State of M.P. and Others vs M/s Shirram and Sons

Gohil, J.

Heard on I.A. 144/06, an application for condonation of delay under amended provision of Section 19 of Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 2005.

The petitioner State has filed this revision u/s 19 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as "Adhiniyam") against the award passed by Madhya Pradesh Arbitration Tribunal, Bhopal in Reference Case No. 18/02 passed on 28/2/ 2005. As per office note, this revision is barred by 218 days, as the same has been filed by the State on 2.1.2006.

The brief facts for the disposal of this application are that the award was passed on 28.2.2005 and it was communicated to the petitioner department on 31.3.2005. Thereafter the petitioners were entitled to file the revision u/s 19 of the Adhiniyam within a period of three months, which expired on 30.6.2005. It is not in dispute that on the date when the award was passed or the copy of the award was communicated to the petitioner State, there was no provision for condonation of delay u/s 19 of the Adhiniyam. The legislature by Amended Act of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 2005 (No. 19 of 2005) amended Section 19 and incorporated the provisions, which provided that any application for revision may be admitted after the prescribed period of three months, if the applicant satisfies the High Court that he had sufficient cause for not preferring the revision within such period. The aforesaid amendment received the assent of the Governor on the 25th August 2005 and came into operation w.e.f. 29th August 2005. Admittedly, the petitioner State has filed this revision on 2.1.2006 much beyond the period for three months even from the date of coming into force of the amended provisions for condonation of delay i.e. w.e.f. 29.8.2005.

Now the question before us is whether the petitioner State is entitled to get the benefit of the amended provision inserted in Section 19 for condonation of delay and whether delay can be condoned in this case.

Shri S. B. Mishra, learned Additional Advocate General vehemently argued and submitted that this amendment in Section 19 is in the nature of procedural law and the State legislature by amendment has provided procedure of condonation of delay. Therefore, the effect of it is retrospective in nature and placed reliance on the decision of the Supreme Court in the case of Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and Others, and drew our attention on para 24 of the said judgment, in which the Supreme Court placing reliance on the decision in the case of Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others, and has culled out the principles with regard to the ambit and scope of an amending Act and its retrospective operation as follows :-

(i) A statue which affects substantive right is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statue which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statue should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

(v) A statue which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.

While considering the aforesaid question the Supreme Court has also considered the decision in the case of Garikapatti Veeraya Vs. N. Subbiah Choudhury, and the decision in the case of Union of India Vs. C. Rama Swamy and others, .

The learned counsel for the petitioner State also placed reliance in the decision of Sudhir G. Angur and Others Vs. M. Sanjeev and Others, , in which the Supreme Court has observed that no party has a vested right to a particular proceeding or to a particular forum. All procedural laws are retrospective unless the legislature expressly states to the contrary. The procedural laws in force must be applied at the date when the suit or proceeding comes for trial or disposal. A court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. If a court has jurisdiction to try the suit, when it comes for disposal, it then can not refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted.

In reply Shri K. N. Gupta, learned Sr. Advocate for the respondent submitted that the nature of the amendment is not retrospective in nature and even if it is held that the amendment in the procedure is applicable on the pending proceedings, this revision can not be treated as was pending on the date when the Amending Act came into force w.e.f. 29.8.2005. Therefore, the petitioner is not entitled to get any benefit of the aforesaid amending act as the revision has been filed on 2.1.2006 much beyond the period of limitation and if it is considered that the law, which was applicable on the date of deciding the award, there was no provision for condonation of delay. Even the revision has not been filed within a period of three months from the date of 29.08.2006. Therefore, it has to be held that the petitioner is not entitled to get the benefit of the amended provision of law and the delay can not be condoned and the same is liable to be dismissed.

Having heard the learned counsel for the parties we have also perused the relevant amendment, which reads as under :-

Amendment of Section 19 - For sub-section (1) of Section 19 of the Principal Act, the following sub-section shall be substituted, namely: (1) The High Court may suo motu at any time or on an application for revision made to it within three months of the award by an aggrieved party, call for the record of any case in which an award has been made under this Act by issuing a requisition to the Tribunal and upon receipt of such requisition the Tribunal shall send or cause to be sent to that Court the concerned award and record thereof:

Provided that any application for revision may be admitted after the prescribed period of three months, if the applicant satisfies the High Court that he has sufficient cause for not preferring the revision within such period.

It is not in dispute that amendment came into force w.e.f. 29.08.2005 and the same has not been made applicable retrospectively. The award was passed on 28.2.2005 and the same was communicated on 31.3.2005 and the revision was required to be filed within a period of three months from the date of communication of the order i.e. on 31.3.2005. Admittedly, the State has not filed revision within three months. The amendment came into force w.e.f. 29.8.2005. Even if it is considered that the provision of amending Act may be applicable in the pending proceedings being the part of procedural law it is true that no revision of the State was pending on 29.8.2005 and there was; no application of condonation of delay. It has been held in the case of Hitendra Vishnu Thakur (supra) that a procedural statue should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. A statute which not only changes the procedure but also creates new rights and labilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication. According to us, the amending Act of 2005 (19 of 2005) has created a new rights in favour of a party to get condonation of delay in a revision. Therefore, if it is a question of creation of new rights, then the law has to be held as applicable prospectively in operation and not retrospectively. It has been further held that law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. Every litigant has a vested right in substantive law but no such right exists in procedural law. In this case we do not find either the application of the Act of 19 of 2005 is either retrospective or the petitioner State is entitled to get the benefit of the same, that too after the expiry of the period of limitation, as has been held in the case of Garikapatti Veeraya (supra) spplying the Golden Rules of construction that the essential idea of a legal system is that current law should govern current activities. On the date when the right to file revision accrued to the petitioner State, there was no provision for condonation of delay and when the law came into force on that date no such revision was pending. Therefore, we hold that the effect of the amending Act is neither retrospective nor the petitioner is entitled to get the benefit of the same. Accordingly, we hold that the revision is barred by limitation and the case of the petitioner State would be governed by the law, which was applicable on 31.3.2005. On that date since no such procedure for condonation of delay was available in revision, the petitioner is not entitled to get the delay condoned in the revision. Therefore, I.A. No. 144/06 is dismissed. Accordingly, this revision is also dismissed.