Soumitra Sen, J.@mdashThis is an application under Sections 30 and 33 of the Arbitration Act, 1940 or Setting aside of an award dated 29th/30the March, 1995. passed by the Deputy Eletrical Inspector, West Bengal. The petitioner and the respondent NO. 1 the West Bengal State Electricity Board (hearinafter referred to as �the WBSEB�) had entered into an agreement for supply electricity under certain terms and condiditons. Clause 27 of the said agreement provides as follows:-
�should any dispute or difference arises between the Board and the Consumer relating to any of the matters in this Agreement, the same shall be referable to two Arbitrators, one to be appointed by each party to the dispute and provisions of the Arbitration Act, 1940 shall apply to such arbitration in all other respects.�
2. Disputes and differences arose as between the parties with regard to the electricity bills, which were challenged before this Court Under Article 226. The petitioner also filed a special suit u/s 20 of the Arbitration Act, 1940 along with an application u/s 41 of the said Act. The petitioner had also invoked the provisions of Section 24(2) and 26(6) of the Indian Electricity Act, 1910 read with section 76 of the Electricity Supply Act, 1948.
3. According to the petitioner all the bills that were raised from time to time from the month of August, 1996 till August, 1997 were inflated and exorbitant and were challenged in accordance with the provisions of Section 24(2) and 26(6) of the Indian Electricity Act, 1910 or Electricity Supply Act, 1948.
4. With regard to the electricity bills for the month of July, 1987 and August, 1987, the petitioner filed a writ application before this Hon�ble Court on 14th October, 1987. Ann other was passed. iner alia. Directing the some od hoc payments subject to final determination by the Chief Electrical Inspector. Pursuant to the said order the Chief Electrical Inspector, West Bengal, referred the matter to the Deputy Chief Electrical Inspector to adjudicate upon the dispute between the parties and after hearing the parties the impugned order was passed.
5. This application has been challenged on behalf of the WBSEB mainly on the ground of maintainability and no submissions on merit was made.
6. Therefore, the question which is required to be decided is whether the impugned award passed by the Chief Electrical Inspector could be challenged in an application under sections 30 and 33 of the Arbitration Act, 1940 instead of preferring an appeal in terms of Section 36(2) of the Indian Electricity Act, 1910.
7. Before dealing with the respective contentions of the parties it is necessary to examine some of the provisions of the Electricity Act as well as the Electricity Supply Act. For the sake of the convenience sections 24(2) and 26(6) of the Electricity Act, 1910 and section 76 of the Electricity Supply Act, 1948 set out as here under:
"Section 24. Discontinuance of supply to consumer neglecting to pay charge.--(1) Where any person neglects to pay any charge for energy or any sum, other than a charge for energy, due from him to a licensee in respect of the supply of energy to him, the licensee may, after giving not less than seven clear days'' notice in writing to such person and without prejudice to his right to recover such charge or other sum by suit, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied, and may discontinue the supply until, such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer.
(2) Where any difference or dispute which by or under this Act is required to be determined by an Electrical Inspector, has been referred to the Inspector before notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by this section until the Inspector has given his decision:
Provided that the prohibition contained in this sub-section shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the Electrical Inspector of the amount of the licensee''s charges or other sums in dispute or for the deposit of the licensee''s further charges for energy as they accrue, and the consumer has failed to comply with such request."
"Section 26(6) Meter--Where ,any difference or dispute arises as to whether any meter referred to in Sub-section (1) is or is not correct, the matter shall be decided, upon the application of either by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not. in the opinion of such Inspector, have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof such amount of quantity:
Provided that before either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less than seven days'' notice of his intention so to do."
"Section 76. Arbitration--(2) Where any question or matter is, by this Act, required to be referred to arbitration, it shall be so referred--
(a) in cases where the Act so provides, to the Authority and on such reference the Authority shall be deemed to have been duly appointed as arbitrators, and the award of the Authority shall be final and conclusive; or
(b) in other cases, to two arbitrators, one to be appointed by each party to the dispute."
8. Section 24 makes it clear that when a person neglects to pay any charge towards consumption of energy or any sum other than the charge of energy in respect of supply of energy fails to pay the same the licensee after giving not less than seven clear days'' notice in writing may disconnect the electricity supply. When there is any dispute or difference with regard thereto has been referred to the Electrical Inspector before the issuance of such notice the licensee shall not disconnect unless the Electrical Inspector has given any decision.
9. Section 26(6) provides for adjudication of dispute or difference with regard to the correctness of an electric meter by an Electrical Inspector.
