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2006 (1) JLJ 322
(FULL BENCH)
S.S. Jha, Subhash Samvatsar and P.K. Jaiswal, JJ.
State of M.P and another v. Kamal Kishore Sharma
Civil Revision No. 692 of 1998 on reference by Division Bench;
Decided on 13.9.2005.
In this case dispute is referred to the Larger Bench by the Division Bench on the question whether the judgment in the case or Lachmandas v. State of M.P. [2000 (II) MPWN 86 = 2000 (3) MPLJ 211 has rightly held that there is no period prescribed for approaching Superintending Engineer for deciding the dispute under the works contract and whether period mentioned in the works contract is administrative in nature [Para 1
Held: Under clause 28, parties had agreed that the dispute, when it will arise, shall he referred within thirty days from the cancellation, abandonment or any dispute during the subsistence of the contract of the Superintending Engineer. Superintending Engineer shall proceed to decide the dispute within sixty days or within such time as agreed by the parties. Thus there is no restriction in the agreement. Parties have mutually agreed that within thirty days of decision of such dispute, the contractor, if not satisfied with the decision of the Superintending Engineer, may file an appeal within thirty days to the Chief Engineer, which shall be decided by him within a period of six months after affording an opportunity of hearing to parties and opportunity of adducing evidence.
Thus, provision in the Act as well as in the agreement is identical and period of limitation is not curtailed by clause 29 of the agreement. Therefore, section 28 of the Contract Act is not attracted and conditions in clause 29 of the agreement are not void. [Para 10
(2) Madhyastham Adhikaran Adhiniyam, 1983 (M.P.) -- S. 7-B (1) (a) (as amended in 1995) - right to approach Tribunal arises after remedy provides under agreement is exhausted-i.e., first reference of the dispute must be made to Superintending Engineer; thereafter an appeal to Chief Engineer (final authority) should be made -- otherwise, dispute before Tribunal is nor maintainable. 2000 (II) MPJR 86 overruled. (1996) 1 SCC 90, 2004 (II) MPJR SN 10, 1993 JLJ 423 and 1973 JLJ 695 distinguished. [Para 16
¼1½ lafonk vf/kfu;e] 1872& &/kkjk 28& &fookn dk funsZ‘k vkSj vihy Qkby fd, tkus dh ifjlhek djkj esa fofgr& &vf/kfu;e }kjk fofgr ifjlhek vof/k djkj }kjk de ugha gksrh& &vf/kfu;e dk mica/k ykxw ugha gksrkA
bl ekeys esa [kaM U;k;ihB }kjk c`gÙkj U;k;ihB dks bl fookn dk funsZ‘k bl ç‘u ij fd;k x;k gS fd yNeunkl fo- e-ç- jkT; ¿2000 ¼2½ e-ç- ohDyh uksV~l 86&2003 ¼3½ ,e ih ,y ts 21À ds ekeys ds fu.kZ; esa D;k ;g Bhd vfHkfu/kkZfjr fd;k x;k gS fd ladeZ lafonk ds v/khu fookn fofuf‘pr djk, tkus ds fy, v/kh{k.k bathfu;j ds le{k tkus ds fy, dksbZ ifjlhek fofgr ugha gS rFkk D;k ladeZ lafonk esa mfYyf[kr vof/k ç‘kklfud çÑfr dh gSA ¼iSjk 1½
vfHkfu/kkZfjr % [kaM 28 ds v/khu i{kdkjksa us djkj fd;k Fkk fd lafonk ds vfLrRo ds nkSjku fookn dk] tc Hkh og mnHkwr gks] jídj.k] ifjR;kx vFkok fookn ds rhl fnu ds Hkhrj v/kh{k.k bathfu;j dks funsZ‘k fd;k tk,xkA v/kh{k.k bathfu;j] lkB fnu ds Hkhrj vFkok ,sls le; ds Hkhrj tSlk i{kdkjksa us djkj fd;k gks] fookn dk fofu‘p; djus dh dk;Zokgh djsxkA bl çdkj] djkj esa dksbZ fuca/ku ugha gSA i{kdkjksa us ikjLifjd djkj fd;k Fkk fd ,sls fookn ds fofu‘p; ds rhl fnu ds Hkhrj Bsdsnkj ;fn v/kh{k.k bathfu;j ds fofu‘p; ls larq"V ugha gS] rhl fnu ds Hkhrj eq[; bathfu;j dks vihy djsxk tks i{kdkjksa dks lquokbZ dk volj lk{; çLrqr djus dk volj nsus ds i‘pkr mldk fofu‘p; Ng ekl ds Hkhrj djsxkA
bl çdkj] vf/kfu;e vkSj djkj esa Hkh mica/k le:i gS rFkk djkj ds [kaM 29 }kjk ifjlhek vof/k de ugha gqbZ gSA vr% lafonk vf/kfu;e dh /kkjk 28 vkdf"kZr ugha gksrh rFkk djkj ds [kaM 29 dh ‘krsZ ‘kwU; ugha gSA ¼iSjk 10½
¼2½ ek/;LFke~ vf/kdj.k vf/kfu;e] 1983 ¼e-ç-½& &/kkjk 7&[k ¼1½ ¼d½ ¼1995 esa ;Fkk la‘kksf/kr½& &vf/kdj.k ds le{k tkus dk vf/kdkj] djkj esa micaf/kr mipkj lekIr gks tkus ds i‘pkr mnHkwr gksrk gS& &vFkkZr~ fookn dk çFke funsZ‘k v/kh{k.k bathfu;j dks fd;k tkuk pkfg,] rRi‘pkr vihy eq[; bathfu;j ¼vafre çkf/kdkjh½ dks dh tkuk pkfg,& &vUFkk fookn vf/kdj.k ds le{k pyus ;ksX; ugha gSA 2000 ¼2½ e-ç- ohDyh uksV~l 86 myVk x;kA ¼1996½ 1 ,l lh lh 90] 2004 ¼2½ ,e ih ts vkj ,l ,u 10] 1993 ts ,y ts 423 rFkk 1973 ts ,y ts 695 çHksfnrA ¼iSjk 16½
