1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2820 OF 2007 Mahanagar Telephone Nigam Ltd, Mumbai. .. Petitioner versus Euro Vista Trading Co Pvt Ltd .. Respondent Ms.S.I.Shah i/by M/s.S.I.Shah & Co for the petitioner. Mr.Anand Kumar for the respondent. CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSIONS ARE HEARD : 13th January 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED : 12th March 2010. JUDGMENT: . The petitioner-Mahanagar Telephone Nigam Ltd has taken an exception to the judgment and order dated 17th January 2007 passed by the learned Judge of the City Civil Court, Bombay by which a chamber summons taken out by the petitioner has been rejected. 2. With a view to appreciate the controversy involved in the petition, it will be necessary to consider the facts of the case in brief. The petitioner is the defendant and the respondent is the plaintiff. The petitioner is a Government of India Undertaking and the respondent is a Company duly registered under the Companies Act, 1956. According to the respondent, the petitioner has 2 provided three telephone lines to the respondent in its office at 606, Maker Chambers, Nariman Point, Bombay. According to the case of the respondent the bills raised by the petitioner in respect of three telephone lines are being regularly paid by the said company. In February 2003 , the respondent received a letter dated 1st February 2003 from the petitioner addressed to the M/s.Century Impex Pvt Ltd demanding the outstanding amount of Rs. 2,55,918/- allegedly due and payable in respect of another telephone connection which was standing in the name of M/s.Century Impex Pvt Ltd. It was stated in the said letter that if the amount was not paid, the telephone lines of the respondent would be disconnected. 3. The respondent replied to the said letter informing the petitioner that the respondent has no concern with the said company M/s.Century Impex Pvt Ltd. It was contended that though there may be common Directors , the said Company was a distinct entity, the petitioner has no right to disconnect the telephone lines of the petitioner on account of non-payment of bill by the said M/s.Century Impex Pvt Ltd in relation to a different telephone line. It is alleged in the plaint that though personal hearing was sought by the petitioner, the same was not given and on 6th June 2003 the petitioner disconnected three telephone lines in the name of the petitioner. It was contended that the petitioner has never used the telephone line of M/s.Century Impex Pvt Ltd. The first prayer in the suit is for a mandatory injunction directing the petitioner to forthwith re-connect and restore the three telephone lines standing in the name of the petitioner. The second 3 prayer is for perpetual injunction restraining the petitioner from disconnecting the telephone lines of the petitioner on the ground of non-payment of the alleged outstanding bills of a telephone line standing in the name of M/s.Century Impex Pvt Ltd. These are the only two substantive reliefs sought in the plaint. 4. The Chamber Summons No.492 of 2006 was taken out by the petitioner praying that a reference be made to arbitration under section 7-B of the Indian Telegraph Act, 1885. Reliance was placed on various decisions of the Apex Court and this Court in support of the said chamber summons. The chamber summons was opposed by the respondent. By the impugned order, the learned trial Judge came to the conclusion that the respondent was not a subscriber in relation to the telephone connection of M/s.Century Impex Pvt Ltd about which demand was made by the petitioner. The learned Judge observed that as far as the disconnected telephone lines are concerned, there is no dispute about relationship but there is no grievance regarding excess demand. Therefore, the learned Judge proceeded to dismiss the chamber summons. 5. The learned counsel appearing for the petitioner invited my attention to section 7-B of Indian Telegraph Act, 1885 (hereinafter referred to as the Telegraph Act). She placed reliance on a decision of the Apex Court in the case of Telecom District Manager, Goa and others Vs. V.S.Dempo and others ((1996)8 SCC 753). She submitted that the dispute in the suit 4 property is as regards disconnection of three telephone lines in respect of which the respondent was admittedly a subscriber and therefore, the dispute is squarely governed by section 7B of the Telegraph Act. She also placed reliance on the decision of the Apex Court in the case of Surjit Singh Vs. Mahanagar Telephone Nigam Ltd (AIR 2008 Supreme Court 2226). She also invited my attention to a decision of the Apex Court dated 1st September 2009 in the case of General Manager Telecom Vs. M.Krishnan and Another in Civil Appeal No.7687 of 2004. She also placed reliance on certain decisions of this Court. She submitted that the learned trial Judge has committed an error by holding that the dispute involved in the suit was not covered by section 7-B of the Telegraph Act. 6. The learned counsel appearing for the respondent supported the impugned order. He submitted that the respondent has nothing to do with the telephone lines standing in the name of M/s.Century Impex Pvt Ltd. He submitted that the respondent is not the subscriber of the petitioner in respect of the said line. He placed reliance on a decision of the Orissa High Court in the case of Kailash Prasad Modi Vs. Chief General Manager, Orissa Telecommunications and others (AIR 1994 Orissaa 98). He also placed reliance on decision of the Madhya Pradesh High Court in the case of Mahesh Agarwal Vs. Union of India (AIR 1998 MadhyaPradesh 197). Lastly, he relied upon a decision of Orissa High Court in the case of Divisional Engineer Telephones Cuttack and Another Vs. M/s.Beharilal Shyamsunder (AIR 1993 Orissa 302). He submitted that section 7-B of the Telegraph Act 5 cannot oust the jurisdiction of the Civil Court. He has placed reliance on several decisions of this Court as well as Calcutta High Court in support of the contention that under Rule 443 of the Indian Telegraph Rules the petitioner is not entitled to disconnect telephone lines of a subscriber on the ground that the another subscriber having independent telephone connection in the same premises has not paid bills relating to the said independent connection. He submitted that M/s.Century Impex Pvt Ltd being a separate entity , on the ground of non payment of the charges by the said company, telephone lines of the respondent could not have been disconnected. 