Nirjla Singh vs State of Madhya Pradesh and another

Challenge in the present revision is to an order passed by the M.P. Madhyastham Adhikaran, Bhopal (for short ''the Tribunal'') on 28.11.2006

in Reference Petition No.24/2005, whereby an application filed to substitute legal heirs of the petitioner-contractor was declined inter alia for the

reason that the petitioner has not sought substitution of the legal heirs within 90 days and that there is no prayer for setting aside the abatement.

Learned Tribunal also found that the Advocate could not file an application for substitution on behalf of the deceasedpetitioner.

Learned Counsel for the State submitted that the order passed by the Tribunal is just and proper and does not warrant interference in revision.

We have gone through the order passed by the Tribunal and find the same to be illegal and not sustainable.

The Tribunal is a creation of the Act called ''The Madhya Pradesh Madhyastham Adhinkaran Adhiniyam, 1983'' (hereinafter referred to as ''the

Act''). The procedure required to be followed on receipt of reference by the Tribunal is contained in Section 8 of the Act. Section 11 of the Act

empowers the Tribunal or Bench to regulate its own procedure whereas under Section 12, the Tribunal has been conferred the same powers as

are vested in a Court under the Code of Civil Procedure in respect of certain matters when trying a suit. Section 17-A of the Act gives inherent

powers to the Tribunal to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Tribunal. The

relevant Sections of the Act are as under:-

Procedure on receipt of reference. - (1) As soon as a reference mentioned in Section 7 is received in office of the Tribunal, the same along with

affidavit and documents shall be scrutinized by such responsible official of the staff of the Tribunal as the Chairman may, by general or special order

authorise in that behalf.

(2) The reference if found in order or after removal of any defect or deficiency if discovered shall be registered, numbered and placed before the

Chairman.

(3) The Chairman shall having regard to the nature of the dispute the amount involved and other relevant factor, if any, assign it to a Bench for

giving the award.

(4) The Bench to which the reference is so assigned shall cause notice thereof to be issued to opposite party to show cause. The notice shall be in

such form as may be prescribed and shall specify date for appearance :

Provided that if the Tribunal is satisfied that there is no ground for reference, nothing in this section shall prevent it from dismissing the reference at

any stage of the case, for reasons to be recorded in writing.

(5) The Opposite Party on or before the date specified in the notice for appearance, may file a reply in writing signed by the Opposite Party or its

authorised agent, along with an affidavit verifying the averments made in the reply.

Tribunal or Bench to regulate its own procedure. - Notwithstanding anything to the contrary contained in Arbitration Act but subject however

to any regulations that may be made under Section 10, the Tribunal shall regulate its own procedure as it may think just and fair, but a party shall

not be denied its right of being represented by an advocate or a recognised agent.

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 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 (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.

17A. Inherent powers. - Nothing in this Act shall be deemed to limit or otherwise affect the inherent powers of the Tribunal to make such order as

may be necessary for the ends of justice or to prevent abuse of the process of the Tribunal:

Provided that no interim order by way of injunction, stay or attachment before award shall be granted:

Provided further that the Tribunal shall have no power to review the award including the interim award.

We find that the Tribunal has decided the application for substitution of legal heirs as if the Tribunal was acting as a Civil Court governed by the

provisions of the Code of Civil Procedure. In terms of Section 12 of the Act, the Code of Civil Procedure is applicable only in the matters

pertaining to discovery and inspection; enforcing the attendance of any person and examining him on oath and 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 etc. However, there is no provision in respect of the abatement of the Reference or the applicability of Order 22 of the Code of Civil

Procedure to the proceedings before the Tribunal. Therefore, orders of the Tribunal holding that the Reference abates after the death of the

contractor in the absence of legal heirs within 90 days or that in absence of any application for setting aside abatement, the application for

substitution could not be filed, are clearly in contravention of the statutory provisions.

Section 11 of the Act makes the Tribunal, consisting of a former Judge of the High Court and other non-official members, as persona designata.

As a persona designata, the Tribunal has to frame its own procedure which is equitable, just and proper. Rules of procedure are the handmaids of

justice and technicalities cannot defeat the rights of the parties, more so in a case of an Tribunal, who is a persona designata. In Kailash v. Nanhku,

(2005) 4 SCC 480, the Court was examining the nature of the provisions of the Code of Civil Procedure which contemplated filing of written

statement in a civil suit within 90 days, it was held that the rules of procedure are handmaid of justice and that no party should ordinarily be denied

opportunity of participating in the process of justice dispensation. It was held as under:-

All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent,

but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily

be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute,

the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet

extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar [(1975) 1 SCC

774] are pertinent: (SCC p. 777, paras 5-6)

The mortality of justice at the hands of law troubles a judge''s conscience and points an angry interrogation at the law reformer. The processual

law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the

handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic

sequel otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence - processual, as much as substantive.

In Central Talkies Ltd. v. Dwarka Prasad, AIR 1961 SC 606, the Court was examining as to whether the District Magistrate was a persona

designata. It was held that personae designatae are ""persons selected to act in their private capacity and not in their capacity as Judges"". The

relevant extract read as under:

The argument that the District Magistrate was a persona designata cannot be accepted. Under the definition of ""District Magistrate"", the special

authorisation by the District Magistrate had the effect of creating officers exercising the powers of a District Magistrate under the Eviction Act. To

that extent, those officers would, on authorisation, be equated to the District Magistrate. A persona designata is ""a person who is pointed out or

described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character"". (See Osborn''s Concise

Law Dictionary, 4th Edn., p. 253). In the words of Schwabe, C.J. in Parthasaradhi Naidu v. Koteswara Rao ILR 47 Mad. 369; AIR 1924 Mad.

