SABAIDA ASHRAF Vs. DISTRICT GENERAL MANAGER

JUDGEMENT

(1.) The substantial question of law framed for a decision is whether S .7B of the Indian Telegraph (Amendment) Act, 1957 (for short, "the Act") which provides for arbitration of disputes concerning telegraph line, appliance or apparatus arising between the Telegraph Authority and the person for whose benefit the line, appliance or apparatus is or has been provided, ousted jurisdiction of the Civil Court to entertain a challenge to the validity of bills issued by the Telegraph Authority concerning the telephone apparatus thus provided?

(2.) Short facts are: Appellant is a subscriber of telephone No.832031 under the Edakkad Telephone Exchange, she having obtained it on transfer from Alakkal Vijayan witheffectfrom27.1.1995.She was issued with bills dated 1.4.1995, 1.6.1995, 1.8.1995 1.10.1995 and 1.12.1995 and a revised bill in respect of last of those bills, admittedly concerning the said telephone connection given to the appellant. She instituted the suit in the court of learned Munsiff, Kannur contending that the said bills are null and void for various reasons including that the bill dated 1.4.1995 covered period from 16.1.1995 to 27.1.1995 while telephone connection was given to her by transfer from Alakkal Vijayan only with effect from 27.1.1995 and that in the bill dated 1.4.1995 there were unauthenticated hand made corrections regarding meter reading and the amount payable. As regards bill dated 1.12.1995 contention of appellant is that the entry initially made was 'zero', that bill was withdrawn and a revised bill was prepared but has not even been served on her. Appellant contended that she had preferred several complaints to the Officer concerned but without any result. Appellant prayed for a declaration that the said bills are null and void, a direction to the respondents to issue proper bills and for injunction against disconnection of the telephone. Respondents while asserting correctness and validity of the bills contended that Civil Court has no jurisdiction to entertain the suit in view of the provision for arbitration under S.7B of the Act. Learned Munsiff held that since the dispute does not concern the telegraph line, appliance or apparatus but only concerned validity of the bills Civil Court has the jurisdiction. It was also held that at any rate Civil Court has the authority to consider whether the statutory authority acted in accordance with the provisions of the Act. On the validity of the bills it was found that bills dated 1.4.1995 and 1.12.1995 are not enforceable. Consequently a decree was granted in favour of the appellant in part declaring the said bills as invalid and unenforceable and granting injunction against disconnection. Respondents preferred appeal. Learned Sub Judge held that the 'dispute' involved in the case came within S.7B of the Act and hence the suit is not maintainable. Accordingly appeal was allowed and the suit ended in a dismissal. Learned Sub Judge observed that parties are at liberty to approach the appropriate Forum under S.7B of the Act for redressal of their grievances. That judgment and decree are under challenge in this Second Appeal on the substantial question of law which I have first above mentioned. Learned counsel for appellant contended that it is only when the dispute concerned telegraph line, appliance or apparatus that S.7B of the Act is attracted. According to the learned counsel dispute in this case only concerned validity of the bills. Learned counsel further contended that the Act does not contain any express or implied provision ousting jurisdiction of the Civil Court to decide validity of the bills. Reliance is placed on the decision of this Court in Union of India v. Sasi (1999 (2) KLT 521). Per contra it is contended by learned counsel for respondents that S.7B of the Act is wide enough to take within its sweep any dispute which relates to a telegraph line, appliance or apparatus and arising between the Telegraph Authority and the person for whose benefit the line, appliance or apparatus is or has been provided. 'Dispute' contemplated under S.7B of the Act takes in a dispute regarding the validity or otherwise of a bill issued in connection with a telegraph line, appliance or apparatus and hence the First Appellate Court was justified in holding that jurisdiction of the Civil Court is taken away by S.7B of the Act. Learned counsel has placed reliance on the decision in M/s. P.T. Bell & Co. Madras v. The Union of India & Ors. (AIR 1993 Mad. 312) and Union of India and Anr. v. Firm Ramchand Naraindas (AIR 1995 M.P. 216).

(3.) S.9 of the Code of Civil Procedure (for short, "the Code") confers jurisdiction on the Civil Court to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The guiding considerations in the matter of decision as to jurisdiction of the Civil Court are that when aright not pre-existing in common law is created by the Statute for the first time and that Statute provided a machinery for enforcement of such right, then, even in the absence of an express bar jurisdiction of the Civil Court is impliedly barred, reason being that the right and remedy are created by the Statute. But when a right pre-existing in common law is recognised by the Statute and a new statutory remedy for its enforcement is also provided, then in the absence of an express provision excluding jurisdiction of Civil Court it could be said that common law and statutory remedies might become concurrent remedies. In Anwar v. First Additional District Judge (AIR 1986SC 1785) the Apex Court, dealing with Ss.68C and D of the Motor VehiclesAct(Act 4), 1939 held that jurisdiction of the State Government (Hearing Authority) under S.68D of the Motor Vehicles Act is exclusive in character and it is not open to a Civil Court to issue an order of injunction restraining the Hearing Authority from proceeding with the hearing of the case. It was held,