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2000 DIGILAW 214 (MP)

Awadh Narayan Shrivastava v. Union of India

2000-02-29

DIPAK MISRA

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JUDGMENT Invoking the revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure, the petitioner has called in question the defensibility of the order dated 15.2.1999, passed by the learned Civil Judge, Class I, Sagar, whereby he has refused to reject the plaint in exercise of power conferred on him under Order 7 Rule 11 of the CPC on the basis of an application moved by the sole defendant-petitioner. Sans unnecessary details, the facts as have been unfolded are that the defendant-petitioner is a subscriber of telephone no. 2884 which is installed at his residence Itwari Ward, Sagar. The Department of Telecommunications sent three consolidated bills amounting to Rs. 45,678/-. The petitioner disputed with regard to the quantum of the bills. The Department, instead of taking any action on the dispute raised by the petitioner, filed Civil Suit No. 20B/1996 before the competent Court for realisation of the aforesaid amount. After the suit was filed, the defendant entered appearance and filed an application under Order 7 Rule 11 of CPC stating that the suit being not maintainable, the plaint should be rejected. The said prayer having been negatived, the present civil revision has been filed. I have heard Mr. Masood Ali, learned counsel for the petitioner and Mr. R.S. Patel, learned standing counsel for the Union of India. Submission of Mr. Ali is that suit of this nature is not maintainable and Department should have taken recourse to section 7B of Indian Telegraph Act, Ig85 (hereinafter referred to as 'the Act'). Per contra, the submission of Mr. Patel is that it was open to the Telecommunications Department to file the suit for realisation of the amount. To appreciate the rival submissions raised at the Bar, it is apposite to refer to section 7B of the Act. It reads as under: "7B. Arbitration of disputes -- (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apart us is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be refewed to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section. (2) The award of the arbitrator appointed under sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court." On an objective reading of the aforesaid provision, it is crystal clear that the dispute relating to excess billing comes within the ambit and sweep of dispute as understood under the aforesaid provision. In the case of Orissa Vegetable Oil Complex Ltd. v. Union of India (AIR 1990 Orissa 51), a Division Bench of the Orissa High Court held as under- "5. That a dispute regarding false metering and excess billing is one covered under section 7B of the Act...." In paragraph 6 of the said decision, the Division Bench further held as under : "6. Section 7B makes a compulsory provision that in the event any dispute arises, inter alia regarding the telephone, between the telegraph authority and the person for whose benefit the telephone apparatus has been provided, it shall be determined by arbitration and shall be referred to an arbitrator appointed by the Central Government either generally or for that specific dispute. In would follow that once a dispute exists between the subscriber and the Department regarding the demand, the dispute cannot be resolved except by way of arbitration in the manner provided for under the section. The provision is comprehensive of all disputes and does not admit of any exception. An investigation made by the department on the dispute raised by a subscriber and the conclusions reached by it regarding the correctness of the dispute are only unilateral actions and do not have the effect of abating the dispute unless such determination by the Department is accepted by the subscriber. From such premises, a further conclusion which necessarily follows is that a demand raised against a subscriber under the bill, if protested, does not achieve a finality and cannot be said to be binding upon the latter until the same has been adjudicated by an arbitrator whose award on the question has been granted a finality under the provisions of the section." In paragraph 7 of the aforesaid decision, it was observed by the Division Bench that to invoke the provisions of section 7B for appointment, it also does not appear that a specific application is necessary to be moved by the subscriber before the telegraph authority for the purpose. Yet, in another decision rendered in the case of Divisional Engineer, Telephones, Cuttack and another v. M/s. Beharilal Shyamswzder (AIR 1993 Orissa 302), wherein G.B. Pattnaik, J. (as his Lordship then was), relying on the Full Bench decision rendered in the case of Magulu Jal v. Shagaban Rai (AIR 1975 Orissa 219), came to hold as under: "Applying the aforesaid principles to the facts and circumstances of the present case, I have no doubt in my mind that the jurisdiction of the civil Court will be ousted only if the dispute would be covered by section 7B(i) of the Indian Telegraph Act, 1885." In this context, I may profitably refer to the decision rendered in the case of Telecom District Manager, Goa and others v. V.S. Dempo & Co. ( AIR 1996 SC 1545 ), where in the Two Judges Bench held as follows : "3. A reading of section 7B thereof would indicate that if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by an arbitrator. Such determination shall be referred to an arbitrator appointed by the Central Government either specifically for the determination of the dispute or generally for the determination of dispute under this section. The award of the arbitrator shall be conclusive between the parties to the dispute and its correctness is prohibited to be questioned in a Court of law. It would, otherwise, be clear that any dispute regarding the billing of the meter and the liability on a subscriber thereon when its correctness is disputed, should be referred to the arbitrator by the Central Government." In view of the aforesaid enunciation of law, there remains no iota of doubt that when the petitioner disputed the bills, the Central Government should have appointed an arbitrator under section 7B of the Act and should not have filed a suit for realisation of the amount. Accordingly, I am of the considered view that the suit filed by the Central Government is absolutely misconcieved. It is further directed that the suit shall not proceed any further and would stand disposed of. Accordingly, I am of the considered view that the suit filed by the Central Government is absolutely misconcieved. It is further directed that the suit shall not proceed any further and would stand disposed of. As far as appointment of arbitrator is concerned, the Central Government shall appoint an arbitrator within a period of three months to decide the dispute keeping in view the law governing the field. It is hereby made clear that pending adjudication, the petitioner shall deposit 40% of the amount due before the Department within a period of two months from today. On deposit of the 40% of amount by the petitioner, the telephone connection shall be revived. The civil revision is accordingly allowed. However, there shall be no order as to costs.