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2019 Supreme(Mad) 1791
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K.K. SASIDHARAN, P.T. ASHA, JJ.
N. Maniraj – Petitioner
Versus
The Union of India by Ministry of Telecommunication, New Delhi – Respondent
W.P. No. 39218 of 2003, W.P.M.P. No. 47462 of 2003
Decided On : 05-08-2019
Advocate Appeared:
For the Petitioner: N.C. Ashok Kumar.
For the Respondent: S. Gopinathan.
Headnote:
Indian Telegraph Act, 1885 - Section 7-B - Arbitration and Conciliation Act, 1996 - Section 34 - Constitution of India - Article 226 - challenge in the present Writ Petition - challenge to the award - dispute resolution services - pursuance of an arbitration agreement - 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 – Held, Judgments in M.L. Jaggi vs. Mahanagar Telephones Nigam Ltd. (1996) 3 SCC 119 and Union of India and Another vs. M/s. Jagajit Industries and Another, 1999 (4) SCC 506 were no doubt passed prior to the 1996 Act coming into force. However it is to be borne in mind that Section 46 of the 1940 Act which is analogous to Section 2(4) of the 1996 Act was very much in force when the said judgments were pronounced. The Honourable Supreme Court in both the cases had upheld the challenge to the award by way of Writ proceedings. In M.L. Jaggis case the Honourable Supreme Court had observed as follows - Under Section 7-B, the award is conclusive when the citizen complains that he was not correctly put to bill for the calls he had made and disputes the demand for payment. The statutory remedy open to him is one provided under Section 7-B of the Act. By necessary implication, when the arbitrator decides the dispute under Section 7-B, he is enjoined to give reasons in support of his decision since it is final and cannot be questioned in a Court of law. The only obvious remedy available to the aggrieved person against the award is judicial review under Article 226 of the Constitution of India - Judgment of the Honourable Supreme Court in Saji Geevarghese vs. Accounts Officer (Telephone Revenue), (2009) 1 SCC 644 which relates to a dispute that has arisen after the promulgation of the Arbitration and Conciliation Ordinance, 1996 and the arbitral proceedings had commenced after the enactment of the 1996 Act has once again reiterated this position. The Honble Supreme Court has observed in the said Judgment as follows - Section 7-B of the Telegraph Act, 1885 makes the awards of the arbitrators final and conclusive between parties. The only remedy available to a subscriber aggrieved by an award is to seek judicial review by way of a Writ Petition - . Therefore Section 7 B(2) makes it clear that challenge to the award cannot be before a Court of law. However the person aggrieved by the award cannot be left remediless. The principle of Ubi Jus Ibi Remedium - “For every wrong, the law provides a remedy” would step in and therefore the challenge to the award under Section 7-B can be by way of a Writ Petition since the Arbitration in question is a statutory Arbitration – Petition disposed of
JUDGMENT :
P.T. ASHA, J.
Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari to call for the records from the fifth respondent leading to pass the impugned proceedings in No. DE/E10B/ARB/KRU 330474/15, dated 31.10.2003 served on the petitioner on 04.11.2003 and quash the same.
1. This Court has been called upon to give its authoritative pronouncement on the substantial question of law herein below reproduced on the basis of a reference made by the learned Single Judge and pursuant to the order passed by the Hon'ble Chief Justice.
“(i) Whether the remedy of an application under Section 34 of the Arbitration and Conciliation Act, 1996, is available to set aside an arbitral award passed under Section 7-B of the Indian Telegraph Act, 1885?
(ii) If the answer to the earlier question is in the affirmative, whether petitioner who has filed Writ Petition before this Court against the arbitral award passed under Section 7-B of the Indian Telegraph Act, 1885, ought to be relegated to pursue the remedy of an application under Section 34 of the Arbitration and Conciliation Act, 1996 or on the Writ Petition which has been pending for long, be proceeded to be decided on merits?”
2. The Writ Petition which has given rise to the above reference has its genesis in the dispute raised by the writ petitioner under Section 7-B of the Telegraph Act, 1885 regarding the excessive bills received by him in respect of his Telephone bearing No. 2330474 (previously 30474). The Arbitrator after hearing the parties had passed an award on 31.10.2003 granting a rebate of 1000 calls on the bill in question. This award is the subject matter of challenge in the present Writ Petition.
3. Before proceeding to answer the reference it is necessary to extract Section 7-B of the Indian Telegraph Act, 1855 and the relevant provisions of the Arbitration and Conciliation Act.
Section 7-B of the Indian Telegraph Act:
“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.
(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.]”
4. The following provisions of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996 Act) which are relevant for the issue on hand are herein-below extracted:
Section 2 (4) reads as follows:
“(4) This Part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except insofar as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder.”
Section 2 (5) reads as follows:
“(5) Subject to the provisions of sub-section (4) and save insofar as is otherwise provided by any law for the time being in force or in any agreement in force between India and any other country or countries, this Part shall apply to all arbitrations and to all proceedings relating thereto.”
5. Under the Arbitration Act 1940 (hereinafter referred to as the 1940 Act) Section 46 had brought within its ambit statutory arbitration. Section 46 would read as follows:
“46. Application of Act to statutory arbitrations - The provisions of this Act, except sub- section (1) of section 6 and sections 7, 12, 36 and 37, shall apply to every arbitration under any othe
