (AIR 1962 SC 527) (supra) where indeed it was held that CPC itself having recognised existence of inherent powers of the Court, there could be no question of implying any powers outside the limits of the Code.
7. We would regard it to be trite law that limits of powers and jurisdiction of any forum are to be culled out from the provisions of the mother instrument which itself, in some cases, may provide insight into "pre-natal circumstances" on the basis of which too those parameters may be appropriately defined. Manohar Lal's case (supra) does support this view in which reference to "circusmtances" not contemplated under Order 39, CPC are referred to empower a Civil Court to pass orders for temporary injunction, exercising its inherent power. Evidently, the pre-natal circumstances can be of pre-existing legal entitlement. In A. R. Antulay v. R. S. Nayak (AIR 1986 SC 157) (sic) it is held that the power to create or enlarge "jurisdiction" is legislative in character as "jurisdiction" comes solely from the law of the land and cannot be exercised otherwise; it must be provided for either in the Constitution or in the laws made by the Legislature. It is said to be "the authority or power of the Court to deal with a matter extending to making an order carrying binding force. Court cannot confer jurisdiction on itself which is not provided in the law. In D. N. Tanreja v. Bhajanlal, (1988) 3 SCC 26 : 1988 MPLJ 407, it has been held that when a Court is conferred with power or jurisdiction to act in a particular manner, the exercise of jurisdiction or the power will involve acting in that particular manner and in no other.
8. Butterworths' Words and Phrases Legally Defined, Vol. 3, at p. 113, states succinctly "by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision." That the limits of "jurisdiction" of any Court can be variously circumscribed is recognised in Kiran Singh, AIR 1954 SC 340 stating that defects of jurisdiction may be either pecuniary or territorial and it may also be in respect of subject-matter of the action. Evidently, Section 8(2) refers to curable defects of jurisdiction any application for reference made under Section 7 can be taken cognisance of by the Tribunal only after any defect from which it suffers in respect of matters enumerated in Section 7 is removed. The Tribunal, accordingly, cannot exercise its inherent power to entertain a reference under Section 7 unless it is made in "writing" and drawn up in prescribed form with supporting affidavit and is accompanied by the prescribed fee. Any defect in the application in respect of any of those matters is to be removed first to enable the same to be placed before the Chairman for assigning the reference for disposal to any particular Bench.
9. Sections 7 and 8, read together, leave no scope for any application to be filed either with the reference petition or separately for dispensing with any of the prescribed requirement contemplated under Section 7. It is true, Section 10 empowers the Tribunal to "make regulation for transaction of business before it or before its Benches". It is also true, the Tribunal is empowered under Section 11 to "regulate its own procedure as it may think just and fair", albeit subject to the regulations framed. But, no regulation, in our opinion, can be framed by the Tribunal and no procedure can be followed by the Tribunal as would render nugatory Sections 7 and 8. Indeed, by regulation, no inherent power can be created by the Tribunal. No inherent power can be exercised by the tribunal in opposition to the provisions contemplated under Sections 7 and 8.
Obviously, exercise of powers by a Court or Tribunal must relate to the limits of its statutory jurisdiction. This proposition has been examined and recognised in this Court's recent decision in the case of Phariya Bricks Works, 1990 MPLJ 371 holding that when any interim application is dealt with by a Court exercising appellate jurisdiction, the nature and character of order passed in regard to that application can partake the form only of an appellate order.
10. True, in Sarmaniya Bai's case (AIR 1990 Madh Pra 306) (supra), this Court's Full Bench has taken the view that for all intents and purposes, Motor Accidents Claims Tribunal acts like a Civil Court and that view was taken on examining relevant provisions of M. V. Act (Old). Indeed, it is also true, in that case, it has been held that the said Tribunal is possessed of inherent jurisdiction to enforce its own awards in accordance with the provisions of CPC, as applicable to execution of orders and decrees passed by a Civil Court. Although Shri Jain has endeavoured to draw parallel between relevant provisions of M. V. Act and the Adhiniyam to impart the same character to the jurisdiction of the Tribunal constituted under the Adhiniyam and to invest the said Tribunal with "inherent jurisdiction" in the same manner, we have not found it possible to accept his contention. He has submitted that Section 110-C of that Act contains provision parallel to Sections 10, 11 and 12 of the Adhiniyam. He has, however laid much stress on the deeming provision contained in Sections 18 and 24 of the Adhiniyam, citing Shri Ram Narain v. Simla Banking, AIR 1956 SC 614.
