Jammu & Kashmir High Court
Prithvi Raj Kohli vs Union Of India (Uoi) on 3 July, 1986
Equivalent citations: AIR1988J&K17, AIR 1988 JAMMU AND KASHMIR 17
JUDGMENT K.K. Gupta, J.
1. Sh. Prithvi Raj Kohli filed two separate petitions in the Court of Sub-Registrar, Munsiff, Jammu under Section 7(B) of the Telegraph Act for referring the dispute to an arbitrator for having received inflated bills in regard to telephone connection No. 8502 sanctioned in his favour and installed at his residence located at Gandhinagar, Jammu. The learned Sub-Registrar, Munsiff Jammu held the petitions not maintainable and accordingly dismissed the same. Aggrieved by this order the petitioner has filed separate revision petitions which are being disposed of by this common order as the matter involved in both the petitions is the same.
2. I have heard the learned counsel for the parties.
3. In the Telegraph Act, 1885, there is a provision contained in Section 7(B) regarding arbitration of disputes. This section reads as under : --
"(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telephone line, appliance or apparatus arises between 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 arbitration and shall, for the purposes of 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.
(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."
Admittedly a dispute has arisen between the parties in regard to a telegraph line. In accordance with the provisions of Section 7(B) of the Telegraph Act such dispute is to be determined by arbitration and is required to be referred to an arbitrator appointed by the Central Government. The only point which requires for determination in these petitions is as to whether the Civil Court is competent to refer the matter in accordance with the provisions contained in Section 7(B) to the arbitration of an arbitrator to be appointed by the Central Government. In this regard we have now to look to the provisions of the Arbitration Act under which the Court has powers, where arbitration clause exists, to refer the matter to be adjudicated upon by an arbitrator. In accordance with the provisions of the Arbitration Act the Court has powers to modify, remit or to make the award rule of the Court. The Court at the same time has also powers to set aside the award even. The relevant provision contained in the Arbitration Act regarding application of this Act is contained in Section 46 which provides that the provisions of this Act shall apply to every arbitration under any other enactment for the time being in force except in so far as this Act is inconsistent with that other enactment or with any other rule made thereunder. This provision makes it clear that if in a statutory arbitration under any one of the relevant statutes, it is for the Government or any specified authority to appoint an arbitrator it cannot be said that since no arbitrator was appointed the provisions for arbitration could be applied. Aggrieved party can always approach the authority concerned for the appointment of an arbitrator and if no arbitrator is appointed even then the party can apply for appointment of an arbitrator under the provisions of the Arbitration Act. Section 46 of the Arbitration Act only refers to the contingency where the provisions relating to arbitration contained in other enactment should not be inconsistent with the provisions of the Arbitration Act, otherwise that Act would not, to that extent, apply to them. Section 7(B) of the Telegraph Act relating to arbitration disputes is inconsistent with the provisions of the Arbitration Act only to the extent that the arbitrator is to be appointed by the Central Government for determination of the dispute and the award of the arbitrator would be conclusive between the parties to the dispute and at the same time that award cannot be questioned in any Court. As pointed out above, question for determination is whether the Court is competent to refer the matter for arbitration. There is no such bar contained in the Telegraphs Act in that regard nor Section 7(B), comes in the way of the Court for referring such matter to the arbitrator. The only bar which has to be taken into consideration by the Court is that the matter is to be referred to the Central Government for appointment of an arbitrator and the decision of the arbitrator in that matter will be conclusive and the same cannot be challenged in the Court of law.
4. Learned counsel for the respondent has referred to a case titled, Nitayananda Sahu v. Postmaster General, Orissa reported in AIR 1977 Orissa 48, which authority has also been relied upon by the trial Court in coming to the conclusion, in which it has been held that Sub-section (2) of Section 7(B) of the Telegraph Act makes the award of the arbitrator conclusive between the parties to the dispute and also makes it immune from being challenged in any Court and as such the general scheme of the Arbitration Act is not applicable to the statutory arbitration under the Telegraph Act. With great respect, I disagree with the findings arrived at by the learned single Judge in that case. Section 7(B) of the Telegraph Act does not in any manner oust the jurisdiction of the Civil Court. The only bar contained in this provision is regarding Court's jurisdiction to modify, remit and set aside the award or make it rule of the Court in accordance with the provisions of the Arbitration Act. But so far referring the matter in dispute between the parties to the Central Government for appointment of an arbitrator is concerned Civil Court has jurisdiction.
5. For the aforesaid reasons, the revision petitions are accepted and the orders of the trial Court are set aside. The disputes between parties in both the petitions are referred to the arbitrator to be appointed by the Central Government.