Patna High Court
Narendra Narayan Singh vs State Of Bihar And Ors. on 17 November, 2005
Equivalent citations: 2006(3)BLJR2401
Author: Chandramauli Kumar Prasad
Bench: Chandramauli Kumar Prasad
JUDGMENT Chandramauli Kumar Prasad, J.
1. The question which falls for determination in the present case is as to whether telephone dues of the Bharat Sanchar Nigam Limited, can be recovered as a public demand under the provisions of Bihar and Orissa Public Demands Recovery Act, 1914.
2. Facts necessary for the decision of the aforesaid question lie in a narrow compass :-
3. Petitioner happens to be the subscriber of Telephone No. 52030, linked with Jai Nagar Telephone Exchange. Complaining demand of charges more than he was liable to pay for the use of the telephone, petitioner filed Consumer Case No. 7 of 1993 before the District Consumer Forum, Madhubani constituted under the Consumer Protection Act. The District Consumer Forum by its order dated 6th of August, 1998 directed the competent authority to appoint an Arbitrator under Section 7-B of the Indian Telegraph Act for adjudication of the dispute. In the light of the said order, Deputy General Manager (Administration) of the Bharat Sanchar Nigam Limited, hereinafter referred to as the Sanchar Nigam, was appointed as an Arbitrator. The Arbitrator so appointed by its award dated 23rd of December, 2000 rejected the claim of the petitioner that the bill raised is excessive and observed that the bill has been issued as per calls made by the petitioner.
4. After the award, the Divisional Engineer of the Sanchar Nigam Ltd. sent requisition to the Certificate Officer for realisation of a sum of Rs. 1, 01,393.00 as a public demand as provided under Section 5 of the Bihar and Orissa Public Demands Recovery Act, 1914, hereinafter referred to as the 'Act'. On receipt of the aforesaid requisition, the Certificate Officer signed the certificate as provided under Section 6 of the Act and issued notice (Annexure 1) to the petitioner along-with the certificate as provided under Section 7 of the Act. Petitioner aggrieved by the same has preferred this writ application and his prayer is to quash the certificate proceeding initiated against him for the realisation of the telephone dues as also the notice.
5. Separate counter affidavits have been filed, one by respondent Nos. 1 and 3 i.e. State of Bihar and District Certificate Officer and Anr. by respondent No. 3, the Divisional Engineer of the Sanchar Nigam. Plea of respondent No. 2 in the counter affidavit is that the certificate proceeding has been initiated for recovery of the amount in terms of the award given by the Arbitrator appointed under Section 7-B of the Indian Telegraph Act by the order of the District Consumer Forum and, as such, the proceeding cannot be said to be illegal. Contention of the respondent Nos. 1 and 3 in the counter affidavit is that the demand in question comes within the category of public demand and is covered by Entry Nos. 4 and 15 of Schedule I of the Act.
6. I have heard Mr. Ashutosh Kumar for the petitioner, JC to GP I for the State and Mrs. Renuka Sharma No. 2 for respondent No. 2.
The issue of excessive bill was a subject matter of an award rendered by the Arbitrator appointed under Section 7-B of the Indian Telegraph Act. Section 7-B of the aforesaid Act reads as follows :-
7-B. 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 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, 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.
7. True it is that Section 7-B(1) confers power on the Arbitrator to determine the dispute and Sub-section (2) thereof makes the award of the Arbitrator conclusive between the party which ordinarily cannot be questioned in any Court subject of course to well-known exception. But the question is as to whether award so rendered and the amount so determined can be elevated to the status of a public demand and can be recovered, under the Act. In my opinion, so long the award of the Arbitrator appointed under Section 7-B of the Indian Telegraph Act is not made a public demand by any law, merely the fact that the award has been 'rendered by the Arbitrator appointed under Section 7-B of the Indian Telegraph Act, shall not make it as a public demand fit to be recovered under the Act. Nothing has been brought to my notice to show that the award assumes the status of public demand and made so by any law.
