ORDER
Arun Mishra, J.
1. In C.R. No. 1330/2003 question has been referred for consideration of Larger Bench as to applicability of Section 5 of Limitation Act to a revision preferred under Section 19 of M.P. Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'the Act of 1983') beyond period of limitation in the High Court. Revision is barred by limitation. Application has been filed seeking condonation of delay in filing the revision. Correctness of the decision of Division Bench in Nagarpalika Parishad, Morena v. Agrawal Construction Co., 2004(II) MPJR SN 55 taking the view that in the absence of provision in Act of 1983 delay can not be condoned under Section 5 of Limitation Act has been referred for consideration of Larger Bench on 7-5-2004 in the light of decision rendered by the Apex Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5 = AIR 1995 SC 2272. In C.R. No. 633/2003, C.R. No. 1000/2003 and C.R. No. 151/2004, similar question has been referred. After the reference was made, Special Leave Petition arising out of Division Bench decision in the matter of Nagar Palika Parishad, Morena (supra) has been dismissed by the Apex Court as per Order dated 27-8-2004. Thereafter esteemed brother Dipak Misra, J., in C.R. No. 1119/2003 has referred two questions for consideration by Larger Bench which includes the question whether decision of Apex Court of dismissal of SLP is a binding precedent. The two questions referred for consideration are quoted below :--
'(a) Whether the power of High Court for exercise of revisional jurisdiction under Section 19 of M.P. Madhyastham Adhikaran Adhiniyam, 1983 is totally constricted and restricted to a period of three months of the passing of the award which is the limitation prescribed for an aggrieved party or it can exercise such power of revision suo motu within a reasonable period of time that can travel beyond three months ?
(b) Whether the decision rendered in the case of Nagarpalika Parishad v. Agrawal Construction Co., 2004(2) MPJR 374 would be a binding precedent ?'
2. Facts giving rise to the revisions need not be elaborated as only question for consideration is whether delay can be condoned in filing revision in exercise of power under Section 5 of Limitation Act as the revisions have been preferred beyond the period of limitation prescribed under Section 19 of the Act of 1983 which prescribes the limitation for filing revision to be three months from the date of the award by an aggrieved party. Sub-section (1) of Section 19 empowers the High Court to exercise power of revision suo motu at any time or on an application by aggrieved party to be filed within three months.
3. Shri M.L. Jaiswal, Sr. Advocate, Shri V.R. Rao, Shri Sanjay K. Yadav and Shri Mohd. Nasir, learned Counsel appearing on behalf of petitioners have submitted that provision of Limitation Act, 1963 have not been expressly or by implication excluded by the Act of 1983; and that, thus, by virtue of Section 29(2) of Limitation Act, provision of Sections 4 to 24 shall apply, and consequently Section 5 of Limitation Act is also applicable. They have also placed reliance on the scheme of Act of 1983 to contend that, it nowhere excludes the applicability of the Limitation Act, as a different period of limitation has been prescribed than prescribed by the schedule, hence by virtue of Section 3 of Limitation Act, revision filed is subject to Sections 4 to 24 (inclusive) of Limitation Act. Revision is provided under Section 19 of Act of 1983 to the High Court which is a Court as such provision of Limitation Act applies. There is no exclusion by special or local law, that is by the Act of 1983. Decision in Nasiruddin and Ors. v. Sitaram and Ors., (2003) 2 SCC 577, is distinguishable as that is in the context of condonation of default in depositing the rent under the concerned Rent Control Act where power to condone the delay was expressly excluded. It has also been submitted that decision in Mukri Gopalan 's case (supra) is attracted where the Apex Court has held that District Court while hearing the appeal of eviction under Kerala Rent Control Act has the power to condone the delay in filing an appeal filed after expiry of period of limitation prescribed under the Kerala Rent Control Act. It is further submitted that conditions for applicability of Section 29(2) stands satisfied hence this Court should prefer the dictum of Mukri Gopalan 's case (supra) instead of Nasiruddin's case (supra). It is contended that the decision in Nagar Palika Parishad, Morena (supra) rendered by the Apex Court, by dismissal of SLP can not be said to be binding precedent as the scheme of the Act of 1983 has not been considered by Division Bench of this Court while rendering decision or by the Apex Court while dismissing the SLP. It is also submitted that order passed by Supreme Court in Nagar Palika Parishad, Morena (supra) is rendered sub silentio, hence dismissal of SLP can not be said to be binding precedent under Article 141 of the Constitution of India. There is no merger of the order. In absence of merger, it can not be said that dismissal of SLP in Nagar Palika Parishad, Morena constitute binding precedent.
