PUNJAB STATE ELECTRICITY BOARD MAHILPURversusMIS. GURU NANAK COLD STORAGE AND ICE FACTORY, MAHILPUR AND ANR.

A          PUNJAB STATE ELECTRICITY BOARD MAHILPUR
                              v.
        MIS. GURU NANAK COLD STORAGE AND ICE FACTORY,
                      MAHILPUR AND ANR.

                                   JULY 12, 1996
B
                [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

          Indian Elec(Jicity Act, 1910: Sections 7-A(1), 8 to 10, 12 to 19, 32, 33,
    44(3), 52, 55(3) and 78-A(2).
c
          Elec(Jicity (Supply) Act, 1948: Section 76(2).

           Electricity dues-Default in payment committed by respondent-Dis-
    connection of supply by appellant-Boarcf-Respondent claiming damages
    from Board and issuing notice to appellant-Board to refer the dispute for
D   arbitration-Elecllicity Board's suit for pe11nane11t injunction restraining the
    appointment of Arbitrator dismissed by tiial cowt-Dismissal of suit upheld
    by appellate cowt as well as by High Cowt-Appeal prefen·ed before Supreme
    Cowt-Held the dispute regarding damages was not arbitable-Held the High
    Court and courts below were clearly CJTor in holding that the matter was to
E   be refoTed to arbitration and arbitrator had to decide the dispute as to
    arbitrability or on merit-The damages which ensued for disconnection is not
    a dispute arising under Section 19( 1) of the Electricity Act-Section 52 of the
    Electricity Act or 76(2) of Supply Act read with Section 19(1) of Electricity
    Act has no application to the dispute-Section 52 of the Electricity Act does
    not get attracted; and equally section 76(2) of the Supply Act-In view of the
F   express admission made by the respondent that there is no agreement of
    arbitration as defined in Section 2(a) of the Arbitration Act, Section 33,
    therefore, does not get attractecf-Section 46 does not apply as the scheme
    under both the Acts viz. Arbitration Act and Electricity Supply Act in this
    behalf is inconsistent.
G
          Punjab S.E.B. v. Bassi Cold Storage, [1994) 2 SCC 124, distinguished.

          The Mysore State Elect1icity Board v. Bangalore Woollen, Cotton and
    Silk Mills Ltd. & Ors., [1963) Supp. 2 SCR 127, referred to.

H         Mysore Manufacturers & Traders v. State of Kamataka, AIR [1982)
                                         534
         PB. STATEELF.CTRICITY BD. '· GURUNANAKCOLDSTORAGEICEFACTDRY    535

Karnataka 54, approved.                                                       A
         Arbitration Act, 1940: Sections 2(a), 33 and 46.

      Arbitration agreement-Question as to existence and validity of agree-
ment-Held the existence and validity of the arbitration agreement has to be
decided by the Civil Cowt-Arbitrator cannot clothe himself with jwisdiction    B
to conclusively decide it.

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9501 of
l.996.

     From the Judgment and Order dated 14.12.92 of the Punjab &                c
Haryana High Court in R.S.A. No. 1993 of 1990.

         P.P. Rao, R.S. Sodhi and Darshan Singh for the Appellant.

         M.S. Gujral and Mrs. Kirti Mishra, for the Respondents.
                                                                              D
         The following Order of the Court was delivered :

         Leave granted.

