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2006 DIGILAW 742 (MP)

Gyan Kaur v. State of M. P.

2006-05-19

DIPAK MISRA, U.C.MAHESHWARI

body2006
ORDER Maheshwari, J. -- 1. The petitioners-applicants have preferred this revision petition u/s 19 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (in short "the Act") against the award dated 30.10.1999 passed by Arbitration Tribunal, Bhopal (in short "Tribunal), in Reference Case No. 15/ 97, directing the applicants to pay Rs.43,738.10 p. along with the sum of interest Rs.1,751/- till filing the reference to respondent along with the subsequent interest of 12% per annum on the aforesaid principal amount. 2. The facts giving rise to this revision are that late Charan Singh, the predecessor of the applicants, was allotted some development work of Rampura Dam on accepting his tender for which an agreement No.1/DL, of 1980-81 dated 11.4.1980 was executed between said Charan Singh and respondent. On arising of some dispute, as per procedure late Charan Singh filed a reference case No.44/87 in which the award of Rs.88,495.25 p. was passed by the Tribunal vide order dated 19.4.1989. The same was challenged by the respondent in Civil Revision No.594/89 before this Court but by dismissing such revision the aforesaid award was affirmed vide order dated 24.4.1996. 3. As per earlier claim of the predecessor of the applicant, he completed the work of Rs.8,51,245/-. The same was not denied by the respondent on the contrary, it was admitted that the predecessor of the applicant has completed the work of the aforesaid amount. In view of the aforesaid admitted pleadings, the award dated 19.4.1989 was passed on calculating loss of profit as mentioned in para 52 of the said earlier award. On hearing of the Civil Revision No.594/89 by this Court, it was submitted on behalf of the respondent that said Charan Singh had completed the work worth Rs.8,07,506.90 p. while he had been paid Rs.8,51,245/- hence Rs.43,738.10 p. was overpaid to him. But on consideration of the revision this Court has not given any opinion regarding such overpaid amount. Only it was observed by the Court "it is for the petitioner-State to take steps to recourse of the proceedings in accordance with law". It is note-able that in earlier reference case neither the counter quantified claim as filed by the respondent nor any independent claim was preferred regarding the alleged overpayment. 4. Subsequent to the aforesaid order of this Court dated 24.4.1996, the respondent filed a reference petition No.15/1997 on 17.3.1997 before the Tribunal, claiming the aforesaid overpayment Rs.43,738.10 p. along-with interest. It is note-able that in earlier reference case neither the counter quantified claim as filed by the respondent nor any independent claim was preferred regarding the alleged overpayment. 4. Subsequent to the aforesaid order of this Court dated 24.4.1996, the respondent filed a reference petition No.15/1997 on 17.3.1997 before the Tribunal, claiming the aforesaid overpayment Rs.43,738.10 p. along-with interest. The same was replied on behalf of the applicant saying that the payment was made in consideration for the work carried out by their predecessor. It was also pleaded that such claim was not made in the earlier case either by counter claim or an independent quantified claim. Such dispute was never raised during pendency of the earlier reference in the Tribunal but after passing the said award on dated 19.4.1989 such plea was raised for the first time in the said Civil Revision No.594/89 on filing the same on 6.12.1989. Hence in any case, the non-applicant respondent came to know about the impugned subject matter of dispute on 6.12.1989 in-spite it the impugned reference has not been initiated within limitation prescribed under the Act and prayed for dismissal of the reference. 5. On consideration, the Tribunal has allowed the reference of the respondent and directed to the applicants for refunding the aforesaid amount. Hence this revision is preferred. 6. The learned counsel for the applicant firstly has submitted that by virtue of section 7 either parties has right to refer the dispute to the Tribunal irrespective of the fact whether the agreement contained an arbitration Clause or not and section 7 A defines the subject-matter for which the reference can be made but section 7B, although it is newly enacted section, has on the date of filing the impugned dispute this section was in force provides some procedure and limitations for filing the reference the same was not complied with. 7. 7. According to him section 7B of the Act gives mandate that the Tribunal shall not admit any reference petition unless the dispute is not referred for the decision of the final authority under terms of the works contract and the second condition is that the reference to the Tribunal has to be made within one year from the date of the communication of the decision of the final authority or such authority has failed to decide the dispute within six months then it should be made within one year from the expiration of said six months. Accordingly, if reference petition is filed by either of the parties by virtue of section 7 then the concerning party is also bound to comply the provision of section 7B(a)(b) and its proviso, it is apparent on record that before filing the impugned reference the respondent had never referred its dispute to the final authority under the terms of the works contract at any point of time therefore on account of non-compliance of the mandatory provision the reference petition was not maintainable despite of it, the same was entertained and allowed by the Tribunal. Therefore, the impugned award is not sustainable. 8. He further said that in earlier reference filed by the predecessor of applicants, the respondent has not filed his counter reference or reference independently and after disposing of the earlier case upto the High Court in civil revision in which the dispute was finally adjudicated by this Court then such earlier order having the effect of res judicata against the respondent hence he was stopped to file any further reference petition in relating to the same work of the contract. Therefore, the impugned award is liable to be dismissed on this count also. 9. He also said that even on merits the predecessor of the applicants was paid the some of the bills on proper verification of the work carried out by the competent authority of the respondent according to their measurement book and no overpayment was made hence on this count also the impugned award deserves to be set aside. 