Jammu & Kashmir High Court
Distt. Manager, Telecom vs M.L. Raina on 23 February, 2001
Equivalent citations: AIR2002J&K33, AIR 2002 JAMMU AND KASHMIR 33
ORDER Tejinder Singh Doabia, J.
1. The above two writ petitions dealing with the same subject-matter are disposed of vide this common judgment.
2. A complaint was filed by the complainant-respondent before the Divisional Forum with regard to Telephone No. 30436. It was stated that the bill for Rs. 30,613 is on the higher side. The fact that the petitioner department had allowed a rebate of Rs. 28,600/- and called upon the respondent to deposit the remaining amount was challenged before the Divisional Forum. It was stated that the telephone has no STD facility, and therefore, the question of such a high bill being issued was not justified. The above was the issue in complaint No. 2409, filed before the Divisional Forum. In the second complaint bearing No. 2410, the complaint was with regard to a bill amounting to Rs. 21,650/- for the same telephone. in addition to the prayer that the amount be reduced, a further prayer was made that the complainant be paid compensation. The complaints were entertained. The amount of both the bills was reduced to Rs. 650/- in each bill including rent but excluding trunk calls. The department has been directed to pay compensation to the tune of Rs. 10,000. This is for harrasement and mental agony sufferred by the complainant.
3. The basic argument which has been raised by the learned Counsel for the petitioner is that this was a dispute which could be settled only under Section 7B of the Telegraphs Act. For facility of reference, this section is being reproduced below :
"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 apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred 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."
It is accordingly submitted that respondent, if aggrieved, be directed to agitate the matter before the arbitrator.
4. I am of the opinion that the disputed question of fact as to what should have been the correct amount of the bill is a matter which could be settled by taking resort to Section 7B of the Telegraphs Act. This is because there is a specific remedy provided by the Parliament. The petitioner-department had already reduced the amount. It is not that the department had taken an unreasonable view in the matter. Again, the grant of compensation to the tune of Rs. 10,000 and also directing payment of interest till the date of realisation was not called for. in this situation, the remedy of arbitration is held to be more appropriate.
5. The legal position in this regard be noticed as under ;
5.1. in AIR 1981 Orissa 11, Smt. Makhani Devi Banka v. Union of India, the view expressed is that the legislative intention behind Incorporation of Section 7B referred to above seems to be that the dispute relating to telephone lines, appliances or apparatus between the subscriber and Telephone authorities should be arbitrated upon and finally has been attached to the award. It was accordingly held that Civil Court would have no Jurisdiction in the matter and the parties were directed to take proceedings before the arbitrator. The Delhi High Court in the case of Om Oil and Oilseeds Exchange Limited. Delhi v. Union oflndia, AIR 1977 Delhi 132. while disposing of a petition under Article 226 of the Constitution, observed that the existence of Section 7B in the Indian Telegraphs Act of 1885. cannot be Ignored. However, at the same time, it was observed that in a suitable case the High Court may entertain a petition under Article 226 of the Constitution.
5.2. A Division Bench of Gujarat High Court in the case of Govindbhai Premjibhai Chovatia v. Chief General Manager, Gujarat Telecom Circle, Ahmedabad, AIR 1996 Guj 153. speaking through B. N, Kirpal. C.J., now Judge of the Supreme Court, observed that a dispute with regard to recording of calls would necessarily fall within the ambit of Section 7B of the Indian Telegraphs Act, in doing so, the Gujarat High Court placed reliance on decisions reported as 1964 MPLJ 831, AIR 1982 Delhi 111, AIR 1977 Delhi 132, AIR 1977 Orissa 48, AIR 1981 Orissa 11 and AIR 1980 Ker 201. in AIR 1993 Bom 284, Jutex v. Telecom Divisional Manager, the view expressed is that a dispute with regard to the matters covered by Section 7B is referable to arbitrator and the arbitrator should decide the same after taking note of the evidence which has come on the record.
5.3. in AIR 1993 Andh Pra 19. B. Ramachandra Reddy v. Union of India, the telephone connection was disconnected. This was on the plea that the subscriber was making free calls in collusion with departmental officials. It was observed that this was a matter which should be gone into under Section 7B of the Indian Telegraphs Act. Accordingly, directions were given to the Union of India to appoint an arbitrator. R.N. Misra, J. later Chief Justice of India, in AIR 1977 Orissa 48, has observed that the dispute which is covered by Section 7B is referable to the arbitrator, A civil suit is not maintainable. It was also observed that the procedure as indicated by the Arbitration Act would not apply to such proceedings. in (1996) 8 SCC 753 : (AIR 1996 SC 1545), the Supreme Court of India held that in disputes relating to the billing of the meter and liability on a subscriber thereon when its correctness is disputed, should be referred to the arbitrator. This has to be done by the Union of India. This decision also supports the proposition that disputes are referable to the arbitrator. in AIR 1996 Orissa 102, the view expressed is that the dispute can be referred to the arbitrator. The finality attached to the award so given is open to be scrutinized by the High Court in the exercise of writ jurisdiction.
5.4. A telephone is not to be disconnected if there is a dispute regarding non-payment.
This view was expressed by the Bombay High Court in the case of AIR 1995 Bom 428. V.S. Dempo and Co. Ltd. v. Telelcom District Manager, Goa. It was further observed that the provisions of Section 7B are to be complied with as it is. Its efficacy cannot be watered down by the circulars which may have been issued by the respondents in this regard. Disputes regarding excess telephone billing can be referred to the arbitrator. This view was expressed in the case of AIR 1993 Mad 312. P.T. Bell & Co. v. Union of India.
6. The view expressed in the aforementioned authorities that the disputes with regard to the matters covered by Section 7B should be adjudicated upon by the arbitrator is a view which is the right way of looking at the matter. This is because the arbitrator so appointed can properly appreciate the technical and non-technical matters. As to whether there is any defect in the instrument or in the installation of the same, is a technical matter and as Indicated above. can be more appropriately dealt with by the arbitrator. This technical know-how may not be available with any other authority. The fact that Orissa High Court in the case of Makhnl Devi Banka's case (AIR 1981 Orissa 11) (supra), has gone to the extent of holding that even Civil Courts would not have Jurisdiction would prima facie show that the other remedies arc normally not to be resorted to.
It is accordingly held :
i/ That a dispute relating to telephone lines, appliances or apparatus between the subscriber and telephone authority is to be arbitrated upon by an arbitrator in terms of Section 7B of the Indian Telegraphs Act;
ii/ That the award is final and is subject to challenge under Article 226 of the Constitution of India;
iii/ That in the proceedings before the arbitrator, the procedure as Indicated in the Arbitration Act would not be applicable;
iv/ That when the proceedings are referred to an arbitrator, then the telephone authorities should not insist upon the prior payment.
7. These two petitions as such, are disposed of with a direction that the petitioner-authorities would appoint an arbitrator, who would decide the matter accordingly. Till a decision is taken, the respondent shall de-
posit the amount of the bill as has been directed by the Consumer Forum. The direction regarding payment of compensation shall, however, be not given effect to.
8. Disposed of as such.