4. Learned Counsel for petitioners have also submitted that even if delay in filing revision by an aggrieved party can not be condoned, that does not preclude the High Court to exercise the suo motu power of revision in appropriate cases; and that as the suo motu power is not restricted by the period of limitation of three months, this Court can exercise the power at any time as provided in Section 19 (1) of the Act of 1983.
5. Shri V.R. Rao, learned Counsel appearing in C.R. No. 1119/2003 on behalf of respondent conceded that even if revision is not preferred within limitation, it is open to this Court to exercise the power of suo motu revision in appropriate cases within reasonable time.
6. Shri K.C. Ghildiyal, learned Counsel appearing on behalf of respondent in C.R. No. 633/2003 has submitted that Section 19 of the Act of 1983 expressly or by necessary implication exclude the applicability of Section 5 of the Limitation Act and, therefore, this Court can not condone the delay.
7. First coming to the Scheme of the Act of 1983, Section 3 provides for Constitution of Arbitration Tribunal for resolving all such disputes or differences pertaining to works contract involving a sum of Rs. 50,000/- or more. Reference to Tribunal is provided under Section 7. Either party to a works contract may refer a dispute in writing to the Tribunal. Section 7-A provides every reference petition shall include whole of the claim. Section 7-B contains the limitation for filing a reference. It is provided that a 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 and the petition to the Tribunal is made within one year from the date of communication of 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. Sub-section (2-A) of Section 7-B provides that the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the dispute arises. Section 9 deals with constitution of Benches, Section 10 deals with regulations for procedure of Tribunal and Benches. Section 16 deals with passing of award, Section 17 provides finality to the award. Section 17-A deals with inherent powers of the Tribunal to make such an order as may be necessary for the ends of justice or to prevent the abuse of the process of the Tribunal. Section 18 provides that award to have force of decree of District Court. Section 20 creates a bar on jurisdiction of Civil Court. Section 22 makes Chairman, Members etc. to be public servants. Action taken in good faith is protected under Section 23. Tribunal in relation to any reference or legal proceeding before it shall be deemed to be Civil Court as per Sub-section (1) of Section 24 and any reference or legal proceeding before it shall be deemed to be judicial proceeding. Tribunal shall have such jurisdiction and may exercise such of powers under Sections 340, 342, 344, 345, 346, 348, 349 and 350 of the Code of Criminal Procedure as provided by Sub-section (2) of Section 24 of Act of 1983.
8. We consider it proper to refer to various decisions referred to at Bar. The Apex Court in Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480, has laid down that in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether, to what extent the nature of the provisions of the special law or the nature of the subject-matter and scheme of the special law exclude the operation of Limitation Act. What the Court has to see is whether the scheme of the special law and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein can not be called in aid to supplement the provisions of the Special Act. Their Lordships held that provision of Section 86 of Representation of People Act gives a peremptory command that High Court to dismiss an election petition which does not comply with the provisions of Section 81, 82 or 117. If for non-compliance with the provisions of Sections 82 and 117 which are mandatory, the election petition has to be dismissed under Section 86(1) the presentation of election petition within the period prescribed in Section 81 would be equally mandatory, the non-compliance with which visits the penalty of the petition being dismissed.
9. In Sakuru v. Tanaji, AIR 1985 SC 1279, it has been held that Limitation Act, 1963 apply only to proceedings in 'Courts' and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts tinder the Codes of Civil or Criminal Procedure. But even in such a situation the relevant special statute may contain an express provision conferring on the Appellate Authority the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of Section 5 of the Limitation Act shall be applicable to such proceedings.