       This case has a chequered history, the entire narration of which is
not material to the controversy at hand. Suffice it to state that pursuant to E
the default committed by the respondent in payment of the dues, the
appellant-Boa~ had disconnected the supply of electrical energy on
20.8.1982. For the recovery of the arrears, the appellant had laid the suit.
Ultimately, the suit ended in the order passed by this Court in C.A. No.
2767 of 1987 on February 15, 1989 upholding the decree for recovery of F
the arrears for the disconnection of the supply of electrical energy; the
respondent had a notice issued on August 1, 1985 claiming damages in a
sum of Rs. 68,25, 734 which, we are informed, subsequently increased to
over Rs. 93,00,694.00. Therein, the respondent called upon the appellant
to refer the dispute to an arbitrator under Section 52 of the Indian
Electricity Act, 1910 (for short, the 'Electricity Act') or under Section 76(2) G
of the Electricity (Supply) Act, 1948 (for short, 'Supply Act'). Calling that
notice in question, the appellant filed suit No. 291 of l.985 on the file of
the Sub-Judge, I class for declaration and also for permanent injunction
restraining the appointment of an arbitrator to adjudicate the dispute
raised in the notice. The civil suit was dismissed on March 31, 1989 which H
    536                    SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A was confirmed in appeal. The High Court in the impugned judgment and
    order dated December 14, 1992 in Second Appeal No. 1993 of 1990
    dismissed the appeal finding thus :

            "A perusal of Section 32 shows that no suit is competent on any
            ground whatsoever "for a decision upon the existence, effect or
B           validity of an arbitration agreement.. .... ". Furthermore, a perusal of
            provisions of section 33 shows that any Party wanting to challenge
            the existence of an arbitration agreement can do so only through
            an application under the said provisions of the Arbitration Act. It
            appears that no civil suit is competent in respect of matters which
c           can be decided through arbitration and any party challenging the
            existence of an arbitration agreement can only do so through the
            summary procedure contemplated under section 33 of the Act.
            The remedy of a regular civil suit, thus, appears to have been
            excluded. 11




D
            Thus this appeal by special leave.

          Shri P .P. Rao, learned senior counsel fo; the appellant, contended
    that the view taken by the High Court and courts below is clearly unsus-
    tainable in law. His primary contention is that the disconnection of supply
E   of electrical energy and the alleged consequential damages claimed by the
    respondent are not matters arbitrable under the provisions either of
    Electricity Act or Supply Act. Therefore, the invocation of fhe provisions
    in either of the Acts for reference is clearly without authority of law. He
    has taken us through the relevant provisions under the Acts which we
F   would refer during the course of the judgment. Shri M.S. Gujral, learned
    senior counsel for the respondent contended that illegal disconnection of
    supply of electricity energy to the appellant and resultant damages is a
    dispute arising under Section 19 of the Electricity Act since due to illegal
    disconnection, the respondent had suffered damages. As a consequence
    the respondent is entitled to compensation for such illegal act done by the
G   appellant. Therefore, it is a dispute arbitrable under the provisions of the
    Electricity Act and also the Supply Act. He also contended that though
    there is no agreement entered into between the appellant and the respon-           -·
    dent for arbitration as defined under Section 2( a) of the Arbitration Act,
    1940, by operation of Section 46 of the Arbitration Act read with Section
H   33 thereof, it would clearly give power to the civil court to decide whether
      PB. SfATEELECIRICITYBD. '· GURUNANAKCCWSfORAGEICEFACIORY            537

the matter would be arbitrable under the provisions of the Acts. The High A
Court accordingly recorded a finding that the civil suit is not maintainable
but the arbitrator is competent to decide the arbitrability of the dispute as
regards the damages caused to the respondent due to illegal disconnection
under Section 52 of the Electricity Act or Section 76(2) of the Supply Act.

       In view of the rival contentions, the question that arises is : whether
                                                                                 B
the view of the High Court is correct in law ? It is seen that the learned
sub-ordinate Judge had recorded a finding that the dispute is not arbitrable
under the provisions of either the Electricity Act or the Supply Act.
Consequently, the notice issued by the respondent for arbitration of the
dispute is illegal. However, on wrong premise of the arbitrability of the        c
dispute by the arbitrator under Section 33 suit was dismissed. As noted,
the High Court recorded that that dispute would be decided only in the
arbitration by operation of Section 33 or 32 and that the civil court has no
jurisdiction to go into the matter.

                                                                                 D
      The Electricity Act deals with grant of licences to the licensee for
supply of electrical energy to the consumer and erection of the electrical
lines etc. Part II deals with supply of energy. Section 7-A(l) deals with
determination of purchase price. Section 8 provides consequences for
non-purchase of undertaking and revocation of licence with consent of
licensee. Section 9 prohibits licensee from purchasing, or associating him-      E
self with, other licensed undertakings or transfer his undertaking. Section
10 deals with general power of Government to vary terms of purchase.