8. Now, the question is as to whether it comes within the definition of public demand as defined under Section 3(6) of the Act. Section 3(6) of the Act reads as follows :-
3. Definition.-In this Act unless there is anything repugnant in the subject or context:-
(1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx (5) xxx xxx xxx
(6)public demand" means any arrear or money mentioned or referred to in Schedule I, and includes any interest which may, by law, be chargeable thereon upto the date on which a certificate is signed under part II; and (7) xxx xxx xxx
9. Entry 4 and Entry 15 of Schedule I of the Act which have been relied on by the State to contend that the amount due comes within the definition of public demand read as follows :-
4. Any money which is declared by any enactment for the time being in force-
(i) to be a demand or public demand; or
(ii) to be recoverable as arrears of a demand or public demand, or as a demand or public demand; or
(iii) to be recoverable under the Bengal Land-revenue Sales Act, 1868 (Ben. Act VII of 1868).
15. Any money payable to-
(i) State Bank of India constituted under the State Bank of India Act, 1955 (No. 23 of 1955); or
(ii) a Bank specified in column (2) of the first schedule to the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 (Act V of 1970); or
(iii) a company or a corporation or a statutory body, including a registered society carrying on financial transactions, owned by or in which, Government has a majority or shares or which is managed by an authority appointed under any law for the time being in force; or
(iv) the Bihar State Electricity Board, in respect of which the person liable to pay the same has agreed, by a written instrument that it shall be recoverable as public demand.
10. From a plain reading of Section 3(6) it is evident that the public demand covers any arrear or money mentioned in Schedule I and includes interest. Therefore to understand the meaning of public demand, one has to refer to Schedule I of the Act, Entry No. 4 of Schedule I of the Act clearly provides that such money shall come within the definition of public demand if it is declared by any enactment to be a demand or a public demand or recoverable as arrears of a demand or public demand or recoverable under the Bengal Land-revenue Sales Act, 1868. In my opinion, for application of Entry No. 4 of Schedule I to bring the money within the purview of public demand necessary declaration has to be made by any enactment or is recoverable under the Bengal Land- revenue Sales Act, 1868. No enactment has been brought to my notice which declares that the money covered under the award of an Arbitrator appointed under Section 7-B of the Indian Telegraph Act shall be demand or public demand or is recoverable as arrears of a demand or public demand. In the absence thereof the demand in question is not covered under Entry 4 of Schedule I of the Act.
11. Now I proceed to consider as to whether the amount determined by the award falls within Entry 15 of the Schedule. Entry 15 makes any money payable to a Corporation owned by or in which a Government has a majority share to be a public demand provided that the person liable to pay by written instrument agreed that it shall be recoverable as a public demand. Therefore, in my opinion, for bringing the money due to the Corporation or such other bodies and Institutions mentioned in Entry No. 15 within the definition of public demand, written instrument that the amount due shall be recoverable as public demand is sine-qua-non. In my opinion, before initiating a certificate proceeding it is necessary to ascertain whether there exists a written instrument that due shall be recoverable as a public demand. Respondents have no where pleaded that their exists any written instrument for recovery of the amount as the public demand.
12. I am of the considered opinion that the certificate proceeding for recovery of the amount can be initiated by the Certificate Officer only when it satisfied that the amount sought to be recovered is public demand. This fact confers jurisdiction on the Certificate Officer to proceed in the matter. Thus in the present case the foundational fact for exercise of the jurisdiction does not exist and, as such, the initiation of the proceeding is illegal and completely without jurisdiction.
13. Accordingly the answer to the question posed at the outset is rendered in negative and in the facts of the present case it is held that the law as existing today, does not permit recovery of the telephone dues as public demand.
14. In the result, the application is allowed, the certificate proceeding initiated against the petitioner and the impugned notice (Annexure 1) are quashed.
There shall no order as to cost.