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2004 DIGILAW 317 (GAU)

Nepal Chandra Paul v. State of Tripura

2004-05-06

I.A.ANSARI

body2004
ORDER I.A. Ansari, J. 1. The Department of Power, Government of Tripura, drew high tension electrical line over the land of the petitioner, namely, Nepal Chandra Paul, at village Shanttnagar (Madhyam), West Tripura district, thereby debarring the petitioner from making use of his land. In these circumstances, the petitioner approached the Department of Power seeking compensation in terms of Section 12 of the Indian Electricity Act, 1910 (hereinafter referred to as "the Act of 1910"). As the request for compensation, so made, Jailed, the petitioner came before this. Court with a writ application, which gave rise to Writ Petition (Civil) No. 588 of 1999. By judgment and order, dated 7-8-2000, the said writ application was disposed of directing the respondent No. 2, namely, Secretary to the Government of Tripura, Department of Power, to refer the matter to arbitration in accordance with the provisions of Sections19 and 52 of the Act of 1910. This is clearly reflected from the operative part of the said Judgment and order, which runs as follows : "For the reasons stated above, I dispose of this writ petition with the direction that the petitioner will file an, application along with a certified copy of this judgment and a copy of the writ petition including its annexures before the Secretary to the Government of Tripura, Department of Power, and within one month from the date of receipt of the said documents from the petitioner, the said Secretary will refer the matter for arbitration in accordance with the provisions of Sections 19 and 52 of the Indian Electricity Act, 1910." 2. As per the directions contained in the judgment and order, dated 7-8-2000 aforementioned, the petitioner made an application along with the relevant documents to the respondent No. 2 for appointment of Arbitrator. The Chief Engineer (Electrical), Tripura, vide order, dated 22-9-2000, appointed one Sri R. K. Roy Barman, Superintending Engineer (Elec.), Planning, Department of Power as sole Arbitrator to decide the dispute purportedly in accordance with the provisions of Section 20 of the Arbitration Act. As the appointment of the Arbitrator ought to have been in terms of the provisions of Sec. 19 read with Section 52 of the Act of 1910, the order, dated 22-9-2000 aforementioned, was cancelled by the Chief Engineer (Electrical) by issuing Memorandum, dated 19-10-2000. As the appointment of the Arbitrator ought to have been in terms of the provisions of Sec. 19 read with Section 52 of the Act of 1910, the order, dated 22-9-2000 aforementioned, was cancelled by the Chief Engineer (Electrical) by issuing Memorandum, dated 19-10-2000. In the meanwhile, however, Sri R. K. Roy Barman, the sole Arbitrator, issued a notice to the petitioner, on 30-9-2000, purportedly entering into the proceeding as the sole Arbitrator. As the proceeding was not permissible under law, the petitioner addressed a letter, on 16-10-2000, to the sole Arbitrator with a copy of the same to the Chief Engineer (Electrical) stating to the effect that said R. K. Roy Barman was not competent to act as the sole Arbitrator, for, Section 52 of the Act 1910 provides that the dispute shall be referred to two arbitrators, one to be appointed by each party. As no further appointment has been made by the respondent No. 2 in terms of the order passed by this Court, on 7-8-2000, and the appointment of the arbitrators cannot be made in terms of the provisions of the Act of 2003, the present Misc. Application has been made by the petitioner seeking direction to the respondents to act strictly in accordance with the directions contained in the judgment and order, dated 7-8-2000, passed in W.P. (C) No. 588 of 1999. 3. The respondents have challenged the maintainability of the present. Miscellaneous Application on the ground that the Act of 1910 stands repealed with effect from 10-6-2003 and a new Act, which is hereinafter referred to as "the Act of 2003", has come into force and in such a situation, the provisions of the new Act have come into play and the directions contained in the judgment and order, dated 7-8-2000, passed in W.P. (C) No. 588 of 1999 can no longer be carried out and more so, on the strength of a Miscellaneous Application as has been filed in the present case. 4. I have heard Mr. B. Das, learned senior counsel appearing for the petitioner, assisted by Mrs. S. Roy, and Mr. U.B. Saha, learned senior counsel appearing on behalf of the State-respondents, assisted by Mr. A. Ghosh. 5. A catena of judicial precedents have well-settled that statutes will not generally operates retrospectively unless such an intention is discernible from a particular statute itself. B. Das, learned senior counsel appearing for the petitioner, assisted by Mrs. S. Roy, and Mr. U.B. Saha, learned senior counsel appearing on behalf of the State-respondents, assisted by Mr. A. Ghosh. 