10. In Smt. Lata Kamat v. Vilas, AIR 1989 SC 1477, the Apex Court has held that the schedule in Limitation Act makes no provision for an appeal under Hindu Marriage Act, it is only provided in Section 28(4) of Hindu Marriage Act, thus, the limitation provided in Section 28(4) of Hindu Marriage Act is different from schedule of Limitation Act. According to Section 29(2) of Limitation Act, 'provisions contained in Sections 4 to 24 will be applicable unless they are expressly excluded'. It is clear that provisions of the Hindu Marriage Act do not exclude operation of the provisions of Sections 4 to 24 of Limitation Act. Therefore, it could not be said that these provisions will not be applicable. Therefore, the time required for obtaining the copy of judgment will have to be excluded as provided in Section 12(2) of Limitation Act. The Apex Court has laid down thus :--
'12. The Schedule in the Limitation Act does not provide for an appeal, under the Hindu Marriage Act but it is only provided in clause (4) of Section 28 of the Hindu Marriage Act. Thus the limitation provided in clause (4) of Section 28 is different from the Schedule of the Limitation Act. According to clause (2) of Section 29, provisions contained in Sections 4 to 24 will be applicable unless they are not expressly excluded. It is clear that the provisions of the Act do not exclude operation of provisions of Sections 4 to 24 of the Limitation Act and therefore it could not be said that these provisions will not be applicable. It is therefore, clear that to an appeal under Section 28 of the Hindu Marriage Act, provisions contained in Section 12 clause (2) will be applicable therefore, the time required for obtaining copies of the judgment will have to be excluded for computing the period of limitation for appeal. A Division Bench of Delhi High Court in Chandra Dev Chadha's case (AIR 1979 Delhi 22 at pp. 24 and 25) held as under :--
'The Hindu Marriage Act is a special law. That this 'special law' prescribes 'for an appeal a period of limitation' is also evident. The period of limitation is 30 days. It is a period different from that prescribed in the First Schedule to the Limitation Act, 1963. But when we turn to the First Schedule we find there is no provision in First Schedule for an appeal against the decree or order passed under the Hindu Marriage Act. Now it has been held that the test of a 'prescription of a period of limitation different from the period prescribed by the First Schedule' as laid down in Section 29(2) Limitation Act, 1963 is satisfied even in a case where a difference between the special law and Limitation Act arose by omissions to provide for a limitation to a particular proceeding under the Limitation Act, see Canara Bank, Bombay v. Warden Insurance Co. Ltd., Bombay, AIR 1953 Bom 35 (supra) approved by the Supreme Court in Vidyacharan Shukla v. Khubchand, AIR 1964 SC 1099 (1102).
Once the test is satisfied the provisions of Sections 3, 4 to 24, Limitation Act, 1963 would at once apply to the special law. The result is that the Court hearing the appeal from the decree or order passed under the Hindu Marriage Act would under Section 3 of the Limitation Act have power to dismiss the appeal if made after the period of limitation of 30 days prescribed therefor by the special law. Similarly under Section 5 for sufficient cause it will have the power to condone delay. Likewise under Section 12(2) the time spent in obtaining a certified copy of the decree or order appealed from will be excluded. If it is so, Section 12(2) of the Limitation Act is attracted, and the appellants in all the three appeals will be entitled to exclude the time taken by them for obtaining certified copy of the decree and order. The appeals, are, therefore, within time.'
Similar is the view taken by the Calcutta High Court in Smt. Sipra Dey's case (AIR 1988 Cal 28) and also the M.P. High Court in Kantibai's case (AIR 1978 Madh Pra 245). It is therefore, clear that the contention advanced by the learned Counsel for the respondent on the basis of Limitation Act also is of no substance.'
11. In State of W.B. and Ors. v. Kartick Chandra Das and Ors., (1996) 5 SCC 342 = AIR 1996 SC 2437, the Apex Court has considered Section 29 of the Limitation Act which envisages savings in Sub-section (2). Their Lordships held that provision of Section 5 of the Limitation Act is attracted to letters patent appeal against an order of Single Judge passed in contempt proceedings. As there is no express exclusion of Sections 4 to 24 of Limitation Act by a special or local law, thus, on the strength of Section 29(2) of Limitation Act, Their Lordships held that Section 5 of Limitation Act becomes applicable to appeals filed against the order of Single Judge. Their Lordships held thus :--
'4. It is not in dispute that under Section 19 of the Contempt of Courts Act, 1971 and appeal would lie to the Division Bench and limitation of 30 days from the date of the order has been prescribed subject to the exclusion of the time taken for obtaining the certified copy thereof. We have seen that the Appellate Side Rules of the Calcutta High Court applicable to the area other than the city of Calcutta had not expressly excluded the application of the limitation under the Limitation Act.
5. The learned Counsel for the respondent sought to contend that by operation of Rule 3 of Chapter 8 of the Appellate side Rules under the Letters Patent the memorandum of appeal drawn up under Order 41 Rule 1, CPC requires to be complied with as envisaged thereunder since it had not been provided with any limitation. The Division Bench was, therefore, right in holding that the Limitation Act was not extended for an appeal filed under Clause 15 of the Letters Patent against the order passed by the learned Single Judge under the provisions of the Contempt of Courts Act. It is seen that under the Contempt of Courts Act, the High Court has framed the Rules. Rule 35 envisages that:--
'35. In respect of appeals from the orders of any Judge or Bench of the original side the rules of the original side relating to appeals and in respect of appeals from the order of any Judge or Bench of the appellate side, the rules of the appellate side shall apply mutatis mutandis.'Therefore, for the appeals filed under Clause 15 of the Letters Patent against the order of learned Single Judge for the contempt proceedings by necessary consequences, the procedure prescribed on the appellate side would also be applicable and followed.
