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2001 DIGILAW 131 (HP)

AMRISH KAUSHISH v. UNION OF INDIA

2001-07-03

PREM CHAUHAN, SURINDER SARUP

body2001
ORDER Justice Surinder Sarup (Retd.), President: 1. This order will dispose of the above mentioned two appeals as they are directed against the same order passed by the District Forum. Shimla, Camp at Solan, dated 19.1.2001. By the said order, the learned Forum below has referred the case to an Arbitrator to be appointed by the respondents - Telephone Department as defined under Section 7-B of the Indian Telegraph Act, 1985, within a period of three months. A direction has also been issued that the telephone connection of the appellant will not be disconnected for non-payment of the disputed bills meanwhile. It has also been stipulated therein that the appellant i.e. the original complainant shall pay the amount of the disputed bills as determined by the Arbitrator within a period of 45 days of the date of the award, failing which, it will be open to the respondents Telephone Department to proceed in accordance with the rules. 2. The impugned order, referred to above, has been passed in respect to two complaints filed by the appellant before the learned Forum below. They were with regard to the excessive telephone tariff for the period 6.2.1998 to 15.4.1998 amounting to Rs. 56,224/- and for the period 16.4.1998 to 15.6.1998 amounting to Rs. 22,406/-. According to the complainant i.e. the appellant, he was not engaged in any commercial business and the above mentioned disputed bills were in respect of his residential telephone No. 33264 installed at Parwanoo, Tehsil Kasauli, District Solan. In the more or less similar replies filed to both the complaints, the respondents as opposite parties contested the said complaints on merits and took the plea that the above mentioned bills were as per actual use by the complainant who had both STD and ISD facility in respect of his said telephone. Despite the above respective contentions having been raised in their pleadings by the parties, the impugned order and been passed in a cryptic manner referring the disputed bills for arbitration in the matter referred to above. Reliance for adopting this course has been placed on a decision of the National Consumer Commission reported as Divisional Engineer, Telecom Moradabad v. Virender Kumar, II (1997) CPJ 60 (NC). 3. We have heard the learned Counsel for the parties and we have examined the record. Reliance for adopting this course has been placed on a decision of the National Consumer Commission reported as Divisional Engineer, Telecom Moradabad v. Virender Kumar, II (1997) CPJ 60 (NC). 3. We have heard the learned Counsel for the parties and we have examined the record. At the outset, it has been argued by the learned Counsel for the appellant that in view of the law laid down by the Supreme Court in a very recent decision reported as Skypak Couriers Ltd. v. Tata Chemicals Ltd. AIR 2000 SC 2008. the impugned order is untenable and deserves to be set aside on this short ground. On the other hand, learned Counsel for the respondents has placed reliance on an earlier decision of the Supreme Court reported as Union of India and another v. Jagjit Industries and another, (1999) 4 SCC 506. 4. We have carefully deliberated on the respective contentions of the learned Counsel for the parties. It may be stated here that in view of the law laid down by the Supreme Court in the case of Skypack Couriers Ltd. (supra), we had set aside a similar order of the District Forum in the case of The General manager, Telecom and another v. Baldev Singh Rehalia, Appeal No. 225 of 2000 decided on 22.6.2001. Significantly, the decision of the Supreme Court in the said case involves the interpretation of the provisions of the Consumer Protection Act and it has been laid down therein that the Commissions under the said Act do not have the jurisdiction to refer the dispute pending before it for a consensual adjudication by a third person and then make the said decision of the so-called consensual arbitrator, an order of the Commission itself. It necessarily follows that if the Consumer Disputes Redressal Commissions under the said Act do not have jurisdiction to refer a given dispute for arbitration, then the District Forum also are debarred from doing so. 5. As regards the earlier decision of the Supreme Court on which reliance has been placed by the learned Counsel for the respondents i.e. Union of India and another v. Jagajit Industries and another, a perusal of the same shows that the facts therein are distinguishable. 5. As regards the earlier decision of the Supreme Court on which reliance has been placed by the learned Counsel for the respondents i.e. Union of India and another v. Jagajit Industries and another, a perusal of the same shows that the facts therein are distinguishable. In that case, a dispute arose in respect of the bills submitted by the Telephone Department towards telephone charges of the subscriber therein, was refereed to an Arbitrator under Section 7-B of the Indian Telegraph Act, 1885, as has been done in the present case by the impugned order. In other words, that was not a case in which the concerned parties moved the Consumer Court or the Commission under the Consumer Protection Act and was simply a case of arbitration, which would be governed by the relevant law of arbitration. In these circumstances, we are of the considered view that the respondents cannot derive any benefit from the said decision of the Supreme Court in the case of Union of India v. Jagajit Industries, especially in view of the direct authority on the point in the case of Skypak Couriers Ltd., referred to above. For the same reasons, the decision of the National Consumer Commission, on which reliance has been placed in the impugned order is of no avail in the matter in view of the decision of the Supreme Court in AIR 2000 SC 2008. 6. The matter can be examined from another angle. As rightly urged by the learned Counsel for the appellant, there was no plea in either reply of the respondents to both the complaints of the appellant to the effect that the matter in dispute should be referred to the Arbitrator as contemplated under Section 7-B of the Indian Telephone Act, 1885. This means that the learned Forum below has on its set up a new case altogether, which was not pleaded by the respondents before it. That approach is impermissible in law. 7. For the reasons recorded above, both these appeals are allowed. Consequently, both the complaints of the appellants are remitted back to the District Forum, Shimla, Camp at Solan, for a fresh decision on merits in accordance with law, and in the light of the observations contained above. The record of the case be transmitted forthwith. Thereafter, the learned Forum below shall issued notice to the parties and proceed to decided both the complaints expeditiously. The record of the case be transmitted forthwith. Thereafter, the learned Forum below shall issued notice to the parties and proceed to decided both the complaints expeditiously. These appeals are disposed of accordingly.