The existence of an arbitration agreement between the parties and a dispute covered by the arbitration agreement entitled a party to invoke the jurisdiction of the Court for referring the dispute to the Arbitrator. The scope of enquiry in such circumstances was limited to determining the existence of an arbitration agreement and whether the dispute disclosed by the parties was covered by the arbitration agreement.

R.P.SETHI,J.

1. What is the scope, limit and extent of the powers under Article 226 of the Constitution of India in relation for the purposes of giving effect to or issuing directions for the enforcement of arbitration agreements arising out of and under the statutory arbitration clause ? and what are the meaning of the word dispute for the purpose of making a reference to the Arbitrator under the Arbitration Act ? are the twin questions of law required to be adjudicated in Civil Writ Petition Nos., 7819, 12115, 15662, 13882, 13796, 12116 and 15706 of 1995.

2. The petitioners who are subscribers of telephone connection detailed in their petitions have disputed their liability to make the payment of the alleged excess of telephone meters and have prayed for reference of the dispute to the Arbitrator in terms of Section 7 of the Indian Telegraphs Act, 1885. It is contended that despite their being a statutory obligation upon the respondents, the disputes have not been referred to the Arbitrator leaving no option with the subscribers except to approach this Court under Article 226 of the Constitution of India with a prayer of issuance of directions for making reference to the Arbitrator. The petitioners have relied upon various judgments of different High Courts in support of their contention and submitted that disconnection of their telephones cannot be ordered by the respondents without referring the matter to the Arbitrator. It is further submitted that the petitioners cannot be forced to make the payment of the disputed amount under the threat of disconnecting their telephone connections.

3. The petitions are resisted on the ground that the petitioners have no cause of action to invoke the extraordinary writ jurisdiction under Article 226 of the Constitution of India and in fact there is no dispute between the parties requiring reference to the Arbitrator.

4. Section 7-B of the Indian Telegraph Act Provides :

"7-B. Arbitration of Disputes :-

(1) Except otherwise provided in this Act, if any dispute concerning any telephone line, appliance or apparatus arises between the telegraph 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 purpose of such arbitration, be referred to an Arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of the dispute under this section.(2) The Award of the Arbitrator appointed under sub-section (1) shall be conclusive between the parties to dispute and shall not be questioned in any Court."

5 Rule 421 of the Indian Telegraphs Rules empowers the respondents to disconnect the telephone. Rule 421 provides :

"Rule 421. Disconnection of Telephone:-

Where the Divisional Engineer is satisfied for reasons to be recorded in writing that it is necessary to do so, he may, after giving the subscriber a notice in writing for a period which shall not except in emergent cases, be less than 7 days, disconnect the telephone and in such case the subscriber shall be entitled to refund of rent for the unexpired portion of the period of which the connection or service was given."

6 Section 46 of the Arbitration Act provides that provision of the Act excepting sub-section (1) of Sec. 6 and Sections 7, 12 and 37 shall apply to every arbitration under any other enactment for the time being in force as if the arbitration were pursuant to arbitration agreement and as if that other enactment were in arbitration agreement, except in so far as the Act was inconsistent with other enactment or with any rules made thereunder.

7. A combined reading of Section 7B of the Indian Telegraphs Act and Sec. 46 of the Arbitration Act would make it clear that the dispute between the parties with respect to a dispute concerning any telephone line, appliance, apparatus are required to be referred to an Arbitrator appointed by the Central Government