11. But, as the law is, the effect of legal fiction being obviously restrictive, it is not possible to extend or enlarge the scope of the fiction contemplated under Sections 18 and 24 to subserve any other purpose than that expressly contemplated. See, in this connection, Bengal Immunity Co. v. State of Bihar, AIR 1955 SC661; C.I.T. v. Vadilal, AIR 1973 SC 1016. The clear object", in our opinion, of Section 18 is rather to avoid use of inherent power in regard to enforcement of awards passed by the Tribunal. It has been enacted to vest jurisdiction in Civil Courts to execute the award passed by the Tribunal under the Adhiniyam in the absence of which, that would not have been possible. Similarly, the object of Section 24 is to ensure that parties in a proceeding before it do not perjure or defraud the Tribunal and it is meant to insulate the Tribunal against the risk of passing a wrong or illegal award. Section 24 contemplates that the Tribunal "shall be deemed to a Civil Court and any reference or legal proceeding before it shall be deemed to be judicial proceeding for the purposes of any offence affecting administration of justice in so far as it is concerned with such reference or legal proceeding. "Shri Ram Narain (AIR 1956 SC 614) (supra), cited by Shri Jain, at para 11, also limits the scope of the deeming provision of the relevant enactment. Their Lordships observed that the question to be decided was not whether the Tribunal under that Act was a "Court", but under the deeming provision, whether it had jurisdiction for executing the decree, acting as a "Court" for that purpose.
12. It would be rewarding to refer to some provisions of M.V. Act (old) considered in Sarmaniya Bai (AIR 1990 Madh Pra 306) (supra) because the opinion of the Full Bench was rendered on the basis not only of Section 110C, but on consideration of the entire gamut of the provisions relating of Claims Tribunal constituted therein. It was duly noted that under Section 110, the Claims Tribunals did not become an entirely new forum enforcing an entirely a new remedy. It was left to the State Government to allow Civil-Courts to exercise jurisdiction in some areas even within the same State while constituing Claims Tribunals in respect of other areas "for the purpose of adjudicating upon claims of compensation in respect of accidents in involving death or bodily injury to person arising out of the use of motor vehicles". The Full Bench held, "it is obviously an essential attribute of the Claims Tribunal that it acts judicially and exercises its civil jurisdiction in deciding claims relating to civil wrong.....". Scope was found accordingly for applying the test of "trapping" enuniciated by Apex Court in State of Haryana v. Darshana Devi, (1979) 2 SCC 236 : (AIR 1979 SC 855).
13. On the other hand, the Adhiniyam makes no secret of the fact that the "dispute" contemplated under Section 2(d) is to be "arbitrated" and unlike jurisdiction of a Motor Accidents Claim Tribunal, jurisdiction is not vested in that Tribunal to "adjudicate" the dispute. In Black's Law Dictionary, 5th Edition, at p. 39, the word "adjudication" is said to mean, "the formal giving or pronouncing a judgment or decree in a cause"; arid at p. 96, "arbitration" is said to connote, "the reference of a dispute to an impartial person chosen by parties to the dispute to agree in advance to abide by the arbitrator's award issued after a hearing at which both parties have an opportunity to be heard." Wharton's Law Lexicon defines "adjudication" to mean, "giving of pronouncing a judgment or decree". Stroud's Judical Dictionary (3rd Edition) Vol. I, gives the classic definition of "arbitration" propounded by Romilly, M.R. in Collins v. Collins, (1858) 28 LJ Ch 184 (186) that it means, "a reference to the decision of one or more persons, either with or without umpire, of a particular matter in difference between parties". The term "adjudication" is used to imply "a judgment of a Court or as involving the exercise of judicial power to a hearing upon an issue, the receiving and weighing of evidence and act of rendering a judgment. (See Corpus Juris Secundum), Vol.2, p.49). Arbitration has a Common Law origin and has always been contra-distinguished with a judicial proceeding and it has been noticed that even in cases of statutory arbitration, the essential principles do not change (ibid, Vol. 6, Pp. 152-154).