10. While, on the other hand, Shri S.K. Yadav, learned Deputy Advocate General appearing on behalf of the State-respondent has supported the impugned award and submitted that it is based on proper appreciation of the evidence as well as legal proposition. 10. While, on the other hand, Shri S.K. Yadav, learned Deputy Advocate General appearing on behalf of the State-respondent has supported the impugned award and submitted that it is based on proper appreciation of the evidence as well as legal proposition. The same is not required any interference at this stage. 11. In view of the aforesaid submissions, we have gone through the record of the Tribunal. It is apparent that before filing the impugned reference the respondent has not referred the impugned dispute to final authority under the terms of works contract for its decision accordingly, such mandatory provision of section 7B of the Act was not followed by the respondent. Even we have not found any pleading in the petition of the respondent in this regard filed before the Tribunal on dated 17.3.1997. 12. On earlier occasion this question was raised the same was answered by the Full Bench of this Court in the matter of Ravi Kant Bansal Engineers and Contractors v. Madhya Pradesh Audyogik Kendra Vikas Nigam (Gwalior) reported in 2006(2) JLJ 186 =2006(2) MP High Court Today on page No.264, in which it is held as under: "9. Sub-section (5) of the Adhiniyam quoted above, however, states that on receipt of the reference under sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording its reasons. Hence, the Tribunal is not under an obligation to admit every claim or counter claim that is filed before it and it has been vested with the power to summarily reject a reference after recording reasons, if it is so satisfied sub-section (1) of section 7B of the Adhiniyam further provides in which cases the Tribunal shall not admit a reference. The said subsection (1) of section 7B, as amended by Amending Act 36 of 1995, is quoted herein before: "7B. 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. 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." It will be clear from clause (a) of sub-section (1) of section 7B of the Adhiniyam that the Tribunal shall not admit a reference petition unless the dispute is first referred for decision of the final authority under the terms of the works contract. This view has already been expressed by the Full Bench of this Court in Civil Revision No.692 of 1998 (State of M.P. and another v. Kamal Kishore Sharma) in its opinion dated 13.9.2005. The word 'and' between clause (a) and clause (b) of sub-section (1) of section 7B quoted above makes it clear that before the Tribunal should be satisfied that the conditions in clause (a) as well as clause (b) of sub-section (1) of section 7B of the Adhiniyam are satisfied. 10. These provisions of sub-section (5) of section 7 and sub-section (1) of section 7B of the Adhiniyam would equally apply to reference of a dispute made by a party in a claim petition as well as reference made by opposite party in a counter claim. Hence, the Tribunal may reject a reference of dispute in a counter claim made by the opposite party summarily for reasons to be recorded if it is so satisfied in exercise' of its powers under sub-section (5) of section 7 of the Adhiniyam. Hence, the Tribunal may reject a reference of dispute in a counter claim made by the opposite party summarily for reasons to be recorded if it is so satisfied in exercise' of its powers under sub-section (5) of section 7 of the Adhiniyam. Similarly, the Tribunal shall not admit the reference of the dispute made in a counter claim if as stated in sub-section (1) of section 7B of the Adhiniyam, the dispute raised in the counter claim has not been referred for decision of the final authority in terms of the works contract or the reference petition in the counter claim to the Tribunal has not been made within the period of limitation mentioned under clause (b) or the proviso thereto under sub-section (1) of section 7B of the Adhiniyam. In the Division Bench judgment of this Court in P.K. Pande (supra), the Tribunal had permitted the counter claim because it was within the period of limitation and the Division Bench accordingly held that by permitting a counter claim or reference the Tribunal had not in any manner violated any of the provisions of the Adhiniyam or Regulations. But in a case where the Tribunal finds that there is an express prohibition in the Adhiniyam. 11. We are, therefore, of the considered opinion that the Tribunal cannot entertain or admit a counter claim if the dispute raised in the counter claim filed by the opposite party has not been referred to the final authority in terms of the works contract or where it has been referred to the final authority but the counter claim has not been filed before the Tribunal within the period of limitation as provided in clause (b) or the proviso to clause (b) of sub-section (1) of section 7B of the Adhiniyam." 13. In view of the aforesaid decision of this Court the reference petition filed by the respondent was not entertain able in the absence of any reference of the alleged dispute to the final authority, mentioned under the terms of the works contract, hence, it is held that the Tribunal has committed grave error in entertaining the impugned reference and also in passing the award. The same is not sustainable under the law. 14. The same is not sustainable under the law. 14. In view of the aforesaid findings, the other question as raised by the counsel for the applicant do not require any consideration on merits as the reference petition itself has been found not entertain-able. Thus, we find apparent perversity and inconsistency and apparent error of jurisdiction in the impugned award of the Tribunal hence it requires interference at this stage for setting aside the same. 15. Therefore by allowing this revision the impugned award of the Tribunal hereby set aside. There shall be no order as to costs. Revision is allowed.