10. Section 76 of the Electricity Supply Act, 1948 makes it clear that any question of matter which is required to be referred an arbitration under the Act shall be referred to the authority concerned.
11. While considering the above provisions it is also essential to look into Section 52 of the Indian Electricity Act, 1910 which is set out as under:
"Section 52. Lower limit of power factor in supply by Board.--Unless otherwise agreed between the Board and the licensee, no supply of electricity taken by a licensee from the Board under this Act shall be taken at an average power factor below 0.85 during the period of maximum demand of the licensee in any month, and in the event or the average power factor as aforesaid being lower than 0.85, the licensee shall within a reasonable time take such measures, the cost of which shall not be borne by the Board, as may be necessary to raise it to a value not lower than 0.85.�
12. From the said section it is clear that when any matter which under the said Act is required to be determined by arbitration, unless it is otherwise expressly provided in the license of a licensee be determined by such person or persons as the State Government may nominate in that behalf on the application of either of the parties and in all other respects the arbitration shall be subject to the provisions of the relevant Arbitration Act. This scope of Section 52 appears to me is with regard to a dispute and difference between the licensee and the State Government and is not relevant for the purpose of adjudication of dispute between a consumer and/or licensee. A licensee has been defined under the Indian Electrical Act, 1910 in Section 2(h) where under a licensee means a person licensed under part-II of the said Act to supply energy. The WBSEB is a licensee as defined under the said Act.
13. The main argument on behalf of the petitioner with regard to the question of maintainability is that the reference, which was held before the Deputy Electrical Inspector, was a reference within the meaning of Section 2(e) of the Arbitration Act and was a reference pursuant to the order of Court. It is submitted that invoking the arbitration clause, namely. Clause 27 of the Agreement mentioned above, made the reference to the arbitrator.
14. The petitioner had also filed an application u/s 20 and 41 of the Arbitration Act, 1940 but was subsequently withdrawn with liberty to have the dispute adjudicated by the Chief Electrical Inspector.
15. Under the relevant Indian Electricity Act, 1910 and the Electricity Supply Act, 1948, certain kind of differences and disputes are required to be adjudicated by the Chief Electrical Inspector. Therefore, one is required to construe as to what would be the effect of Clause 27 of the Agreement entered into by and between the parties. In terms of Clause 27 both the parties are required to appoint one arbitrator each for adjudication of the disputes or differences that had arisen between the WBSEB and the consumer relating to any of the matters with regard to the agreement and thereafter the provisions of the Arbitration Act, 1940 was to apply to such application in all other respects. But however, with regard to issue of correctness of the bill and the correctness of the meter is required to be adjudicated by the Chief Electrical Inspector. Therefore, it appears to me that any dispute, which is required to be resolved and/or adjudicated in a manner, let down in the Act is to be excluded from the disputes and differences which is required to be adjudicated in terms of Clause 27 of the Agreement. Though the parties have referred the disputes before the Chief Electrical Inspector for adjudication in terms of an order passed by the Court such reference will not be a reference under the Arbitration Act, 1940. In fact, the appointment of arbitrator was not made in the application u/s 20 of the Arbitration Act, 1940 filed by the petitioner but in a proceeding under Article 226 of the Constitution. Before the Writ Court the petitioner had Inter alia contended that the WBSEB inspite of having a legal obligation and inspite of being asked to adjudicate the dispute have not taken any steps in terms of Section 24(2) and 26(6) of the Indian Electricity Act, 1910 and section 76 of the Electricity Supply Act. 1948. Therefore, the writ Court in effect the order dated 14th October, 1987 had merely directed the parties to act in terms of the relevant provisions of law and therefore that order cannot be termed to be an order of reference in accordance with the provisions of the Indian Arbitration Act, 1940.
16. u/s 76 of the Electricity Supply Act, 1948 only those questions or matters, which are referable under the said Act, is required to be referred to an arbitrator. The said Electricity Supply Act contains certain provisions whereby disputes and/or differences can be referred to arbitration. The said provisions can be found in sections 19(4) 44(3) 45(3) and 57 read with para 1-16 of the 6th Schedule.
17. Therefore, in my opinion, a harmonious construction of various provisions of the Indian Electricity Act, 1910 and the Electricity Supply Act, 1948 clearly indicate adjudication of disputes by certain authorities under certain circumstances.
18. If the intention of the legislature would have been that all differences and/or disputes are to be referred to the arbitrator in terms of Clause 27 of the Agreement then separate provisions in the Act for adjudication of disputes under certain circumstances that is in case of dispute of a bill and dispute with regard to correctness of a electric meter would not have been incorporated in the Act itself.