14. If we look at Section 16 of the Adhiniyam, we find little scope to hold that the "dispute" in regard to which reference is made to it by any party to a "works contract" is meant for. "adjudication" of the Tribunal. It is not required to render any "judgment" and, on the other hand, jurisdiction is vested in it to pass only an "award". What shall be contained in that "award is spelt out clearly in Section 16(5) to make it clear that the Tribunal is not obligated to give reasons for reaching the decision rendered in respect to the nature or extent of "relief granted". It will be a good award and will not be assailable in revision in High Court under Section 19 if the award "spells out clearly" only the requirements contemplated thereunder.
15. Importantly, to such award, "finality" is attached in terms of Section 17 and it is made subject only to High Court's revisional jurisdiction, to be exercised in accordance with the provisions of Section 115, C.P.C. Clauses (d) and (e) of Sub-section (2) of Section 19 contain grounds on which, under Section 30, Arbitration Act, an award may be set aside. The term "award" is not defined in the Adhiniyam and is meant, according to Section 2(2), to carry the same meaning as used in the Arbitration Act. It is by now well-settled that under Section 30, Arbitration Act, an "award" is not assailable on the ground that no reasons are given by the Arbitrator in making the award. Civil Courts are competent, no doubt, to examine reasons when a speaking award is passed, but the Arbitrator is hot obligated to give reasons unless mandated to do so by both parties to the dispute. (See Chamosey Bhara v. Jivraj Balloo Sug. & Wvg. Mills, AIR 1923 PC 66; Jivaraj Bhai v. Chintamanrao Balaji, AIR 1965 SC 214 (219); Indian Oil Corporation v. Indian Carbon Ltd., AIR 1988 SC 1340; Food Corporation of India v. Great Eastern Shipping Co., AIR 1988 SC 1198).
16. The view we have taken is fortified by perusal of some of the provisions of C.P.C. Section 2(2) which defines the term "decree" also speaks of "formal expression of adjudication" which is made by the Civil Court. The nature of pleadings which parties to a Civil suit are required to file are of entirely different character and nature; and the proceedings are not summary. The manner in which the Civil Court proceeds ensures judicial application of mind to different stages of the proceeding resulting finally in a judgment passed on the basis of issues framed and evidence adduced in regard thereto. Order 14, Rule 2, requires the Court to pronounce judgment on all issues framed in the suit on the basis of pleadings of parties and any deviation of that requirement is likely to make the judgment appealable. According to Order 20, Rule 4(2), not only a concise statement of the case, the points for determination and the decision Thereon are to be given, but "reasons for such a decision" are also to be given. Accordingly, we do not think if we would be justified in attributing the status of a Civil Court to the Tribunal merely for the reasons that the Tribunal constituted under the Adhiniyam arbitrates on a "dispute" which is of a civil nature. In view of the definition of terms "dispute" and "works contract", in Clauses (d) and (i) of the Adhiniyam, we do not have a moment's doubt that the Tribunal determines rights of parties of civil nature and that proceeding before the Tribunal is also of civil nature. Still, it is not a forum for "adjudication". Time-bound disposal (4 months) and "Bench" deciding any reference being constituted not necessarily by judicially-trained persons, are other important factors that support this view.
