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2005 Supreme(Pat) 989
PATNA HIGH COURT
Chandramauli Kumar Prasad, J.
Narendra Narayan Singh
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 1286 of 2004 ;
Decided On : NOVEMBER 17, 2005
The main legal point established is that the award of an Arbitrator does not automatically become a public demand unless declared so by law, and the necessity of a written instrument for recovery of the amount as a public demand, as required by the Act.
Headnote:
Telephone Dues - Recovery under Bihar and Orissa Public Demands Recovery Act, 1914 - Sec. 7-B of Indian Telegraph Act - Sec. 3(6), Entry 4, Entry 15 of Schedule I of the Act
Fact of the Case:
The petitioner, a telephone subscriber, disputed excessive charges and filed a case before the District Consumer Forum. The Arbitrator appointed under Sec. 7-B of the Indian Telegraph Act rejected the petitioner's claim. The Divisional Engineer of the Sanchar Nigam Ltd. initiated certificate proceeding for recovery of the amount as a public demand under the Bihar and Orissa Public Demands Recovery Act, 1914.
Finding of the Court:
The court held that the telephone dues cannot be recovered as a public demand under the Act as the award of the Arbitrator does not automatically become a public demand unless declared so by law. The court also found that the foundational fact for the Certificate Officer's jurisdiction to proceed in the matter did not exist, rendering the initiation of the proceeding illegal and without jurisdiction.
Issues: The main issue was whether the telephone dues could be recovered as a public demand under the Bihar and Orissa Public Demands Recovery Act, 1914.
Ratio Decidendi: The court emphasized that the award of the Arbitrator does not automatically become a public demand unless declared so by law. It also highlighted the necessity of a written instrument for recovery of the amount as a public demand, as required by Entry 15 of Schedule I of the Act.
Final Decision: The court allowed the application, quashed the certificate proceeding, and the impugned notice, holding that the law as existing at the time did not permit recovery of the telephone dues as a public demand.
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 Sec. 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 u/s. 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 u/s. 6 of the Act and issued notice (Annexure 1) to the petitioner along-with the certificate as provided u/s. 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 sec. 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 u/s. 7-B of the Indian Telegraph Act. sec. 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-sec. (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.
7. True it is that sec. 7-B(1) confers power on the Arbitrator to determine the dispute and Sub-sec. (2) thereof mak
