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2002 DIGILAW 345 (MAD)

D. Anand v. The Accounts Officer, C/o. Telecom District Engineer, Dharmapuri and others

2002-04-16

E.PADMANABHAN

body2002
ORDER: In this writ petition, the petitioner prays for the issue of a writ of certiorarified mandamus to call for the records on the file of the 5th respondent in its proceedings No.DE/COB/ ARBITRATION/KRI/23510, dated 23.3.2002 and quash the same and further restrain the respondents 1 to 4 from disconnecting telephone service connection bearing No.23510 of Krishnagiri. 2. The petitioner, a subscriber of telephone connection No.23510, Krishnagiri, used to get bimonthly bills in the order of few hundreds of rupees, though he was provided with STD facilities. The petitioner received a bill dated 1.9.1995 for Rs.39,871 in respect of which he raised a protest as abnormal and that he did not use the telephone to the said extent. At the request of the petitioner, his STD was barred on 6.9.1995. The petitioner received another bill dated 1.11.1995 for Rs.25,929 in respect of which he raised a protest as abnormal and suspects some foul play. 3. The petitioner moved the Consumer Disputes Redressal Forum at Dharmapuri against the respondents being aggrieved by the excess metering. The said forum referred the dispute for arbitration by order dated 25.6.1996 under Sec.7-B of the Indian Telegraphs Act. The 5th respondent was appointed as the Arbitrator. 4. Before the 5th respondent, the petitioner raised his case contending that there is no chance at all for such huge amount being billed. the respondent filed their objections contending that during the relevant respondent filed their objections contending that during the relevant period, the petitioner’s sisters got married and there is every possibility of bill shooting upto such a huge amount. 5. After considering the case and counter case and considering the materials placed by either side, the 5th respondent concluded that the bills issued for telephone No.23510, Krishnagiri, area in order and granted a months time for each bill, if not already paid, with interest at 12% giving a months time. Challenging the said award, the present writ petition has been filed. 6. Mr.V. Raghavachari, learned counsel appearing for the petitioner contended that the 5th respondent, Arbitrator, has failed to appreciate the case of the petitioner on merits and there is no material to establish the respondents case that they had found a lady continuously talking on the parallel phone and that the 5th respondent had failed to look into the statements filed before the 5th respondent, which is self-explanatory. It is further contended that the 5th respondent has also failed to note that no proper explanation was given by respondents 1 to 4 as to how the excess metering complained was investigated. Excepting the above contention, no allegation of misconduct on the part of the Arbitrator or any other ground, which would vitiate the award has been pointed out or raised. 7. On a perusal of the award passed by the Arbitrator, the 5th respondent herein, would show that the Arbitrator has analysed the case of the petitioner as well as the respondents, which would show that the Arbitrator had examined the case and counter case of either side and had come to the conclusion that the petitioner is not entitled to any relief and there was every chance for the petitioner using the telephone to the said extent. The Arbitrator also pointed out the inconsistent stand taken by the petitioner, his background and his earnings and came to the right conclusion that the bill is neither excessive nor the meters defective nor there was any fault on the equipment/line. 8. As already pointed out, the petitioner had not pointed out any misconduct on the part of the Arbitrator except stating that the Arbitrator has not assigned any reasons. This cannot be sustained since the Arbitrator has referred to the materials, analysed the materials and had come to a conclusion. 9. This Court finds that the award of the Arbitrator is not only a speaking award, but the Arbitrator had assigned reasons in support of his conclusion. The arbitrator concluded that the telephone had been utilised during the relevant period as there was a marriage function and that in the house not only the petitioner, but also his parents and brother were residing. On a consideration of the award, I do not find any illegality or error apparent on the face of the record warranting interference. 10. I do not find any illegality or error apparent on the face of the record. The Arbitrator has applied his mind to the facts placed by either side and has determined the liability of the petitioner. Even in the affidavit filed in support of the writ petition, there are no allegations of misconduct on the part of the Arbitrator. 10. I do not find any illegality or error apparent on the face of the record. The Arbitrator has applied his mind to the facts placed by either side and has determined the liability of the petitioner. Even in the affidavit filed in support of the writ petition, there are no allegations of misconduct on the part of the Arbitrator. Though the Arbitrator is a statutory Arbitrator appointed by the Government of India, the award of the Arbitrator is not liable to be interfered on the facts of the case under Art.226 of The Constitution. 11. In the present case, it has to be pointed out that this Court, while exercising judicial review in not acting as a Court of Appeal, but within the narrow limits of judicial review it has to consider the correctness and legality of the award. The award being speaking supported by reasons and materials, this is not a fit case where this Court would be justified n interfering with the award of the Arbitrator. I do not find any error apparent on the face of the record warranting interference with the determination by the Arbitrator. 