5. A catena of judicial precedents have well-settled that statutes will not generally operates retrospectively unless such an intention is discernible from a particular statute itself. Such an intention may be gathered by express provisions made in the enactment or by necessary implications. A close scrutiny of the Act of 2003 reveals that no provisions have been made to show that the appointment of Arbitrator, which is made under the Act of 1910, and/or if an Arbitrator, who stands appointed under the Act of 1910, is in seisin of the proceeding, the same shall become null and void. Viewed from this angle, it is clear that notwithstanding the fact that the Act of 2003 came into force on and from 10-6-2003, all acts done in accordance with the provisions of the Act of 1910 shall remain valid and shall be taken to its logical conclusion. 6. In the light of what has been pointed out above, it is clear that, notwithstanding the fact that the Act of 2003 has come into force on 10-6-2003, the directions issued by this Court on 7-8-2000, in W.P.(C) No. 588 of 1999, still hold good and it is the bounden duty of the respondents to comply with the said directions and the mere fact that before the action could have been taken by the respondents for appointment of arbitrator in terms of the clear directions contained in the judgment and order, dated 7-8-2000 aforementioned, the Act of 2003 has come into force can be of no avail to the respondents. The case of Brij Mohan Singh v. State of Punjab, reported in which is relied upon by the State-respondents, in fact, leads to the conclusion, which I have already reached inasmuch as in the case of Brij Mohan (supra), the Apex Court observed thus : "...........When proceedings stand terminated by final disposal of the writ petition it is not open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of the proceedings would cease to have any meaning." 7. If this principle is not followed there would be confusion and chaos and the finality of the proceedings would cease to have any meaning." 7. From the above observations what transpires is that an order, which has been finally passed in a writ petition, cannot be re-opened. This, in turn, means that when a direction has already been issued by this Court: to appoint Arbitrator in terms of the provisions of Sections 19 and 52 of the Act of 1910, the same cannot be re-opened and questioned on account of the fact that the Act of 2003 has come into force. 8. It has also been agitated, on behalf of the respondents, that the present Misc. Application is not maintainable and the remedy, if any, of the petitioner lies in approaching this Court with a fresh writ application. This submission is not tenable in law for two reasons. I have already pointed out hereinabove that once the proceeding in W.P.(C) No. 588 of 1999 stood concluded by judgment and order, dated 7-8-2000, aforementioned, the respondents have no option but to carry out the directions contained therein notwithstanding the fact that before the directions could have been carried out, the Act of 2003 has come into force. That apart, the present application, as is clear from the case of Food Corporation of India v. S. N. Nagarkar, reported in is basically an application under Order 21 of the Code of Civil Procedure, which embodies the provisions for execution of decrees and orders. There is no bar, in the light of the decision in Food Corporation of India v. S. N. Nagarkar (supra), for a person, who has obtained certain directions in a writ petition, to make Misc. Application in the same writ petition seeking execution of the directions, which have been issued in the writ petition. 9. Because of what has been discussed and pointed out above, the present Miscellaneous Application is maintainable in law and the respondents are bound to carry out the directions contained in the judgment and order, dated 7-8-2000, passed in W.P. (C) No. 588 of 1999 notwithstanding the fact that after the date of passing of the said judgment and order, the Act of 2003 has come into force. 10. In the result and for the foregoing reasons, this Misc. Application succeeds. 10. In the result and for the foregoing reasons, this Misc. Application succeeds. The respondent No. 2 is hereby directed to appoint an Arbitrator in terms of the directions contained in the Judgment and order, dated 7-8-2000, passed in W.P.(C) No. 588 of 1999 within a period of six (6) weeks from today. On account of the fact that sufficient delay has already been caused due to laches on the part of the respondents in carrying out the directions of this Court contained in the judgment and order, dated 7-8-2000, aforementioned, the Arbitrator, to be appointed, shall be directed by the respondent No. 2 to complete the proceeding and submit his Award within a period of six (6) months from the date of appointment of the Arbitrator. 11. The Misc. Application shall accordingly stand disposed of.