7. I have given careful consideration to the submissions. The learned counsel appearing for the petitioner relied upon a decision of the Apex Court in the case of Surjit Singh (supra) and contended that the word “subscriber” had to be widely construed. The Apex Court in the said decision held that the telephone line in the name of the person who is really paying the bills in connection with a telephone line in the name of another person who is economically dependent on the former can be disconnected for non- payment of bills in connection with telephone line in the name of the latter. 8. The learned counsel appearing for the respondent has relied upon several decisions of this Court holding that Rule 443 cannot be invoked by the petitioner for disconnecting telephone line of a person on account of non -payment of bill in respect of another telephone line by another person. In 6 the present petition this Court is not concerned with the merits of the action of disconnection. The only limited question is whether the dispute in the suit is governed by section 7-B of the Telegraph Act. The second question will be If the dispute is one covered by section 7-B, whether reference to arbitration is warranted. Section 7-B of the Telegraph Act reads thus: “7-B. Arbitration of disputes.—(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, ap- pliance 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 arbit- rator 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.]” 9. On plain reading of section 7-B its applicability is not limited only to dispute regarding bill or payment of charges. Section 7 covers any dispute concerning the telegraph authority and the person for whose benefit an appliance or apparatus has been provided. Sub-section (1) of section 7B mandates that such dispute shall be determined by arbitration and shall for the purposes of such determination be referred to an arbitrator appointed by the Central Government. For attracting section 7-B, the dispute must be concerning telegraph authority and the person for whose benefit a line, appliance or apparatus has been provided and the dispute can be of any nature provided it is concerning a telegraph authority and the person for 7 whose benefit the line, appliance or apparatus has been provided. In the present case, three disconnected telephone lines have been provided for the benefit of the respondent. The dispute is between the petitioner- telegraph authority and the respondent for whose benefit the telephone lines has been provided. The telephone lines subject matter of the suit are three telephone lines which are admittedly provided for the benefit of the respondent which have been disconnected. There is no relief claimed as regards the demand of amount relating to telephone line provided for the benefit of M/s.Century Impex Pvt Ltd. Thus, the dispute involved in the suit satisfies the test of section 7-B of a dispute concerning telegraph authority and a person for whose benefit the line or apparatus has been provided. 10. In this context, it will be necessary to refer to decision of the Apex Court in the case of Telecom District Manager, Goa (supra). After quoting the section 7-B , In paragraph 3 of the said decision, the Apex Court has held thus: “3. A reading thereof would indicate that if any dispute concern- ing 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 dis- pute shall be determined by an arbitrator. Such determination shall be referred to an arbitrator appointed by the Central Gov- ernment either specifically for the determination of the dispute or generally for the determination of the dispute under this sec- tion. The award of the arbitrator shall be conclusive between the parties to the dispute and its correctness is prohibited from being questioned in a court of law. It would, otherwise, be clear that any dispute regarding the billing of the meter and the liability on a subscriber thereon when its correctness is disputed, should be re- ferred to the arbitrator by the Central Government. The arbitrator’s 8 award shall be final. In a recent judgment, considering the provisions of the Act, this Court has explained that when the arbitrator’s award is final, it would be subject to only judicial review. The judicial review by the High Court or this Court would be possible only when the ar- bitrator gives reasons in support of the conclusions he reaches, be it technical or on factual basis. The Administrative Instructions is- sued by the Union of India that the dispute shall be referred only when there is a reference by the court is obviously in defi- ance of the language used in Section 7-B. The power to refer the dispute has been given by Parliament only with a view to see that the authority acts within reasonable limits and that when the subscriber disputes the correctness of the meter reading or operation of the apparatus etc. instead of litigating the dispute in a civil court, it should be decided by the arbitrat- or under Section 7-B. Obviously, pending proceedings the Act intended to operate without undue delay to secure public reven- ue and also flow of electrical operation envisaged under the Act.” (Emphasis added) 11. In the case of the General Manager Telecom Vs. M.Krishnan & Anrother (supra) the dispute was regarding non-payment of telephone bill for the telephone connection provided to the 1st respondent before the Apex Court. On account of non-payment