7. In consequence, by operation of Section 29(2) read with Section 3 of the Limitation Act, limitation stands prescribed as a special law under Section 19 of the Contempt of Courts Act and limitation in filing Letters Patent Appeal stands attracted. In consequence, Sections 4 to 24 of the Limitation Act stands attracted to Letters Patent Appeal insofar as and to the extent to which they are not expressly excluded either by special or local law. Since the rules made on the appellate side, either for entertaining the appeals under Clause 15 of the Letters Patent or appeals arising under the Contempt of Courts, had not expressly excluded, Section 5 of the Limitation Act becomes applicable. We hold that Section 5 of the Limitation Act does apply to the appeals filed against the order of learned Single Judge for the enforcement by way of a contempt. The High Court, therefore, was not right in holding that Section 5 of the Limitation Act does not apply. The delay stands condoned. Since the High Court had not dealt with the matter on merits, we decline to express any opinion on merits. The case stands remitted to the Division Bench for decision on merits.'
12. In Shyamcharan Sharma v. Dharamdas, (1980) 2 SCC 151 = AIR 1980 SC 587, while considering the import of Sub-sections (1), (5) and (6) of Section 13 of M.P. Accommodation Control Act, the Apex Court held that Court has power under Sub-section (6) to condone the delay in deposit of rent having become due after institution of suit for eviction.
13. In Mukri Gopalan's case (supra) question fell for determination to the effect that whether Appellate Authority constituted under Section 18 of Kerala Buildings (Lease and Rent Control) Act, 1965 has the power to condone the delay in filing of appeal before it under the said section. An order was passed by the Appellate Authority dismissing the appeal as time barred holding that an application for condonation of delay was not maintainable. The Kerala High Court had taken the view that Appellate Authority has no such power and dismissed the revision application. The Apex Court held that the Appellate Authority under Section 18 of Kerala Buildings (Lease and Rent Control) Act, 1965 acts as a Court and not a persona designata, delay can be condoned under Section 5 of Limitation Act as the two requirements for attracting applicability of Section 29 are satisfied, that is (i) different period of limitation being prescribed under the local law; and (ii) there is no express exclusion of provisions of Limitation Act. While considering Section 29(2) of Limitation Act, Their Lordships in Mukri Gopalan 's case (supra) laid down thus :--
'9. If the aforesaid two requirements are satisfied the consequences contemplated by Section 29(2) would automatically follows. These consequences are as under :--
(i) In such a case Section 3 of the Limitation Act would apply as if the period prescribed by the special or local law was the period prescribed by the Schedule.
(ii) For determining any period of limitation prescribed by such special or local law for a suit, appeal or application all the provisions containing Sections 4 to 24 (inclusive) would apply insofar as and to the extent to which they are not expressly excluded by such special or local law.'
The Apex Court has further held that Section 18 of the Kerala Act satisfies the requirement of applicability of Section 29(2) of Limitation Act. The Apex Court has considered the question thus :--
'10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the Appellate Authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It can not be disputed that Kerala Rent Act is a special Act or a local law. It also can not be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the Schedule as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the Appellate Authority under Section 18 of the Rent Act or in other words it prescribes nil period of limitation for such an appeal. It is now well settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099: (1964) 6 SCR 129, when the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law prescribes a time-limit for it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period, while the former permits the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.
11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before Appellate Authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that Section, all the provisions of Sections 4 to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before Appellate Authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. That was the view taken by the minority decision of the learned Single Judge of Kerala High Court in Jokkim Fernandez v. Amina Kunhi Umma. The majority did not agree on account of its wrong supposition that Appellate Authority functioning under Section 18 of the Rent Act is a persona designata. Once that presumption is found to be erroneous as discussed by us earlier, it becomes at once clear that minority view in the said decision was the correct view and the majority view was an erroneous view.'
It is clear from the decision of Apex Court in Mukri Gopalan (supra) that where there is a provision for period of limitation under any special or local law in connection with any suit, appeal or application, the said prescription of period of limitation under some local law or special law becomes different from the period prescribed by the Schedule to the Limitation Act as the Schedule to Limitation Act does not contain any period of limitation for such special or local Act. In such a case if there is no express exclusion in the local or special law, then Sections 4 to 24 of Limitation Act shall apply.
14. In order to appreciate rival submissions it is necessary to consider ambit of Section 19 of Act of 1983 which provides for revision and its limitation. The same is quoted below :--
'19. High Court's power of revision.-- (1) The High Court may suo motu at any time or on an application 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.
(2) If it appears to the High Court that the Tribunal--
(a) has exercised a jurisdiction not vested in it by law; or
(b) has failed to exercise a jurisdiction so vested; or
(c) has acted in exercise of its jurisdiction illegally, or with material irregularity; or
(d) has misconducted itself or the proceedings; or
(e) has made an award which is invalid or has been improperly procured by any party to the proceedings.
the High Court may make such order in the case as it thinks fit.