       Sections 12 to 18 deal with various types of works and Section 12
 empowers licensee to open and break up streets, railways and tramways.          F
 Section 13 speaks of notice to the owners undertaking new works. Sub-sec-
.tion (3) thereof provides that "[N]otwithstanding anything in this section,
 the licensee may, in case of emergency due to the breakdown of an
 underground electric supply-line, after giving notice in writing to the
 repairing authority or the owner, as the case may be, of his intention to do    G
 so, place an overhead line without complying with the provisions of sub-
 section (l)'. Section 14 provides for alteration of pipes or wires. Section
 15 gives power of laying of electric supply-lines or other work near sewers,
 pipes or other electric supply-lines or works. Section 16 gives power to the
 licensee to exercise any of the powers under the Act to open or break-up
soil or pavement of any street, railway or tramway, or any sewer; drain or       H
    538                  SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A tunnel. Section JS empowers to lay overhead lines. While exercising those
  or any of those powers and performing undertaken works, Section 19
  envisages that the licensee may in exercise of any of the above powers,
  cause as little damage, detriment or inconvenience as may be, and shall
  make full compensation for any damage, detriment or inconvenience
B caused by the licensee or by any one employed by the licensee. Sub-section
  (2) in that behalf provides that save in the case provided for in Section 12,
  sub-section (3), where any difference or dispute arises as to the amount or
  the application of such compensation, the matter shall be determined by
  arbitration. Similarly, Sections.21(4), 22, 14(3), 15(5), 16-(3), 22-A(2) and
  32 provide determination of the disputes by arbitration. If any of the
C disputes arise under the aforesaid provisions, obviously Section 52 of the
  Electricity Act provides for forum for arbitration which reads as under :

             "52. Arbitration.- Where any matter is, by or under this Act,
             directed to be determined by arbitration, the matter shall, unless
             it is otherwise expressly provided in the licence of a licensee, be
D            determined by such person or persons as the State Governm,,nt
             may nominate in that behalf on the application of either party; but
             in all other respects the arbitration shall be subject to the
             provisions of the Arbitration Act, 1940 (10 of 1940) :

E               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."

          A reading thereof would thereby clearly indicate that where auy
F matter is by or under the Act directed to be determined by arbitration, the
  matter shall, unless it is otherwise expressly provided in the licence of a
  licensee, be determined by such person or persons as the State Govern-
  ment may nominate in this behalf on application by either party; aud in all
  other respects, in furtherance of the arbitration, it shall be subject to the
  provisions of the Arbitration Act. It would, therefore, be clear that with a
G view to attract the provisions of the Electricity Act, the dispute shall be
  one of the disputes directed by or under the Act arbitrable by the arbitra-
  tion under the provisions of the Act. As seen, the Act expressly refers to
  the relevant provisions extracted hereinbefore where a dispute shall be
  arbitrable in an arbitration which attracts the provisions of Section 52 of
H the Electricity Act. Similarly, the Supply Act envisages that if arbitration
      PB. STAIBELECIRICITYBD. '·GURU NANAKOOLDSTORAGEICEFAClDRY            539

of any question or matter is required under Sections 19(4), 44(3) 55(3) and A
78-A(2). to b« referred to arbitration under Section 76(2) of the Supply Act,
such question or matter becomes arbitrable.

      It is, therefore, to be seen whether the dispute raised in this case is
arbitrable under any of the provisions of either the two Acts. As stated
earlier, the specific contention of Shri Gujral is that it is a dispute arising   B
under Section 19(1) of the Electricity Act for damages caused to the
consumer-respondent and that, therefore, it is arbitrable under Section 52
of the Electricity Act or Section 76(2) of the Supply Act. We are unable
to agree with the learned counsel.

