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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
A.D. Mane A.B. Palkar, JJ.
Madhav Raghunath Thatte others ..... Petitioners.
Versus
Director, Directorate of Town Planning,
Maharashtra State others ..... Respondents.
Writ Petition No. 225 of 1989, decided on 10-7-1998.
Advocates appeared:
G. Karmarkar with ADSURE, for petitioners.
S.K. Tambe, Asst. G.P., for respondents Nos. 1 and 3.
Anil Kasliwal, for respondent No. 2.
Section 34-Electricity Act, 1910, Section 26 (6)-Applicability of Section 26 (6) of Act.-Since the dispute about amount of electricity consumption is fully covered by Section 26 (6) of Act therefore Arbitrator has no jurisdiction to enter upon reference.
Section 26(6) and Arbitration &Conciliation Act (26 of 1996), Sections 2(4) and 34-Dispute arising between parties relating to consumption of electricity for the period from October, 1991 to May, 1993-Defect in the current transformer (C.T.) resulting in the party paying consumption charges Electricity Act, 1910 that a drastically lower level-Award by arbitrator directing petitioner to pay 4 crores-Section 26(6) creates exclusive jurisdiction in the Electrical Inspector to decide such dispute-Arbitrator had no jurisdiction to enter on the reference because the subject was fully covered by Section 26 of the Indian Electricity Act.- The disputes between the parties were regarding the amount of electricity consumption by the Union of India through the Western Railway. The award was challenged on the ground that the dispute that had been decided by the arbitrator was non-arbitrable the submission being that in view of the provisions of Section 26 of the Indian Electricity Act, there is exclusive jurisdiction vested in the Electrical Inspector to decide the dispute regarding any meter referred in sub-section (1) of Section 26 of the Act. Therefore, the arbitrator had no jurisdiction to entertain the dispute. It was the case of the petitioner even before the arbitrator that in view of the provisions of Section 26 of the Indian Electricity Act, the matter was not arbitrable. By petition filed under Section 34 of the Arbitration and Conciliation Act, the petitioner challenged the award made by the sole arbitrator. It was clear that the dispute between the parties was about the consumption of electricity by the petitioner for the period mentioned above. According to the respondents there we defect in Current Transformer (CT.), which resulted in the petitioner paying the consumption charges at a drastically lower level. The award showed that because it was found that the dispute between the parties did not relate to the meter, but it related to the Current Transformer, the arbitrator held that the provisions of the Electricity Act were not applicable. The provisions of Section 26 would be attracted also in relation to the dispute regarding Current Transformer.
Held, that perusal of the provisions of sub-section (6) of section 26 shows that it is in mandatory form and it mandates that any dispute relating to any meter is correct or not, has to be decided upon an application to be made by either party, by an Electrical Inspector. Thus, Section 26(6) creates exclusive jurisdiction in the Electrical Inspector to decide any dispute regarding any defect in the meter. Perusal of second proviso to sub-section (7) of Section 26 also shows that if the dispute relates to any indicator or apparatus, then also they are to be decided under Section 26 of the Act. There is no manner of doubt that as a result of the amendment in sub-section (6) of Section 26 of the Act, now the entire dispute can be resolved under the provisions of sub-section (6) of Section 26 of the Act. The question whether the arbitrator had jurisdiction to enter upon the dispute in view of the provisions of Section 26 of the Electricity Act is a question of law, which can even be permitted to be raised for the First time under Section 34 of the Arbitration and Conciliation Act. Unless it can be shown that a question of law was specifically referred to the arbitrator, the jurisdiction of the Court to go into the correctness or otherwise of the determination of that question of law by the arbitrator is not ousted. There was no specific question referred to the arbitrator. What was referred to the arbitrator was the dispute arising between the parties. The question of applicability of provisions of Section 26 incidentally arose, which was decided by the arbitrator and therefore this Court can examine the correctness or otherwise of this question. The arbitrator had no jurisdiction to enter upon the reference, because the subject was fully covered by the provisions of Section 26 of the Indian Electricity Act. Petition allowed. AIR 1997 SC 2792; AIR 1998 SC 846, Rel.
Sections 26(6) and (7)-Defuctive meter indicator.- The Electricity Inspector under Section 26(6) of Act has exclusive jurisdiction to decide any dispute regarding any defect in meter.
2.This writ petition is filed by the owners in possession of the said land on 7-4-1987 inter alia seeking a Writ of Certiorari or a writ order or direction in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the respondents to treat the petitioner's land as released from the reservation in the Development Plan and further sanction the development permission asked for by the petitioners along with the letter dated 25-7-1986 at Exhibit D and to restrain the respondents by themselves, their agents or servants by an order of injunction from taking any steps in furtherance of the Development Plan so far as it relates to the land of the petitioners.
3.On behalf of the respondent No. 2 the Municipal Council, Shrirampur affidavit in reply has been filed by one Shri Pratap Narayan Mujumdar, who is Arbitrator, Town Planning Schemes, Shrirampur. In para 4 of the reply an explanation is offered as to why steps were not taken within 10 years from the date of coming into force of the Development Plan. It is, however, stated that the assumption of the petitioners that their land stood released from the development plan is not correct. The land stands reserved in the final Development Plan and the Town Planning Scheme of No. IV of Shrirampur. Lastly it has been submitted that the notice under section 127 of the Maharashtra Regional and Town Planning Act, served by the petitioners was not a valid notice and therefore, the petition deserves to be dismissed.
4.In this context, it is relevant to mention that the petitioners have filed two documents, namely: the Resolutions passed by the Shrirampur Municipal Council on 21-10-1992 and 21-6-1993 resolving that the lands in question are no longer required by the Municipal Council under the Development Plan.
5.Mr. Adsure, learned Counsel for the petitioners, submits that the present case squarely falls within the ratio of decision of the Apex Court in the case of (Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association)1, 1988(1) Bom.C.R. 578 The learned Counsel submits that failure to take steps within six months from the date of receipt of the purchase notice by the petitioners, reservation has lapsed as provided in section 127 read with section 126 of the Maharashtra Regional and Town Planning Act, 1966 (for short the 'Act'). It is also submitted that in view of the resolutions passed by the Municipal Council. Shrirampur, as referred to above the Municipal Council has deliberately failed to take steps either to acquire the land by agreement within ten years from the date of final development plan or final regional plan which came into force on 16-8-1975 or taking proceedings for acquisition as such under the Act or under the Land Acquisition Act, 1894.
6. Mr. Anil Kasliwal, learned Counsel appearing for the respondent No. 2, however, urged that the notice under section 127 of the Act was addressed to the Arbitrator and not to the planning authority, although copy of the notice was served on the planning authority namely: Shrirampur Municipal Council and therefore, the notice is not a valid notice and as such the writ petition is not tenable. The learned Counsel for the respondent No. 2, however, does not dispute about passing of the aforesaid two resolutions by the Municipal Council resolving that the lands shown reserved in the Town Planning Scheme was no longer required by the Municipal Council.
7.In the first place, it is an admitted position that the planning authority failed to take steps within
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