of the said telephone bill, the line was disconnected by the General Manager, Telecom. The 1st respondent before the Apex Court filed a complaint before the District Consumer Disputes Redressal Forum. The complaint was allowed and a direction was issued to re-connect the telephone connection. The order of the Consumer Forum was challenged by filing a writ petition. Ultimately, the matter was referred to Full Bench of the Kerala High Court. The order of Consumer Forum was confirmed. While dealing with the appeal preferred by the General Manager, Telecom the Apex Court held thus: 9 “. In our opinion when there is a special remedy provided in section7B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred.” After considering section 7-B and Rule 443 of the Indian Telegraph Rules, the Apex Court held thus: “. It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach. . In Chairman, Thiruvalluvar Transport Corporation Vs. Consumer Protection Council (1995) 2 SCC 479 it was held that the National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents. We agree with the view taken in the aforesaid judgment. . In view of the above, we allow this appeal, set aside the impugned judgment and order of the High Court as well as the order of the District Consumer Forum dated 26.11.2001.” Thus, the conclusion of the Apex Court is that provision of section 7-B of the Telegraph Act being a provision of special law will override the general law Therefore ,the order of District Consumer Forum was set aside by observing that a special remedy is provided in section 7-B of the Telegraph Act and thus, the remedy under Consumer Protection Act is barred by implication. 12. Reliance has been placed on various decisions of this Court rendered in suits filed to which the petitioner is the party. Reliance is placed on the decision of this Court in the case of Mahesh (India) Vs. Mahanagar Telephone Nigam Ltd dated 25th October 2007 in Suit No.1754 of 1992. In paragraphs 2 and 3 this Court observed thus: 10 “2. The present suit has been filed by the plaintiff challenging the demand bill in respect of telephone charges claimed by the defendant (MTNL) being excessive one. The dispute so raised is squarely covered by the provisions of section 7B of the Indian Telegraph Act, 1885. That position is not disputed by the counsel for the plaintiff. In such a case, reference of dispute to arbitration under section 7B of the Act is imperative. 3. A priori, in view of the mandate of section 7B of the Act, as expounded by the Apex Court in the case of Telecom District Manager, Goa and others Vs. V.S.Dempo and Company and others reported in AIR 1996 S.C. 1545, it is appropriate that the dispute raised in the present suit is referred to arbitration. The reference to arbitration is for determination of dispute under section 7B of the Act, which is a statutory remedy.”(Emphasis added) 13. Reliance is placed by the learned counsel appearing for the respondent on decision of Orissa High Court in the case of Divisional Engineer Telephones Cuttack & Another (supra). The Orissa High Court held that jurisdiction of the Civil Court will be ousted only if the dispute will be covered by section 7-B(1) of the Telegraph Act. This was a case where the plaintiff’s telephone connection was sought to be disconnected for non- payment of arrears due of another telephone with which the plaintiffs had no connection. It was held that the dispute was not covered by section 7-B(1) of the said Act. He placed reliance on another decision of the Madhya Pradesh High Court in the case of Mahesh Agarwal (supra). With greatest respect to the view taken by the Orissa High Court and Madhya Pradesh High Court, it must be stated that the attention of the said Courts was not invited to very wide scope of section 7-B(1) of the said Act. As stated earlier, it covers any 11 dispute concerning any telegraph authority and the person for whose benefit the line, apparatus or appliance has been provided. The section provides that all such disputes shall be determined by arbitration. The section applies to all such dispute including dispute regarding billing. Thus, section 7-B creates a special remedy for determination of such disputes and hence the jurisdiction of the Civil Court to deal with such disputes is barred by necessary implication. Hence, the view taken by the trial Court is erroneous and the impugned order deserves to be quashed and set aside. 14. It must be noted here that this Court has not dealt with submissions made on merits of the suit regarding power of the petitioner to disconnect the telephone lines of the respondent on account of non-payment of bill in respect of the telephone line of M/s.Century Impex Pvt Ltd. 15. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 17th January 2007 is quashed and set aside. (b) The chamber summons is made absolute in terms of prayer clause (a). (c) The Central Government shall take immediate steps to notify the arbitrator. (d) The petitioner shall ensure that the Central Government is moved immediately for taking expeditious steps in the matter of 12 appointment of arbitrator. It is expected that arbitrator shall be appointed within a period of eight weeks from the date on which an authenticated copy of this judgment is made available to the petitioner. (e) The dispute is of the year 2003. Hence, the arbitrator so appointed by the Central Government shall conclude the arbitration proceeding within six months from the date on which he enters upon the arbitration or from the date on which the respective parties are supposed to make first appearance before him, whichever is earlier. (f) It is made clear that interim relief, if any, operating in favour of the respondent during the pendency of the suit shall continue to operate till the disposal of the arbitration proceedings. (g) The suit stands disposed of in above terms. (h) The writ petition is allowed in above terms. (i) No orders as to costs. (A.S.OKA,J)