(3) The High Court shall in deciding any revision under this section exercise the same powers and follow the same procedure as far as may be, as it does in deciding a revision under Section 115 of the Code of Civil Procedure, 1908 (No. 5 of 1908).
(4) The High Court shall cause a copy of its order in revision to be certified to the Tribunal.'
An examination of Section 19 shows that it prescribes a period of limitation. The same becomes different period of limitation as contemplated under Section 29 of Limitation Act as there is no period of limitation prescribed in the Schedule to the Limitation Act for a revision to be filed under the Act of 1983. Where there is no provision in the Schedule to the Limitation Act for a particular suit, appeal or application, in a situation identical with that for which the special law provides the test of prescription of a period of limitation different from the period prescribed under the Schedule is satisfied as laid down by the Apex Court in Kaushalya Rani v. Gopal Singh, AIR 1964 SC 260, in Vidyacharan Shukla v. Khub Chand Baghel and Ors., AIR 1964 SC 1099 and in aforesaid decisions. In Mukri Gopalan's case (supra), the Apex Court has held that the Appellate Authority under Kerala Buildings (Lease and Rent Control) Act, acts as a Court. The limitation prescribed under Section 18 governing appeals by aggrieved party will be computed keeping in view the provisions of Sections 4 to 24 of the Limitation Act, 1963. Such proceedings will attract Section 29(2) of Limitation Act and consequently Section 5 of Limitation Act will also he applicable, Appellate Authority will have ample jurisdiction to consider the question whether delay in filing such appeals could be condoned on sufficient cause being made out for the delay in filing such appeals. The decision of the High Court was set aside.
15. Section 29(2) of Limitation Act is quoted below :--
'29. Savings.--(1)....
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.'
16. As mentioned above, the requirement to attract Section 29 of Limitation Act that special or local law prescribes limitation for suit, appeal or application, that is to be treated a different period from the period prescribed by the Schedule, as there is omission in the Schedule with respect to the limitation for revision under Section 19 of the Act of 1983, one of requirements stands satisfied. Yet another aspect may be noted. Revision filed under Section 19 of the Act of 1983 can be filed 'within a period of three months' and reference to the month shall mean a month reckoned according to British Calendar as provided in Sub-section (35) of Section 3 of General Clauses Act, 1897. This is different from the period prescribed for revisions in the Limitation Act, which is 90 days. Further requirement of Section 29 is that Sections 4 to 24 shall not apply in case they are expressly excluded by special or local law. Section 19 quoted above does not contain a provision akin to the Representation of People Act which excludes the power of the Court to condone delay. Section 86 of the Representation of People Act gives peremptory command that the High Court shall dismiss an election petition which is not in conformity with the provisions of Section 81, 82 or 117, provisions of Sections 82 and 117 of Representation of People Act are mandatory, the election petition has to be dismissed under Section 86(1), the presentation of election petition within prescribed period in Section 81 would be equally mandatory, the non-compliance of which visits the penalty of petition being dismissed. In the Act of 1983 there is no such provision akin to Section 86 of Representation of People Act. Section 81 of Representation of People Act provides limitation of 45 days, the scheme of the Act of 1983 does not exclude the provision of Sections 4 to 24 of Limitation Act by express reference nor it follows that scheme of Act of 1983 excludes their operation so far as filing of revision under Section 19 of the Act of 1983 is concerned, as per test laid down by the Apex Court in Hukumdev Narain Yadav (supra).
17. But a Division Bench of this Court, at Gwalior in Nagar Palika Parishad, Morena v. Agrawal Construction Company, C.R. No. 155/2003, decided on 25-8-2003, took the view that Section 5 of Limitation Act was inapplicable to a revision filed by an aggrieved party under Section 19 of Act of 1983. The said decision is extracted below :--
'Petitioner by Shri D.K. Katare, Advocate. Respondent by Shri D.P.S. Bhadoriya and Shri Kamal Jain, Advocates.
Heard on M.C.P. No. 795/2003. This application is under Section 5 of the Limitation Act. Preliminary objection has been raised by respondent that provisions under Section 5 of Limitation Act are not applicable to the proceedings arising out of Madhya Pradesh Madhyastham Adhikaran Adhiniyam. In support of their contention Counsel for respondent referred a case of Nasiruddin and Ors. v. Sitaram and Ors., reported in (2003) 2 SCC 577, and submitted that this being provisions of Limitation Act are not applicable. The Act has not provided any provision for condoning delay in filing the revision.
Counsel for the petitioner submitted that since the powers under Section 115 of the Code of Civil Procedure are conferred upon the High Court, therefore, provisions of Limitation Act will be applicable to the present case. Section 19 of the Adhiniyam clearly specifies that the revision shall be filed within three months from the date of passing of the award but this section does not provide for extension of time or condoning the delay in filing the revision filed beyond the period of three months. In the absence of any specific provision for condoning delay the delay in filing revision can not be condoned.