561 (FB), personae designatae are ""persons selected to act in their private capacity and not in their capacity as Judges"". The same consideration

applies also to a well-known officer like the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate

can also exercise and who can create other officers equal to himself for the purposes of the Eviction Act. The decision of Sapru, J. in the

Allahabad case, with respect, was erroneous.

In State of Gujarat and another v. Gujarat Revenue Tribunal Bar Association and another (2012) 10 SCC 353, it was held that even if the

person heading the tribunal is otherwise a ""judicial officer"", he may merely be persona designata, but not a court, despite the fact that he is

expected to act in a quasijudicial manner.

A tribunal may not necessarily be a court, in spite of the fact that it may be presided over by a judicial officer, as other qualified persons may

also possibly be appointed to perform such duty. One of the tests to determine whether a tribunal is a court or not, is to check whether the High

Court has revisional jurisdiction so far as the judgments and orders passed by the tribunal are concerned. The supervisory or revisional jurisdiction

is considered to be a power vesting in any superior court or tribunal, enabling it to satisfy itself as regards the correctness of the orders of the

inferior tribunal. This is the basic difference between appellate and supervisory jurisdiction. The appellate jurisdiction confers a right upon the

aggrieved person to complain in the prescribed manner to a higher forum whereas, supervisory/revisional power has a different object and purpose

altogether as it confers the right and responsibility upon the higher forum to keep the subordinate tribunals within the limits of the law. It is for this

reason that revisional power can be exercised by the competent authority/court suo motu, in order to see that subordinate tribunals do not

transgress the rules of law and are kept within the framework of powers conferred upon them. Such revisional powers have to be exercised

sparingly, only as a discretion in order to prevent gross injustice and the same cannot be claimed, as a matter of right by any party. Even if the

person heading the tribunal is otherwise a ""judicial officer"", he may merely be persona designata, but not a court, despite the fact that he is

expected to act in a quasi-judicial manner. In the generic sense, a court is also a tribunal, however, courts are only such tribunals as have been

created by the statute concerned and belong to the judicial department of a State as opposed to the executive branch of the said State. The

expression ""court"" is understood in the context of its normally accepted connotation, as an adjudicating body, which performs judicial functions of

rendering definitive judgments having a sense of finality and authoritativeness to bind the parties litigating before it. Secondly, it should be in the

course of exercise of the sovereign judicial power transferred to it by the State. Any tribunal or authority therefore, that possesses these attributes,

may be categorised as a court.

In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, the Court held that an authority can be styled to be persona

designata if powers are conferred on a named person or authority and such powers cannot be exercised by anyone else.

As noted earlier the appellate authority, namely the District Judge, Thallassery has taken the view that since he is a persona designata he cannot

resort to Section 5 of the Limitation Act for condoning the delay in filing appeal before him. So far as this reasoning of the appellate authority is

concerned Mr Nariman, learned counsel for respondent fairly stated that he does not support this reasoning and it is not his say that the appellate

authority exercising powers under Section 18 of the Rent Act is a persona designata. In our view the said fair stand taken by learned counsel for

respondent is fully justified. It is now well settled that an authority can be styled to be persona designata if powers are conferred on a named

person or authority and such powers cannot be exercised by anyone else. The scheme of the Act to which we have referred earlier contraindicates

such appellate authority to be a persona designata. It is clear that the appellate authority constituted under Section 18(1) has to decide lis between

parties in a judicial manner and subject to the revision of its order, the decision would remain final between the parties. Such an authority is

constituted by designation as the District Judge of the district having jurisdiction over the area over which the said Act has been extended. It

becomes obvious that even though the District Judge concerned might retire or get transferred or may otherwise cease to hold the office of the

District Judge his successor-in-office can pick up the thread of the proceedings from the stage where it was left by his predecessor and can

function as an appellate authority under Section 18. If the District Judge was constituted as an appellate authority being a persona designata or as a

named person being the appellate authority as assumed in the present case, such a consequence, on the scheme of the Act would not follow.

..................

Therefore the Tribunal as a persona designata has to follow its own procedure and not that of the Code of Civil Procedure. The provisions of

the Code have not been extended to the Tribunal. Therefore, the Tribunal has gravely erred to hold a Reference as abated. As per Section 8 of the

Act, the Reference once entertained has to be decided on merits. May be, in a given case, if there is no evidence, the Tribunal could return a

finding that the Reference does not merit acceptance, but the same could not be dismissed as having abated.

Still further in terms of Section 17-A of the Act, the Tribunal has been conferred with inherent powers to pass such order as may be necessary

for the ends of justice or to prevent abuse of the process of the Tribunal. In view of the said provisions, we find that the order of the Tribunal

holding that the Reference abates or that the legal heirs cannot be substituted for the reasons that the legal heirs have not filed the application within

time granted in terms of the Limitation Act, 1963 is clearly erroneous and cannot be sustained.

The petitioner-contractor died on 3.12.2005. Since the legal heirs were not party, the application was filed by the counsel along with affidavit

of wife of the deceased, therefore, the Advocate was representing the legal heirs though not stated so in the application filed. This is at best an

irregularity, which will not defeat the rights of the legal heirs.

In view thereof, we find that the order passed by the Tribunal cannot be sustained in law. Consequently, it is set aside and the matter is

remitted back to the Tribunal for a fresh decision in accordance with law. The Tribunal shall seek presence of substituted legal heirs before

proceeding in the matter in accordance with law.

Present Arbitration Revision stands disposed of.