17. Although Darshana Devi (AIR 1979 SC 855) (supra) is also pressed in service with much confidence by Sari Jaid, that, in our view, does not cause any dent to the conclusion we have reached. That is based mainly on default of the State to frame rules under Section 111A(a) of the M.V. Act to provide for such matters as "the fees, if any, (that) will be paid in respect of such" applications" for compensation. It was held that claimants of motor accidents are "mostly below the poverty-line" and Article 41 of the Constitution saddled that duty on the State of applying the "pauper-provision to auto-accident claim" to take care of "disablement and underserved want" for fulfiling its constitutional duty contemplated under Article 41. Apparently, parties who come before the Tribunal constituted under the Adhiniyam do not belong to that class. For that, here reference once again to Section 2(d) will suffice; only when the dispute is in relation to a claim valued at Rs. 50,000/- or more, seisin of that can be taken by the Tribunal. Petty contractors are not required to come to the Tribunal and it will be open to them to go to Civil Court for adjudication of their claims and to apply to those courts for exemption from payment of court-fees on the ground of indigence.
18. We would also like to point out in this connection, few material points of difference between the relevant provisions of the Adhiniyam and M.V. Act bearing on the instant controversy. As noted above, Section 111 A(e) deliberately uses the word "if any"; payment of court-fees with applications for compensation is made dispensable by Rules. But the parallel provision in Section 29 of the Adhiniyam, advisedly, on the other hand, chooses not to use that expression and indeed, power to make rules thereunder cannot control the mandatory provision of Section 7(3), embodying the requirement of payment of "fee", accompanying the reference. Evidently, Section 29(2)(a) speaks, therefore, pf Rules to be made also for "the fee payable in connection with the Reference". Shri Jain has drawn our attention to Section 12, but therein also Civil Court's powers which are made exercisable by the Trubunal are exhaustively enumerated; it is unlike Section 110-C(2), M. V. Act which empowers the Claims Tribunal to exercise powers of the Civil Court "for other purposes as may be prescribed". The matters listed in Section 12 do not empower the Tribunal to entertain an application from any party to the proposed reference for exercising power under Order 33, C.P.C.
19. Mangilal's case, 1970 Jab LJ 142 : 1970 MPLJ 1: (AIR 1971 Madh Pra 5), is also a Full Bench decision of this Court and that was considered by the subsequent Full Bench in Sarmaniya Bai (AIR 1990 Madh Pra 306) (supra). Shri Jain has relied on that to stress the proposition that grant of statutory power carries with it authority to make that power effective by necessary implication. That proposition indeed was stated by the apex Court in I.T.O. v. Mohd. Kunchi, AIR 1969 SC 430. With that, there can be no quarrel. The question, in our view, is of the nature and content of power granted to the Tribunal constituted under the Adhiniyam. We have made it very clear that unlike MACT, exercising power of "adjudication", the other Tribunal is entrsted with the power only to "arbitrate" on a dispute- The intention of the Legislature in that regard is clearly expressed in Section 20 of the Adhiniyam; Sub-section (1) ousts explicitly jurisdiction of "Civil Court" to entertain or decide any dispute cognizable by the Tribunal, while Sub-
section (2), on the other hand, expressly contemplates continuation of the pending "arbitration proceeding" under provisions of the Arbitration Act. The Adhiniyam creates a new forum and provides machinery for en-
forcement of the right and remedy being created uno ftatu and finality being attached to its decision in terms of Section 17, it is not permissible to reserve to the Tribunal, by implication, any inherent power of a Civil Court, (see, in this connection, Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC 752)).
20. For the reasons aforesaid; we uphold the contention of Government Advocate Shri S. B. Mishra. We hold that the Tribunal, constituted under the Adhiniyam, does not possess any inherent power to entertain any application from any party making a Reference under Section 7, Adhiniyam, to examine its indigence, applying Order 33, C.P.C. and grant exemption from payment of court-fees in respect of which express provision is made under Section 7(3) and Rule 10(ii) read with item No. 1 of the Schedule contemplated under that Rule. That Rule is framed under Section 29 of the Adhiniyam and is part of Madhya Pradesh Madhyastham Adhikaran Niyam, 1984. No case is made out accordingly for our interference with the impugned order. Although the Tribunal exceeded its jurisdiction in entertaining application of the petitioner and has rejected his prayer on merit for exemption of court-fee, that order being a nullity for the reasons mentioned by us, is not required to be set aside.
21. In the result, the petition fails and is dismissed, but there shall be no order as to costs.