Case: B.N. Agarwalla Vs. State Of Orissa

"in which no award has been made by the said date" was not also present in sub-section (7), then the undoubted result of the first expression would be that an arbitration proceeding in which no award had been made up to the midnight between 25-3-1983 and 26-3-1983 would be a pending arbitration proceeding which automatically stood transferred to the Arbitration Tribunal. The question, therefore, is whether the further words used in the second expression in sub-section (7) must lead to a different conclusion. The construction of the first expression being unambiguous, the second expression must be construed harmoniously unless that is not a permissible construction of the expression "by the said date"7. It does appear to us that the second expression, namely, "in which no award has been made by the said date" was further used in sub-section (7) ex abundant cautela to clarify the meaning of pending proceedings by indicating that only those arbitration proceedings in which the award also had been made "by the said date" were excluded from the operation of sub-section (7) and that every other arbitration proceeding including those in which the award alone remained to be made "by the said date" stood transferred to the Arbitration Tribunal. In other words, if the arbitration proceedings had been closed but the arbitrator had not made the award till the midnight between 25-3-1983 and 26-3-1983 when the Act came into force, it was a pending arbitration proceeding governed by sub-section (7). Acceptance of the appellants contention would amount to holding that even though the Act had come into force on the midnight between 25-3-1983 and 26-3-1983, an award made thereafter on 26-3-1983 was not a pending arbitration proceeding on the date of commencement of the Act. Unless meaning of the expression "by the said date" used in sub-section (7) be only that suggested by learned counsel for the appellant, the construction which would harmonies with the meaning of the earlier expression, must be given to the provision 8. We may now consider the meaning of the word by for ascertaining the meaning of the expression "by the said date". Meaning of the word by in some of the dictionaries is "Blacks Law Dictionary (Sixth End.)"Before a certain time; ... not later than a certain time; on or before a certain time;...." The New Shorter Oxford English Dictionary "... On or before, not later than. ..." 9. No doubt the word by means "before a certain time" as well as "on or before a certain time". The question is: whether, the word by in the expression "by the said date" would mean in other words before or on 26-3-1983 in the present context? We have already indicated the meaning of the first expression "pending before any arbitrator on the date of commencement" to mean clearly and unambiguously pending up to the midnight between 25-3-1983 and 26-3-1983, i.e., before commencement of the date 26-3-1983 or at the time of expire of the preceding day i.e. 25-3-1983. The other expression must, therefore, be construed in this context and since the word by means before also, in this context it must be held to mean before and not on the date of commencement of the Act. So construed, the second expression would read as "in which no award has been made before the said date" i.e. in which no award has been made before the date of commencement of the Act, namely, 26-3-1983. This would be the harmonious construction of the two expressions in the provision10. Obviously, an award made on 26-3-1983 cannot be said to be an award made before 26-3-1983 and, therefore, the award in the present case having been made on 26-3-1983 and not before 26-3-1983, the date of commencement of the Act, the arbitrator had no jurisdiction to make the award as it was a pending arbitration proceeding which automatically stood transferred to the Arbitration Tribunal 11. Learned counsel for the appellant has referred to some decisions wherein the word by has been construed to mean that it includes the end or the expire of the date or period indicated. As we have indicated, the meaning of the word by is both before as well as "on or before" and, therefore, the context in which it has been used becomes decisive. Where the context does not exclude the date specified and permits its inclusion, the word by can be construed to mean on and not before; and in that situation, specification of the limit of time by saying "by that date" would require including the specified date up to the expire of that date for computation of the permitted period. P.C. Muthu Chettiar v. Narayanan Chettiar; Sk. Nuroo v. Seth Meghraj Ramkaran Marwadi; T.A. Janakumara Nainar v. Periaswamy Goundan and Dharamraj Mahadeo v. Addl. Dy. Commr. are all decisions in which the context required the word by to be read as on and not before to permit inclusion of the period up to the expiry of the date specified. We have already indicated that the context in the present case excludes the date specified and, therefore, excludes the meaning on and requires the word by to be read as before12. Eastaugh v. Macpherson supports the view we have taken that the meaning of the word by in the phrase "by the date" can mean "on or before the date" or "before the date" depending on the context in which the word by has been used and the meaning to be preferred should be that which it has in the given context. We have indicated that in the context of the provision made in sub-section (7) of Section 41-A meaning of the word by must be before and not on in order to harmonise with the meaning of the earlier part of sub-section (7) and to promote the object of its enactment. The High Courts conclusion that the arbitrator in the present case had no jurisdiction on 26-3-1983 to make the award does not suffer from any infirmity

