R. N. TANDON v. MADHYA PRADESH ELECTRICITY BOARD — 1996 DIGILAW 876 (MP)

JUDGMENT A. K. Mathur, C.J. & Deepak Verma, J. - A common question of law is involved in both the writ petitions and therefore, they are being disposed of by a common order. For convenient disposal of both the cases, facts given in M.P. No. 783 of 1992 are taken into consideration. 2. The petitioner filed a dispute before the M.P. Arbitration Tribunal, in respect of an amount, which was to be recovered from the respondent, because of certain lapses on their part and also because of rescission of contract. The M.P. Electricity Board (for short the 'Board') invited tenders for earth work construction and the present tender pertained to link canal in Kms. 8.00 to 12.81 of Tons Hydle Project, Sirmour, District Rewa. The petitioner's tender was accepted and thereafter letter of intent was issued by the respondent No. 3 and the petitioner had completed substantial part of the contract. However, some mis-understanding arose between them as a result thereof, the contract was rescinded by the respondents and this compelled the petitioner to file dispute before the Arbitration Tribunal, which came to be registered as Reference No. 80/90. It is alleged that the Arbitration Tribunal has been constituted by the State of M.P. under the provisions of the M.P. Madhyastham Adhikaran Adhiniyam 1983 (hereinafter referred to as the Adhiniyam) which came into effect from 1.3.1985. As per this Adhiniyam, any dispute arising out of execution or non-execution of construction work of the value of more than Rs. 50,000/- shall be disposed of by the Tribunal. The petitioner therefore filed claim before the Tribunal assessing the claim to the tune of Rs. 14,75,000/-. The petitioner also deposited bank guarantee worth Rs. 8,35,392/- as security with the M.P.E.B. before execution of the contract as it was one of the conditions. This security was furnished by way of bank-guarantee drawn in the name of Bank of Baroda. 3. During the pendency of the reference, the Board wanted to encash the bank-guarantee furnished by the petitioner therefore, the petitioner moved an application before the Tribunal dated 18.7.1990 seeking a direction to maintain status-quo in respect of Bank Guarantee. This application of the petitioner was rejected by the Tribunal, on the ground that the Tribunal had no power under Section 17-A of the Adhiniyam, to grant temporary injunction. Hence, the petitioner has filed this petition challenging validity of Section 17-A of the Adhiniyam. This application of the petitioner was rejected by the Tribunal, on the ground that the Tribunal had no power under Section 17-A of the Adhiniyam, to grant temporary injunction. Hence, the petitioner has filed this petition challenging validity of Section 17-A of the Adhiniyam. No return has been filed either by the State or by the M.P. Electricity Board. Be that as it may, question is whether Section 17-A of the Adhiniyam is ultra-vires or not. In this connection, reference can be made to Section 12 of the Adhiniyam, which empowers the Tribunal to apply certain provisions of Code of Civil Procedure, 1908. It is contended that as the provisions of the Code of Civil Procedure have been made applicable to the Adhiniyam, the power to grant interim injunction cannot be taken away from the Tribunal by way of incorporating Section 17-A of the Adhiniyam, prohibiting the Tribunal from granting temporary injunction. Section 12 of the Adhiniyam reads as under : "12. Power of Tribunal or Bench regarding discovery, production of evidence, affidavit etc. Section 12 of the Adhiniyam reads as under : "12. Power of Tribunal or Bench regarding discovery, production of evidence, affidavit etc. (1) The Tribunal shall, for the purposes of this Act, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (No. 5 of 1908), when trying a suit in respect of the following matters, namely : (a) discovery and inspection; (b) enforcing the attendance of any person and examining him on oath; (c) examining or allowing either party to examine an expert on any point at issue where opinion of such expert would be relevant under the provisions of the Evidence Act, 1872 (No. 1 of 1872); (d) Compelling the production of books of account and other documents subject to the provisions of Sections 123 and 124 of the Evidence Act, 1872 (No. 1 of 1872); (e) issuing commissions; (f) Calling proof of facts by affidavit of the party or of any witness and ordering that such affidavit may be read at the hearing on such conditions as the Tribunal or the Bench concerned, thinks fit." Perusal of Section 12 clearly shows that Code of Civil Procedure has been made applicable to the Arbitration Tribunal only on certain matters i.e., inspection and discovery, enforcing the attendance of any person and examining him on oath, examining or allowing either party to a reference to examine an expert on any point at issue where opinion of such expert would be relevant under the provisions of the Evidence Act, 1872, compelling the production of books of