The petitioner acquired knowledge of the award on 10- 4-2003 after notice of execution was received. Thereafter they approached the Tribunal for certified copy on 5-5-2003 and received the certified copy on the same day and the revision is filed on 30-5-2003. Thus, the petitioner has not explained the delay between 10-4-2003 to 5-5-2003 and from 5-5-2003 till 30-5- 2003. As such in the application sufficient cause has also not been shown. Even otherwise since provisions of Limitation Act are not applicable to the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, the application is dismissed.
Consequently, M.C.P. No. 794/2003 is also dismissed and the Civil Revision is dismissed as barred by limitation.'
18. The decision of Supreme Court in Nasiruddin and Ors. v. Sitaram and Ors. (supra) relied on by the Division Bench in Nagar Palika Parishad (supra), considered the question whether delay in deposit of rent by tenant under Section 13(4) of Rajasthan Premises Control of Rent & Eviction Act, 1950 could be condoned. The Apex Court has held that Section 5 of Limitation Act is not applicable where there is default in depositing the rent by tenant under Section 13(4) of the said Act. The Apex Court has laid down thus:--
'41. In that view of the matter it must be held that in absence of such provisions in the present Act the Court did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent.
42. Coming to the second question, we are of the view that Section 5 of the Limitation Act, 1963 is not applicable where there is a default in depositing the rent by the tenant under Section 13 (4) of the Act.
43. It is true that the Rajasthan Act does not expressly exclude the application of the Limitation Act. But Section 5 in its terms is not applicable to wherever there is a default in depositing the rent by the tenant.'
19. The decision of Gwalior Bench of this Court has met the approval by the Apex Court on 27-8-2004 in Nagarpalika Parishad, Morena v. Agrawal Construction Co. (supra), following order has been passed by the Apex Court :--
'Heard Mr. Sushil Kumar Jain, learned Counsel for the petitioner at length.
In our view, there is no infirmity in the impugned judgment. The authority in the case of Nasiruddin and Ors. v. Sita Ram Agarwal, reported in (2003) 2 SCC 577 has been correctly followed. Same view has also been taken by this Court in the case of Union of India v. Popular Construction Co., reported in (2001) 8 SCC 470 : 2001 Arb.W.L.J. 600 (SC). The Special Leave Petition stands dismissed with no order as to costs.'
20. It is clear that Apex Court has clearly affirmed the decision of this Court, it has been found that there is no infirmity in the order of Division Bench of this Court in Nagarpalika Parishad, Morena (supra) and the authority in case of Nasiruddin and Ors. v. Sitaram Agarwal (supra) has been correctly followed. The Apex Court has also relied upon decision in Union of India v. Popular Construction Co., (2001) 8 SCC 470 : 2001 Arb.W.L.J. 600 (SC), in which it has been laid down by the Apex Court in the context of Sections 34(3) and 34(1) of Arbitration and Conciliation Act, 1996 that if an application challenging award has been filed beyond period of limitation mentioned in Section 34(3), it would not be an application in accordance with Sub-section (3) as required under Section 34(1). The Apex Court has emphasized that crucial words are 'but not thereafter' used in proviso to Sub-section (3) of Section 34 which has the effect of express exclusion of provision of Limitation Act within the meaning of Section 29(2) of Limitation Act. The Apex Court has held that if such exclusion is not there and if only different period of limitation is prescribed, that would not have been sufficient to exclude Sections 4 to 24 of Limitation Act. The Apex Court has considered the questions thus:--
'7. There is no dispute that the 1996 Act is a 'special law' and that Section 34 provides for a period of limitation different from that prescribed under the Limitation Act. The question then is--is such exclusion expressed in Section 34 of 1996 Act The relevant extract of Section 34 reads :--
'34. Application of setting aside arbitral award.-- (1) * * *
(2) *** *** *** *** ***
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the Arbitral Tribunal :
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.8. Had the proviso to Section 34 merely provided for a period within which the Court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because 'mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5.
10. This decision recognises that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. It is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. As has been said in Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133 (SCC. p. 146, Para 17):-
'If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein can not be called in aid to supplement the provisions of the Act.'12. As far as the language of Section 34 of the 1996 Act is concerned the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result.'