12. The Arbitrator is the sole Judge of the quality as well as the quantity of the evidence and it is not for the Court to take upon itself the task of being a Judge of the evidence before the Arbitrator. The the task of being a Judge of the evidence before the Arbitrator. The award impugned in this writ petition is not liable to be interferred as there is no error apparent on the face of the record nor the Arbitrator has exceeded his jurisdiction. The Arbitrator has assigned reasons in support of his conclusion and it is not open for this Court to reassess. There is no allegation of misconduct and the learned counsel for the petitioner is unable to point out any valid ground or a legal misconduct or error apparent on the face of the record warranting interference with the award of the Arbitrator. It is not as if the award is not passed on any evidence. 13. In the circumstances, this Court holds that the award, which is impugned in this writ petition is not liable to be interfered. 14. It is not as if the award is not passed on any evidence. 13. In the circumstances, this Court holds that the award, which is impugned in this writ petition is not liable to be interfered. 14. Sec.7-B of The Indian Telegraphs Act, 1885, provides that dispute concerning the subscriber by the Central Government and the award of the Arbitrator appointed under Sec.7-B shall be conclusive between the parties in the dispute and the same shall not be questioned in any Court. 15. In Telecom District Engineer, Goa v. V.S. Dempo & Co., (1996)8 S.C.C. 753 , their Lordships of the Supreme Court held that the award of the Arbitrator would be subject to judicial review of the High Court and such a judicial review is permissible only when the Arbitrator fails to assign reasons in support of the conclusion he reaches, be it technical or on factual basis. In that context, the Apex Court held thus: "3. A reading 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 the dispute under this Section. The award of the arbitrator shall be conclusive between the parties to the dispute and its correctness is prohibited from being questioned in a Court of law. It would, otherwise, be clear that any dispute regarding the bulling 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. The arbitrator’s award shall be final. In a recent judgment, considering the provisions of the Act, this Court has explained that when the arbitrator’s award is final, it would be subject to only judicial review. The judicial review by the High Court or this Court would be possible only when the arbitrator gives reasons in support of the conclusions he reaches, be it technical or on factual basis. The judicial review by the High Court or this Court would be possible only when the arbitrator gives reasons in support of the conclusions he reaches, be it technical or on factual basis. The Administrative Instructions issued by the Union of India, that the dispute shall be referred only when there is a reference by the Court is obviously in defiance of the language used in Sec.7-B. The power to refer the dispute has been given by Parliament only with a view to see that the authority acts within reasonable limits and that when the subscriber disputes the correctness of the meter reading or operation of the apparatus etc. instead of litigating the dispute in a civil Court, it should be decided by the arbitrator under Sec.7-B. Obviously, pending proceedings the Act intended to operate without under delay to secure public revenue and also flow of electrical operation envisaged under the Act. Under those circumstances, we are of the view that the High Court is right in directing that the authority under the Act is enjoined to make reference under Sec.7-B without any direction by the Court and if need be it is for the subscriber to approach the Court." 16. In M.L.Jaggi v. Mahanagar Telephones Nigam Ltd., (1996)3 S.C.C. 119 , the Apex Court held thus: "8. It is, thus, settled law that reasons are required to be recorded when it affects the public interest. It is seen that under Sec.7-B, the award is conclusive when the citizen complain that he was not correctly put to bill of the calls he had made and disputed the demand for payment. The Statutory remedy opened to him is one provided under Sec.7-B of the Act. By necessary implication, when the arbitrator decides the dispute under Sec.7-B, he is enjoined to give reasons in support of his decision since it is final and cannot be questioned in a Court of law. The only obvious remedy available to the aggrieved person against the award is judicial review under Art.226 of the Constitution. If the reasons are not given, it would be difficult for the High Court to adJudge as to under what circumstances the arbitrator came to his conclusion that the amount demanded by the Department is correct or the amount disputed by the citizen is unjustified. If the reasons are not given, it would be difficult for the High Court to adJudge as to under what circumstances the arbitrator came to his conclusion that the amount demanded by the Department is correct or the amount disputed by the citizen is unjustified. The reasons would indicate as to how the mind of the arbitrator was applied to the dispute and how he arrived at the decision. The High Court, though does not act in exercising judicial review as a Court of appeal but within narrow limits of judicial review it would consider the correctness and legality of the award. No doubt, as rightly pointed out by Mr.V.R. Reddy, Additional Solicitor General, the questions are technical matters. But nonetheless, the reasons in support of his conclusion should be given. In this case, arbitrator has not given reasons. The award of the arbitrator is set aside and the matter is remitted to the arbitrator to make an award and give reasons in support thereof." 17. However, on facts, this Court do not find any illegality or error apparent on the face of the record. The Arbitrator has applied his mind to the facts placed by either side and has determined the liability of the petitioner. Even in the affidavit filed in support of the writ petition, there are no allegations of misconduct on the part of the Arbitrator. Though the Arbitrator is a statutory Arbitrator appointed by the Government of India, the award of the Arbitrator is not liable to be interfered on the facts of the case. 18. In the circumstances, this writ petition is dismissed. No costs. Consequently, connected W.P.M.P. is also dismissed.