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The meaning of the second expression should be consistent with that of the first expression since the two could not be used to create a conflict. The purpose of sub-section (7) is to divest the arbitrator of authority to make the award in all such arbitration proceedings which were pending before the arbitrator on the date of commencement of the said Act and to provide for their automatic transfer to the Arbitration Tribunal.The General Clauses Act, 1897 provides that unless the contrary is expressed, an Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. There being no contrary indication in the Act, it must be held that the said Act came into force on the midnight on the expiration of the day preceding its commencement, i.e., the midnight between 25-3-1983 and 26-3-1983. There can be no doubt that if the second expression "in which no award has been made by the said date" was not also present in sub-section (7), then the undoubted result of the first expression would be that an arbitration proceeding in which no award had been made up to the midnight between 25-3-1983 and 26-3-1983 would be a pending arbitration proceeding which automatically stood transferred to the Arbitrationconstruction of the first expression being unambiguous, the second expression must be construed harmoniously unless that is not a permissible construction of the expression "by the said date"7. It does appear to us that the second expression, namely, "in which no award has been made by the said date" was further used in sub-section (7) ex abundant cautela to clarify the meaning of pending proceedings by indicating that only those arbitration proceedings in which the award also had been made "by the said date" were excluded from the operation of sub-section (7) and that every other arbitration proceeding including those in which the award alone remained to be made "by the said date" stood transferred to the Arbitration Tribunal. In other words, if the arbitration proceedings had been closed but the arbitrator had not made the award till the midnight between 25-3-1983 and 26-3-1983 when the Act came into force, it was a pending arbitration proceeding governed by sub-section (7). Acceptance of the appellants contention would amount to holding that even though the Act had come into force on the midnight between 25-3-1983 and 26-3-1983, an award made thereafter on 26-3-1983 was not a pending arbitration proceeding on the date of commencement of the Act. Unless meaning of the expression "by the said date" used in sub-section (7) be only that suggested by learned counsel for the appellant, the construction which would harmonies with the meaning of the earlier expression, must be given to thehave already indicated the meaning of the first expression "pending before any arbitrator on the date of commencement" to mean clearly and unambiguously pending up to the midnight between 25-3-1983 and 26-3-1983, i.e., before commencement of the date 26-3-1983 or at the time of expire of the preceding day i.e. 25-3-1983. The other expression must, therefore, be construed in this context and since the word by means before also, in this context it must be held to mean before and not on the date of commencement of the Act. So construed, the second expression would read as "in which no award has been made before the said date" i.e. in which no award has been made before the date of commencement of the Act, namely, 26-3-1983. This would be the harmonious construction of the two expressions in the provision10. Obviously, an award made on 26-3-1983 cannot be said to be an award made before 26-3-1983 and, therefore, the award in the present case having been made on 26-3-1983 and not before 26-3-1983, the date of commencement of the Act, the arbitrator had no jurisdiction to make the award as it was a pending arbitration proceeding which automatically stood transferred to the Arbitrationwe have indicated, the meaning of the word by is both before as well as "on or before" and, therefore, the context in which it has been used becomes decisive. Where the context does not exclude the date specified and permits its inclusion, the word by can be construed to mean on and not before; and in that situation, specification of the limit of time by saying "by that date" would require including the specified date up to the expire of that date for computation of the permitted period. P.C. Muthu Chettiar v. Narayanan Chettiar; Sk. Nuroo v. Seth Meghraj Ramkaran Marwadi; T.A. Janakumara Nainar v. Periaswamy Goundan and Dharamraj Mahadeo v. Addl. Dy. Commr. are all decisions in which the context required the word by to be read as on and not before to permit inclusion of the period up to the expiry of the date specified. We have already indicated that the context in the present case excludes the date specified and, therefore, excludes the meaning on and requires the word by to be read as before12. Eastaugh v. Macpherson supports the view we have taken that the meaning of the word by in the phrase "by the date" can mean "on or before the date" or "before the date" depending on the context in which the word by has been used and the meaning to be preferred should be that which it has in the given context. We have indicated that in the context of the provision made in sub-section (7) of Section 41-A meaning of the word by must be before and not on in order to harmonise with the meaning of the earlier part of sub-section (7) and to promote the object of its enactment. The High Courts conclusion that the arbitrator in the present case had no jurisdiction on 26-3-1983 to make the award does not suffer from any infirmity