The petitioners' Counsel has submitted that word 'but not thereafter' has not been mentioned after three months period of limitation in Section 19 of Act of 1983 and on the contrary High Court is given power to exercise suo motu revisional jurisdiction at any point of time and that would mean that provision of Limitation Act from 4 to 24 have not been excluded for the purpose of filing revision under Section 19 of Act of 1983. It has been further submitted by the petitioners that reasoning employed in Nagarpalika Parishad, Morena v. Agrawal Construction Co. (supra) that there is no provision in Act of 1983 making of Limitation Act applicable is contrary to the dictum of the Apex Court in Union of India v. Popular Construction Co. (supra). Their submission is that there need not be any such provision, exclusion must be from the section which has been enacted for providing period of limitation.
21. It is clear that Apex Court has given the reasons for affirming the order and dismissing Special Leave Petition in Nagarpalika Parishad, Morena v. Agrawal Construction Co. (supra) speaking order has been passed while refusing to grant the leave to file appeal. Question for consideration is whether the order passed by the Supreme Court of dismissal of Special Leave Petition is binding as precedent ?
22. It is settled proposition of law that dismissal of Special Leave Petition by the Apex Court 'without giving reasons' can not be said to be binding precedent as there is no merger of the impugned order on dismissal of the Special Leave Petition. The Apex Court in S. Shanmugavel Nadar v. State of T.N. and Anr., (2002) 8 SCC 361, has laid down that summary dismissal of SLP on technical ground of a High Court judgment under appeal can not result into merger of the impugned order into the order of Supreme Court as regards the statement of law or the reasons recorded by the Division Bench of the High Court in its impugned order. The Apex Court has held that content of the order of the Supreme Court clearly reveal that neither the merits of the order of High Court or the reasons recorded therein or the law laid down thereby were gone into nor could they have been gone into. For a declaration of law there should be a speech, i. e., a speaking order. It is the speech, express or necessarily implied, which only is the declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Similar is the view taken by the Apex Court in Saurashtra Oil Mills Assn., Gujrat v. State of Gujrat and Anr., (2002) 3 SCC 202. Their Lordships have considered the effect of dismissal of Special Leave Petition by non-speaking order, it was held that dismissal simpliciter in which permission to file an appeal is not granted would not be a declaration of law by Supreme Court. It would not attract doctrine of merger and would not be a binding precedent. In Collector of Customs, Bombay v. Elephanta Oil and Industries Ltd., Bombay, AIR 2003 SC 1455, it was held that order dismissing the petition without assigning any reason would not constitute a binding precedent. In Batiarani Gramiya Bank v. Pallab Kumar and Ors., (2004) 9 SCC 100, the Apex Court has laid down that if reasons have not been assigned, a non-speaking order has been passed while dismissing SLP, it does not amount to acceptance of correctness of the decision sought to be appealed against, such order does not constitute law laid down by the Apex Court for the purpose of Article 141 of Constitution. In Hari Singh v. State of Haryana, (1993) 3 SCC 114, the Apex Court has laid down that doctrine of precedent does not apply to an order rejecting SLP against conviction of several accused for similar offence committed in same occurrence merely because SLP filed by the co-accused was rejected while that of accused-appellant was granted. Supreme Court would not be bound to dismiss the appeal of other accused-appellant if on merits it considers them to be entitled to acquittal or conviction for a different offence.
23. Reliance has also been placed by the petitioners on the decision of Apex Court in State of U.P. and Anr. v. Synthetics and Chemicals Ltd. and Anr., (1991) 4 SCC 139 to submit that decision of Apex Court is per incuriam and sub-silentio, hence, can not be treated as precedent. It is submitted that the decision in Nagarpalika Parishad, Morena (supra) is not founded on reasons nor proceeding on consideration of issue can not be deemed as law declared. Learned Counsel have also relied upon decision of Apex Court in Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101, in which the Apex Court has held that decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute, the order in Jamna Das case was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, the High Court's decision based on Jamna Das case was not upheld because it was wrong in principle and could not be justified by the terms of the relevant provisions. It was passed, in sub silentio.
24. In our opinion, the order passed by Supreme Court in Nagarpalika Parishad, Morena (supra) is a speaking order, gives reasons for refusing to grant leave, thus, statement of law contained in the order is a declaration of law by Supreme Court within the meaning of Article 141 of Constitution of India. The findings recorded by Supreme Court bind the Court in any proceeding subsequent thereto. It is what is required of judicial discipline. Further it is well settled that a High Court can not declare that a decision of Supreme Court is per incuriam.
25. The Apex Court in Kunhayammed and Ors. v. State of Kerala and Anr., AIR 2000 SC 2587 held :--
'43. We may look at the issue from another angle. The Supreme Court can not and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court can not be reversed or modified at the SLP stage obviously that order can not also be affirmed at the SLP stage.
To sum up our conclusions are :--
(i) Where an appeal or revision is provided against an order passed by a Court, Tribunal or any other Authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability or merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, Tribunal or Authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, Tribunal or Authority below has stood merged in the order of Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule (1) of Order 47 of the CPC.'