19. The expression "award" means an arbitration award. It is, therefore, clear that the definition is not a comprehensive definition. Blacks Law Dictionary defines award as a final Judgment or decision especially of an arbitrator or a jury essentially for damages. Therefore, the expression "award" basically means a final Judgment upon adjudication of disputes. The decision of the Chief Electrical Inspector can also be an award but it does not necessarily mean that it has to be an award under the Arbitration Act, 1940.
20. Section 36(2) of the Electricity Act provides that in the absence of any provisions contrary to the said Act or any rule made thereunder an appeal shall lie of an Electrical Inspector. There is no other provision contained in the said Act under which a decision of an Electrical Inspector can be challenged. Therefore, if an order has been passed by the Chief Electrical Inspector u/s 24(4) or Section 26(6) it can be challenged u/s 36(2) of the Said Act.
21. It has been submitted on behalf of the petitioner that the WBSEB is also treating the decision of the Electrical Inspector as an award and in support thereof certain documents have, been relied upon. The said documents are some demands raised upon the petitioner wherein it had been mentioned that the demands have been raised as per the award passed by the Deputy Chief Electrical Inspector dated 30th March, 1995. Merely by using the expression "award" by the WBSEB does not mean that it will be an award as contemplated under the Arbitration Act, 1940.
22. It is an admitted position here that Clause 27 of the Agreement was not invoked. The petitioner had withdrawn the application filed u/s 20 of the Arbitration Act for referring the disputes to an arbitrator. If the appointment of the arbitrator was made in terms of Section 20 of the Arbitration Act, 1940 and the parties participated in such a proceeding then the situation would have been altogether different. The petitioner has relied upon a decision of
23. If the ward or the decision of the Electrical Inspector is not an award within the meaning of Arbitration Act, 1940, then there is no requirement to have the said award filed in Court to obtain a decree in terms thereof and to have the same executed. Once the Electrical Inspector has come to a decision, the WBSEB is entitled to raise a demand based on the same unless however the said decision is set aside and/or modified and/or altered by the appropriate forum.
24. In my opinion, the order dated 14th October, 1987 merely directs the parties to adjudicate the dispute in terms of the provisions of the Indian Electricity Act, 1910 read with Electricity Supply Act, 1948 and cannot be deemed to be an order of reference in accordance with the provisions of the Arbitration Act, 1940.
25. The respondents in support of their contention with regard to the maintainability of this application have relied upon the decision which are:
1)
3)
4)
26. In the decision of Punjab State Electricity Board (supra) the Hon''ble Supreme Court has held that only certain disputes are referable to arbitration and that the legislature intended that only those matters enumerated in the Electricity Act alone should go for arbitration and no others and therefore in those matters where there is no direction in the Electricity Act cannot be the subject matter of arbitration.
27. In the instant case, inspite of Clause 27 of the Agreement Section 26(6) clearly lays down that in case the disputes with regard to the correctness of an electric meter the same shall be adjudicated by the Electrical Inspector. Therefore, there is no option on the parties to invoke the arbitration clause by appointing arbitrator for the purpose of adjudicating the disputes with regard to the correctness of an electric meter as such a dispute can only be decided in terms of the Section 26(6).
28. The decision of M/s. Bengal Iron Trading Co. (supra) the Hon''ble Supreme Court has held that an order passed by the Electrical Inspector u/s 26 is appealable u/s 36(2) of the Indian Electricity Act, 1910.
29. The decision of Collector of Central Excise, Kanpur (supra) has been relied upon for the proposition if an appealable order is not challenged then it cannot be questioned in a proceeding for refund. I am, however, not concerned with the issues which were before the Hon''ble Supreme Court in the said decision. The issue before me is mainly in nature as to whether the decision of the Electrical Inspector could be challenged in an application u/s 30 and 33 of the Arbitration Act, 1940 or it is required to be challenged by preferring an appeal.
30. The decision of Santosh Kumar Verma (supra) has been relied upon for the proposition that to challenge the award and/or decision of the Electrical Inspector would be contrary to law because of the clear provisions of the statute and no order can be passed in favour of the petitioner.
31. The submission of the petitioner that the Arbitration Act overrides the Indian Electricity Act 1910 cannot be accepted because of the clear observations of the Hon''ble Supreme Court in the case of Punjab Electricity Board (supra).
In view of the discussion made above, I am of the opinion that this application is not maintainable. Since I have held that the application is not maintainable there is no need to enter into the merits of the case and I make it clear that I have not decided the matter on merits. This application is thus dismissed. There will be no order as to costs. The petitioner is at liberty to take such steps as it may be advised in accordance with law to challenge the impugned award and/or decision.
