- (1.) THE common run of the cases filed in this jurisdiction against the Telegraph authority, which are almost inundating dockets of this court, are typical.- The petitioners come with the usual complaint that the billing by the Telegraph Authority in respect of the telephones has been wrong and excessive and try to fortify their contention by pointing out that the bills for the periods immediately preceding were at much lower scale. Bills for lesser amounts for the preceding cycles can not, by themselves, lead to the inference that the Bills for higher amounts for the succeeding cycles are wrong or excessive. The respondent Telegraph Authority appears and asserts that the Bills have been correctly made and we then, almost as a matter of course, dispose of the matter by directing the disputes to be referred to arbitration under the provisions of Section 7b of the telegraph Act, 18 85, with a further direction to the Central government, usually a party to the petitions before us, to appoint an Arbitrator in terms of that Section.
(2.) ASSERTION by the subscriber that the telephone bill is excessive and the amount billed is much more than what it ought to have been and a counter-assertion by the Telephone be Authority that the Bill is correct, would, by. and large, involve dispuited questions of fact and Writ Court is generally not the forum. for the adjudication of such disputes and, therefore, until the insertion of Section 7b in the Telegraph Act of 1885 in 1957, the dispute was, to be resolved by ordinary suit. But is there anything in Section 7b which would justify invocation of the Writ jurisdiction and the issuance of Writs? Set us have a look at the Section, reading as hereunder : - "7b - Arbitration of disputes - (1) Except as otherwise expressly provided in this act, if any dispute concerning any telegraph line, cable chamber, tower, appliance or apparatus, arises between. the telegraph authority and the person for whose benefit the line, cable chamber, tower, appliance or apparatus is or has been provided, the dispute shall be determined by arbitration, and shall, for the purpose of such determination, be referred to as - arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of dispute 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. " Learned Counsel for the Petitioner, has urged that the provisions of Section 7b can not apply to any dispute as to excess billing and for this the learned Counsel has mainly relied on the observations in a recent Special Bench decision of the Gauhati High Court in Santoah Singh vs divisional' Engineer Telephones (AIR 1990 Gauhati 47 ). It is true that the Special Bench in that case has cleanly ruled "that the dispute regarding- excess billing does not fail within the ambit of section 7b" and that "section 7b has no application to a case of excess billing"; But, with respect, I have not been able to fursuade myself. to agree with these observations and I have no doubt that dispute relating to correctness of the amount billed for the telephone, for the rental or for the calls alleged to have been made, is a dispute concerning the telephone line, appliance or apparatus. The expression concerning means "about". If there could have been* no occasion for any telephone Bill but for the telephone line, the dispute relating to the Bill would obviously be a dispute about or relating to or concerning the telephone line. There are good number or authorities for the view I take and reference, among others, may be made to two single-Judge decisions of the Orissa High Court in Nityananda Sahu vs. Post-Master General (AIR 1977- Orissa 48) and in Makhani devi v. Union of India (AIR 1981 Orissa 11), both rendered by the same learned Judge and also to a recent Division bench decision of that High Court in Orissa Vegetable Oil complex vs. Union of India (AIR 1990 Orissa 51), where the earlier 'orissa decisions have been relied. In Makhani cevi, (supra), R. N. Misra, J. , (as his Lordship then was), has held, relying on his own earlier decision in Nityananda sahu (supra), that the telephone set provided to the subscriber is an apparatus within the meaning of Section 7b (1)and since the disputed Bills relate to the user of that apparatus, the dispute would obviously be covered by Section 7b (1 ).
(3.) IF dispute relating to the amount of Bill concerning or relating to a telephone is, and in my view it is, a dispute within the meaning of Section 7b, and such a dispute is raised by the subscriber, it is difficult to understand as to how any action to the prejudice of the subscriber can be taken by the Telegraph Authority for non-payment of such Bill, without having that dispute resolved by arbitration under and in accordance with Section 7b. I should 'like to have no doubt that once a dispute is raised within the meaning of Section. 7b, an arbitration there under is a must before the authority can proceed further to the prejudice of the subscriber. There is nothing to prevent the subscriber from asking the Authority to take steps for appointment of and reference to the Arbitrator and in fact the subscriber should do so, if he finds the Authority not to move in the matter with reasonable expedition. But since the Authority would not be able to take further action for the non-payment of the Bill until the dispute is arbitrated, and thus the ball is more in its court than that of the- subscriber, it would be for the Authority, both in departmental and also in public interest, to take the move as expeditiously as possible. But if the Telegraph authority does not do so, is the Writ Court the only forum that can be resorted to by the subscriber for the necessary relief ? Can not, and should not, the subsrciber move the civil Court under Section 20 of the Arbitration Act. , 1940 ?;