account and other documents subject to the provisions of Sections 123 and 124 of the Evidence Act, issuing commissions and calling proof of facts by affidavit of the party or of any witness and ordering that such affidavit may be read at the hearing on such conditions as the Tribunal or the Bench concerned thinks fit. 4. The State Government has framed rules under powers conferred by Section 29 of the Adhiniyam, called the Madhya Pradesh Madhyastham Adhikaran Niyam, 1984 (for short the Rules of 1984) for the purposes of carrying into effect the provisions of the Adhiniyam Rule 1 to 6 of the Rules of 1984 deal with only the service conditions of Chairman and Members. Rule 7 deals with reference. Rule 8 deals with notice. Rule 9 deals with conditions for inspection. Rule 7 deals with reference. Rule 8 deals with notice. Rule 9 deals with conditions for inspection. Rule 10 deals with fees. The Arbitration Tribunal, in exercise of the powers conferred by Section 10 of the Adhiniyam, has framed the Madhya Pradesh Madhyastham Adhikaran Regulations, 1985. These regulations deal with the procedure for receipt of reference. - Regulation 14 deals substituted service. - Regulation 15 deals with discovery, inspection and admission of documents and in that connection, Orders XI and XII of the Civil Procedure Code have been made applicable to the cases before the Tribunal. - Regulation 16 deals with issues. - Regulation 17 deals with summoning and attendance of witnesses and Rules 1 to 21 of Order XVI and Rules 1 to 7 of order XVIA of the Civil Procedure Code have been made applicable. - Regulation 18 deals with summons how served. - Regulation 19 is with regard to summons given to a party for service. - Regulation 20 deals with production of witnesses without summons. - Regulation 21 deals with appearance of parties and consequence of non-appearance - Regulation 22 deals with adjournments. - Regulation 23 deals with hearing of the case. - Regulation 24 deals with final hearing. - Regulation 25 deals with party to appear before other witness. - Regulation 26 deals with memorandum of evidence. - Regulation 27 deals with sequence of evidence. - Regulation 28 deals with power to order any point to be proved by affidavit. - Regulation 29 deals with power to order attendance of deponent for cross-examination. - Regulation 30 deals with power to inspect. - Regulation 31 deals with the award. Application of provisions of Civil Procedure Code has been made applicable to a very limited extent. From reading of Regulations 15, 17 and 21, it clearly appears that provisions of C.P.C. have been made applicable to a limited extent. It is not that that all provisions of C.P.C. have been made applicable to the Tribunal. Therefore, Section 12 of the Adhiniyam has to be read with the meaning that provisions of the C.P.C. have been made applicable only to certain extent. 5. It is not that that all provisions of C.P.C. have been made applicable to the Tribunal. Therefore, Section 12 of the Adhiniyam has to be read with the meaning that provisions of the C.P.C. have been made applicable only to certain extent. 5. Learned Counsel for the petitioner has streneously urged before us that Section 17-A of the Adhiniyam is rendered otios if the proviso of the section is fully implemented as Section 17-A confers inherent powers on the Tribunal and the first proviso thereof says that no interim order by way of injunction, stay or attachment before award shall be granted by the Tribunal. It is submitted that if that power is taken away, then what remains as an inherent power. Simply grant of interim order, by way of injunction, stay or attachment before the award does not exhaust the inherent power. It is one of the inherent powers which can be invoked by the Tribunal. There are many more inherent powers given to the Tribunal. Simply because the power of granting interim direction or stay has been taken away, it does not render Section 17-A of the Adhiniyam as ultra vires. 6. We have already examined that Section 17-A of the Adhiniyam is not ultra vires the Constitution and the Adhiniyam. The Adhiniyam is a special enactment and it is for the Legislature to lay down as to what powers should be conferred on the Tribunal and the Legislature in its wisdom has laid down that the provisions of the Code of Civil Procedure are applicable to the limited extent only Section 17-A, first proviso does not empower the Tribunal to exercise power of granting stay before award. That cannot be said to be ultra vires Section 12 of the Adhiniyam. Except granting interim injunction or stay as contemplated under the proviso, the Tribunal can exercise power of examining witnesses on commission, for appointment of Receiver, and other reliefs, under inherent powers. 7. In view of aforesaid discussion, we do not find any merit in this petition and in connection writ petition No. 780 of 1992. They are accordingly dismissed. There shall be no order as to costs. Security amount if any be refunded to the petitioner, after its due verification. Petition dismissed.