TMI Blog1994 (3) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... 79 onwards by way of a nominal sum of ₹ 2500 per month pending final settlement of dispute in view of the financial crises. This is contained in para 5 of the Undertaking. Respondent's case is that it started paying as per this Undertaking from the month of August, 1979 and did so till January, 1980. The power supply was, however, disconnected on 4.2.80. It is of the view that resort to disconnection had been taken to feed fat the grudge which the certain officers of the Board had against its proprietor. It, therefore, thought that present is a fit case where it can claim damages for disconnection of the electricity and to decide about the quantum of damage, it called upon the Board to appoint its arbitrator within a period of 15 days from the receipt of its letter dated 4.12.80. This was not done. Not only this, the Board approached the Court of Senior Sub-Judge, Patiala by filing an application under Section 33 of the Arbitration Act, 1940 to quash the arbitration proceedings initiated by the respondent. Its case was that the dispute in question could not be the subject matter of arbitration. 3. The Senior Sub-Judge rejected the contention. Feeling aggrieved, the Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sections 21, 52 of Indian Electricity Act, 1910 are not applicable in the instant case as alleged by PSEB OPA. (Acronym OPA was explained to us to mean : Onus on Party Alleging . What an acronym?) So, we have to express our views on the aforesaid two issues because of the importance of the same not only for the case at hand but for such other disputes which might arise between the parties like the ones in this appeal. 6. The respondent sought to rely on Condition No. 29 of Abridged Conditions of Supply applicable to the consumers of the Board in the State of Punjab (to be referred as Conditions, hereinafter) in support of its case that the present dispute is an arbitral dispute. According to Shri Rao, however, the aforesaid Condition cannot be read in isolation and has to be so done alongwith relevant provisions of the Act. The same being Sections 24(1), 26(6) and 52, according to the learned Counsel. Our attention has also been invited to Condition No. 30 on the subject of Interpretation stating that the Conditions shall be subject to the Act . It is, therefore, urged that what has been provided in the Act would prevail over the Conditions and, in any case, Condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respects the arbitration shall be subject to the provisions of the Arbitration Act, 1940. Provided that where the Government or a State Electricity Board is a party to a dispute, the dispute shall be referred to two arbitrators, one to be appointed by each party to the dispute. (Emphasis supplied) 8. The thrust of Shri Rao's submission is that the only those matters can be determined by arbitration relating to which there is a direction in the Act as stated by Section 52. The counter submission of Shri Sibal is that Section 52 has laid down is that in the matters relating to which there is a direction in the Act, those would be determined only by arbitration and no other remedy known to law could be availed of. Shri Sibal contends that Section 52 has left the choice of arbitration to the State Government, except where the proviso is attracted. This is the only purpose of this section. This power would not take away the right conferred by Condition No. 29. 9. Let us examine the soundness of the rival contentions. To do this it would be appropriate to first apprise ourselves which are the matters relating to which the Act has directed that the same would be determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elting Works 1987(32)ELT251(SC) ; Usman Bhai Dawood Bhai v. State of Gujarat 1988CriLJ938 ; Vijay Kumar Sharma v. State of Karnataka [1990]1SCR614 ; Ashoka Marketing Ltd. v. Punjab National Bank [1990]3SCR649 and R.S. Raghunath v. State of Karnataka AIR1992SC81 . 12. In this context, Shri Rao has contended that Section 24(1) of the Act would also show that arbitration provision is not available in a dispute of the present nature and the only remedy to be taken recourse is filing of a suit. We have not felt impressed with this submission, because that section having left it open to the Board to recover the charges or sum mentioned therein by filing a suit, cannot be held to mean that for the consumer also for redressal of any of his grievance the only remedy is filing of a suit. But then, remedy of approach to the civil court would definitely be available to a consumer, if he would seek to recover damages for disconnection due to wrongful manner. 13. Having held as above, let the import of Condition No. 29 be now noted as to which too Shri Rao submits that the same cannot come to the assistance of the respondent. That condition reads as below : In the event of any differenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nasmuch as interpretation of aforesaid para 5 of the Undertaking is involved. Though Shri Sibal does not agree with Shri Rao in this regard, it is apparent that unless the dispute be one visualised by Condition 29 that condition would not come into play. As stated earlier, the dispute should come within any matter connected with the supply and as such, the applicability of Condition 29 cannot be ruled out on the ground that the dispute is not encompassed by it. 16. The aforesaid, however, is not conclusive of the matter, because it has to be first seen whether the dispute at hand can be determined in accordance with the provisions of the Act or by reference to Chief Electrical Inspector - the same being apparently and admittedly not determinable by reference to the Conditions or terms of the agreement . A reference to the Act shows that apart from it having provided that some difference or dispute would be determined by arbitration, to which reference has already been made, some other sections, to wit Sections 28(2), 30(2) and 32(2), deal with the question as to who shall determine those differences or disputes. It is not in controversy that none of the aforesaid provisions d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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