Ramla Construction vs State Of M.P. And Ors. on 25 October, 2005

Madhya Pradesh High Court
Ramla Construction vs State Of M.P. And Ors. on 25 October, 2005
Equivalent citations: 2006 (1) MPHT 423
Bench: K Lahoti, S Dwivedi


ORDER

1. The applicant has filed this revision under Section 19 of M.P. Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred as ‘the Adhiniyam’) assailing the award dated 28-2-2003 passed by M.P. Arbitration Tribunal, Bhopal in Reference Case No. 22/1991, by which the reference application of applicant has been dismissed as barred by time.

2. The facts in short of the case are as under:-

Applicant was awarded a works contract for the construction of Spill Channel of Matiyari Irrigation Project. On 21 -11 -1981, the work order was issued and the last date of completion of work was 20-11-1982. The work could not be completed and after following process, concerned Executive Engineer rescinded the contract on 30-1-1984. Applicant aggrieved by the order of Executive Engineer made a reference to the Superintending Engineer under Clause 3.3.29 of the contract on dated 22-3-1984. The Superintending Engineer decided the matter finally on 31-12-1984 and rejected the claim of the applicant. On 31-12-1984 the remedy of the applicant was to approach Civil Court under the provision of Arbitration Act, 1940. Though the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred as ‘the Act’) was enacted and received the assent of the President on the 7th October, 1983 but because of non-constitution of the Tribunal, the provisions of the aforesaid Act were not enforced. On 1-3-1985, the Tribunal was constituted and the provisions of this Act came into force. In the Act there was no provision in respect of limitation, though the reference application was entertainable under Section 7 of the Act. For the first time by Act No. 9 of 1990, w.e.f. 24-4-1990, Section 7-B was introduced which provided limitation for filing reference applications. The
applicant filed reference application on 23-4-1991 within the time period fixed by sub-section (2) of Section 7-B of the Act. The Tribunal on raising preliminary objections by the respondents found that the cause of action arose to the applicant on 31-12-1984 and in view of the Article 113 of the Indian Limitation Act, 1963, the limitation for filing reference application was three years from the date of cause of action and dismissed the reference petition. This order has been assailed by the petitioner on following grounds:-

(i) That before the insertion of Section 7-B of the Act, no limitation was prescribed for filing reference application. In these circumstances, the Tribunal erred in holding that the reference application ought to have been filed within 3 years from the date of cause of action, which is 31-12-1984.

(ii) Under sub-section (2) of Section 7-B of the Act, special limitation has been extended to all the concerned to file reference application who had not filed any reference application before the insertion of Section 7-B of the Act. In these circumstances, within the limitation prescribed under sub-section (2) of Section 7-B, if the application was filed, the Tribunal erred in hold that the reference application is barred by time.

3. Learned Counsel for the State supported the order and submitted that the residuary Art. 113 Indian Limitation Act, 1963 was applicable in this case and the applicant ought to have filed the application within a period of three years from the date when its case was turned down by the Superintending Engineer vide order 31-12-1984 and the applicants who had not approached to the Tribunal after its constitution on 1-3-1985 was not having any right to approach the Tribunal after enactment of Section 7-B on 24-4-90. The order passed by the Tribunal is in accordance with law and suffers no infirmity warranting interference of this Court.

4. To appreciate the rival contention of the parties, it is necessary to look into the relevant provision. Section 7-B is introduced by Act No. 9 w.e.f. 24-4-1990 and is reproduced for ready reference :-

“7-B. Limitation.- (1) The Tribunal shall not admit a reference,-

(a)       In a case where a decision has been made in connection with a dispute under the terms of the agreement for a works contract by the final authority under the agreement unless the reference petition is made within one year from the date of communication of such decision, if any;
 

(b)      In a case where a dispute has been referred to the final authority under the agreement and such authority fails to decide it within a period of six months from the date of reference to it unless the reference petition is made within one year from the date of 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 sub-section (2) of Section 7-B specifically provides that not withstanding anything contained in sub-section (1), which provides limitation, where no proceedings has been commenced at all before any Court preceding the date of commencement of the Act or after such commencement but before the insertion of Section 7-B w.e.f. 24-4-1990, a reference petition shall be entertained within one year of the date of commencement of Amending Act, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement.

6. By sub-section (2) of Section 7-B, the legislation in its wisdom provided a special limitation to file reference application in respect of those matters in which no reference application was filed, though the cause of action arises prior to insertion of Section 7-B. Before Section 7-B, no period of limitation was provided for filing reference application before the Tribunal. Whether the provision of Section 113 of Limitation Act, 1963 was applicable or not, it has become immaterial after insertion of sub-section (2) which provide a special limitation for filing reference application within a period of one year from the date of insertion of Section 7-B w.e.f. 24-4-1990. Even if it is assumed that the provisions of Limitation Act were applicable prior to insertion of Section 7-B and residuary Art. 113 of Limitation Act was applicable, even then the legislation has provided one year limitation to meet out all the exigencies and permitted the concerned person to file reference application within a period of one year from 24-4-1990. In this regard the provision of sub-section (2) of Section 7-B is very specific. This provision specifically provide that in spite of limitation prescribed under sub-section (1) of Section 7-B, if any reference petition has not been filed irrespective of fact that a decision has been taken or not by the final authority of the agreement, such reference petition shall be entertained within one year from the date of commencement of the Amending Act of 1990.

7. It is a special enactment which provides a special limitation of one year in respect of all the matters which may be filed before the Tribunal. Special limitation has been extended to all the cases which ought to have been filed before the amendment but could not be filed. When the legislation provided special limitation covering a wide field, no narrow interpretation can be made to reject the matters though entertainable under Section 7-B of the Act.

8. In view of the specific provision under sub-section (2) of Section 7-B, the Tribunal ought to have entertained the application and committed an error of jurisdiction in rejecting the application which was filed on 23-4-1991, either that, within a period of one year from the commencement of Act No. 9 of 1990. The order passed by the Tribunal is not sustainable under the law, accordingly it is set aside and it is held that the reference application filed by the applicant is within limitation. The matter is remitted back to the Tribunal to decide the reference application in accordance with law after affording due opportunity of hearing to both the parties. The applicant is entitled for the cost and Counsel’s fee Rs. 500/- from respondents.

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