In view of above, we find that the decision rendered by the Apex Court in Nagarpalika Parishad, Morena (supra) is a binding precedent as per Article 141 of Constitution, it requires observance.
26. The last question remains for consideration is whether the High Court can exercise suo motu power of revisional jurisdiction within a period of three months of passing of award which is the limitation prescribed for an aggrieved party or power of suo motu revision to be exercised within a reasonable period of time.
27. It is provided in Section 19 that this Court can exercise the power at any time, thus, the power to be exercised suo motu is not constricted and restricted to a period of three months from passing of award. 'Any time' also does not mean that power can be exercised after enormous delay, it has to be exercised within reasonable time. The Apex Court in The State of Gujrat v. Patil Raghav Natha and Ors., (1969) 2 SCC 187, has held that suo motu power must be exercised in reasonable time, length of reasonable time must be determined by the fact of the case and the nature of the order which is being revised. The Apex Court has laid down thus :--
'11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.'
28. In Usha Devi and Ors. v. State of M.P. and Ors., 1990 MPLJ 353, this Court has held that suo motu power under Section 50 of the M.P. Land Revenue Code, 1959 has to be exercised within reasonable time though limitation has not been prescribed in exercise of such powers. The term 'at any time' has been considered which has been held to be 'reasonable time' in reference to the facts and circumstances of the case and the nature of the order. This Court has laid down thus :--
'17. We have, however, no hesitation in accepting the submission of Shri Bhargava that power of revision suo motu contemplated under Section 42 of the Act can be, and has to be, exercised within a reasonable time and that is the meaning to be attributed to the term 'at any time' used therein. Counsel's reliance on State of Gujrat v. P. Raghav, AIR 1969 SC 1297, in support of that contention is indeed well- merited. There can be no dispute with that proposition because of the constitutional imperative requiring statutory authorities to act reasonably and not arbitrarily. However, what should be the reasonable time for exercise of the power, as held in P. Raghav (supra), must be determined with reference to the facts and circumstances of the case and the nature of the order which is being revised.'
29. In Sitaram v. State of M.P., (1999) 1 MPLJ 178, this Court has laid down thus :--
'7. From the aforesaid, it is categorically clear that the suo motu power has to be exercised within a reasonable time and what would be reasonable time has to be determined in individual cases. Similar view was taken in case of Murarilal and Ors. v. State of M.P. and Ors., 1994 MPLJ 378, I may hasten to add here that in the aforesaid case, Their Lordships did not interfere with the order as jurisdiction was invoked after six years on the ground that the matter came to light before a short period of such invocation. Thus, the effect of the aforesaid decision is that exercise of power has to be done within a reasonable period. Shri Agrawal has also drawn my attention to the decision wherein Their Lordships of the Supreme Court dealing with Section 50 of the Code, held that suo motu power of revision has to be exercised within a reasonable time and while so holding, Their Lordships opined that even one year may be unreasonable. I may quote with profit:--'This Court in connection with other statutory provisions in the case of State of Gujrat v. Patil Raghavnatha, (1969) 2 SCC 187, and in the case of Ramchand v. Union of India, (1994) 1 SCC 44, has impressed that where no time limit is prescribed for exercise of a power under a statute, it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. We are satisfied that in the facts and circumstances of the present case, the suo motu power under Section 84-C of the Act was not exercised by the Mamlatdar within a reasonable time.'
30. In our opinion, no specific time limit can be fixed for exercising the suo motu revisional power under Section 19 of Act of 1983, the power has to be exercised within reasonable time which depends upon the nature of the order to be revised and other facts and circumstances of the case.
31. We, thus, answer the questions referred thus :--
'(i) The decision rendered in Nagarpalika Parishad, Morena v. Agrawal construction Co., 2004 (II) MPJR 374, by the Apex Court while dismissing the special leave petition is a binding precedent. The High Court can not condone the delay if revision is preferred by an aggrieved party beyond a period of three months under Section 19 of the Act of 1983.
(ii) It is, however, open to the High Court to exercise suo motu revisional jurisdiction under Section 19 of M.P. Madhyastham Adhikaran Adhiniyam, 1983 even beyond period of three months of passing of award. However, such power has to be exercised within reasonable time considering the facts and circumstances of the case and the nature of the order which is being revised. Length of the reasonable time must be determined by the facts of the case and nature of the order which is being revised. While rejecting the revision petition filed by an aggrieved party as barred by limitation, if the circumstances so warrant, the High Court may decide to exercise the power of revision suo motu and call for the record and award from the Tribunal.'
32. Reference is answered accordingly. Let revisions be placed before the appropriate Bench for consideration in accordance with law.