Jha, J.- -1. In this case the dispute is referred to the Larger Bench by the Division Bench on the question whether the judgment in the case of Lachmandas v. State of M.P [2000 (II) MPWN 86 = 2000 (3) MPLJ 21} has rightly held that there is no period prescribed for approaching Superintending Engineer for deciding the dispute under the works contract and whether period mentioned in the works contract is administrative in nature.
2. In the case of Lachmandas (supra) Division Bench has held that reading the arbitration agreement and the Adhiniyam together; it is crystal clear that limitation for approaching the Tribunal under section 7 - 13 of the Adhiniyam commences from the date of communication of decision of the final authority. No period has been prescribed for approaching the Superintending Engineer for deciding the dispute under section 7-13 of the Adhiniyam. The period of 30 days prescribed in the contract agreement is administrative in character and there is no period prescribed for approaching the Executive Engineer under the Adhiniyam. Therefore, period spent before the Executive Engineer will not be counted towards limitation under the Adhiniyam.
3. It may be pointed out that Division Bench has not considered the amendment in section 7-13 of the Adhiniyam vide Amending Act No. 36 of 1995 w.e.f. 15.12.1995. It appears that the said amendment was not brought to the notice of the Division Bench and the Division Bench has considered the provisions which were brought into amendment which came into force by the Amending Act No.9 of 90, which came into force w.e.f. 24.4.1990. The said amendment was substituted by Amending Act No. 36 of 95 w.e.f. 15.12.1995 in section 7-B of the Adhiniyam.
4. Learned Additional Advocate General appearing for the. State has submitted that amended provision of section 7-B, which came into force w.e.f. 15.12.1995, has not been considered by the Division Bench and invited attention to the language occurring in section 7-B (1) (a) "the dispute is first referred to the decision of the final authority under the terms of works contract" and submitted that this provision will include period of limitation agreed by the parties in the works contract and the said contractual period of limitation cannot be termed as administrative instruction. By the amendment in sub-section (1) (a) occurring in section 7-B, words "referred for the decision of final authority under the terms of works contract" means that before approaching Tribunal, contractor must exhaust remedy available to him under the works contract and approach the Tribunal after the decision of final authority. Procedure prescribed in the works contract for approaching the final authority must be followed. He invited attention to clause 29 of the agreement and submitted that whenever a dispute arises out of the works contract, whether arising during the progress of the work or after the completion or abandonment thereof, shall be referred to the Superintending Engineer in writing for his decision, within a period of 30 days of such occurrence. He submitted that it is mandatory under Clause 29 for a contractor to refer a dispute within 30 days to the Superintending Engineer in writing for his decision within the stipulated period of thirty days from the date of such occurrence. When the dispute is referred and after Superintending Engineer has given his decision or instruction, then appeal shall lie to the Chief Engineer who is final authority within a period of thirty days from such decision and after approaching the final authority if final authority has decided the dispute, then the contractor is required to approach the Tribunal within a period of one year from the date of such appeal to the final authority. In case final authority fails to decide the dispute within six months from the date of appeal to it, the dispute before the Tribunal should be filed within one year from the date of expiry of the said period of six months. He submitted tha
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