An order which is to be final under a Section cannot be revised under S.115 C.P.C.

1. The order under attack in this revision petition is the order passed by the District Judge under sub-s. 3 of S.16 of the Indian Telegraph Act, 1885, for short, The Telegraph Act. By this order the District Judge has determined the dispute concerning the sufficiency of compensation assessed by the Electricity Board under S.10 clause (d). Sub-s. 5 of S.16 says, speaking of such an order, that it has to be final.

2. Construing S.18(5) of the Kerala Buildings (Lease and Rent Control) Act, 1965 containing the word final' the Supreme Court in Aundal Ammal v. Sadasivan Pillai (1987 (1) K.L.T. 53 (SC) ) held:

"The language of the provision of S.18 (5) read with S.20 inhibits further revision. To vest the High Court with such jurisdiction would be contrary to the scheme of the Act, would be contrary to the public policy and would be contrary to the legislative intention as manifest from the different sections of the Act".

This principle enunciated by the Supreme Court made me ask the counsel for the petitioner as to how the revision under S.115 C. P. C. challenging the order which is to be final under sub-s. 5 of S.16, is maintainable.

3. Since, the decision on this issue was likely to have far reaching consequences I made a general request to the members of the bar to assist the court to determine the issue. M/s. T.P. Kelu Nambiar and P.K. Balasubramaniam responded to the request and their learned argument reflecting their indepth study of the subject, to considerable extent helped me deliver this order.

4. Construing S.16 (3) of The Telegraph Act this court in K.S.E. Board C.G. Narayanan (1973 KLT 968: A. I. R.1973 Ker.144) has held that an order made by the District Judge under sub-s. 3 of S.16 is revisable under S.115 C. P. C. This decision apparently has given a quietus to the issue; but on a reading of this decision it is clear that the learned judge had no occasion to consider the scope and effect of sub-s. 5 of S.16, which says that the order, the District Judge would pass under sub-s. 3, is to be final. The only question that was considered by the learned judge was this: While discharging the functions under sub-s. 3 of S.16, was the District Judge functioning as a person a designata or as a court? The learned judge found that the District Judge was discharging the functions of a court and since the District Court is a court subordinate to the High Court, revision under S.115 is maintainable. In the same strain is the decision of the Lahore High Court (which was followed by the learned Single Judge) in Mian Abdul Aziz v. Punjab Government (A.I.R. 1942 Lahore 186).

5. I am well aware of the position in law that if the point now before me has already been determined by the learned judge, then I am bound to follow the same; unless of course, I differ therefrom. In that event I have to refer the issue to a Division Bench. But this point in my view, has not been considered by the learned judge and hence it is res integra, and therefore it is an open point. As observed by Lord Loreburn L. C. in Kydd v. Watch Committee of City of Liverpool (1908 A. C. 327) "the learning and the law laid down as to other acts of Parliament do not conclude the present case".

6. I shall now read the relevant clauses of S.10 and S.16.

"10. The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immovable property:

Provided that

(d) In the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers".

16(3). If any dispute arises concerning the sufficiency of the compensation to be paid under S.10, clause (d), it shall, on application for that purpose by either of the disputing parti