      It is seen that the right to claim damages obviously is not to the
                                                                                  c
consumer to whom, though under the Electricity Act the licensee, on an
application made in this behalf, is under an obligation to supply the
electrical energy. The damages which ensued for disconnection is not a
dispute arising under Section 19(1) of the Electricity Act. The scheme of
Part II of the Electricity Act would be viewed in its operational perspective. D
It would indicate that if any damage is caused obviously to the owner of
the property or the person affected in execution of the works undertaken
as envisaged in Part II, the damages so ensued, unless agreed between
licensee· and the person affected, the dispute arisen under section 19(1)
would be arbitrable, by operation of sub-secti_on (2) of Section 19. of the E
Electricity Act.

      The question then is : whether the matter will be only referable to
arbitration as provided under Section 33 of the Electricity Act ? . The
contention of Shri Gujral is that by operation of Section 46 read .with
Section 33 of the Arbitration Act, the dispute would be arbitrable by an          F
arbitrator and the civil court is devoid of jurisdiction to decide the matter.
We find no force in the contention. It is true that Section 46 expressly
envisages that despite .the absence of an express arbitration agreement as
defined under Section 2(a) of the Arbitration. Act, if it is a dispute
statutorily arbitrable, Section 46 stands attracted except to the extent of the   G
provisions exclnded therein, i.e., Sections 6(1), 7, 12, 36 and 37. Section 46
reads as under :

         "46. Application of Act to statutory arbitrations. - The provisions
         of this Act except snb-section (1) of Section 6 and Sections 7, 12,
         36 and 37, shall apply to every arbitration under any other enact- H
    540                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A            ment for the time being in force, as if the arbitration were pursuant
             to an arbitration agreement and if that other enactment were an
             arbitration agreement, except in so far as this Act is inconsistent
             with the other enactment or with any rules made thereunder."

          Sections 6(1), 7, 12, 36 and 37 have been expressly excluded from the
B operation of statutory arbitration. The rest of the prm~sions per force
  would get attracted. But the provisions of the appropriate statute or rules
  should necessarily be consistent with the provisions of the Arbitration Act.
  In that event, despite absence of and arbitration agreement, rest of the
  provisions of Arbitration Act would apply (as if there was an arbitration
C agreement between parties) and the dispute becomes arbitrable under the
  Arbitration Act, as if there was an arbitration agreement between the
  parties. If there is any inconsistency, then the provisions of the Arbitration
  Act do not get attracted. Section 33 expressly gives power to the civil court
  to decide the existence or validity of the arbitration agreement or the award
D as such. If this question was to arise, necessarily the civil court would be
  devoid of jurisdiction to decide the dispute on merits but only in the forum
  of arbitration. The existence and validity of the arbitration agreement
  should be decided by the civil court. Arbitrator cannot clothe himself with
  jurisdiction. to conclusively decide it by himself as a jurisdictional issue. It
  is for the court to decide it. The dispute on merits should be resolved by
E the arbitrator and the legality of the award would be subject to decision by
  the court under Section 33.

          The question is : whether the dispute as to damages is arbitrable ?
    As stated earlier, Section 52 of the Electricity Act or 76(2) of Supply Act
F   read with Section 19(1) of Electricity Act has no application to the dispute,
    So, Section 52 of the Electricity Act does not get attracted; and equally
    Section 76(2) of the Supply Act. Therefore, it is not arbitrable under the
    statute. In view of the express admission made by the respondent that there
    is no agreement of arbitration as defined in Section 2( a) of the Arbitration
    Act, Section 33, therefore, does not get attracted. Section 46 does not apply
G   as the scheme under both the Acts in this behalf if inconsistent. The
    arbitrator cannot decide that question.

          Shri Gujral laid emphasis on the ratio of this Court in Punjab S.E.B.
    v. Bassi Cold Storage, [1994] Supp. 2 SCC 124, contending that the dispute
H   whether it is arbitrable itself would be decided by he arbitrator and that,
            · PRSTATEELECIRICITYBD. v. GURUNANAKaJlDSTORAGEICEFACIORY                 541

                therefore, the appellant having raised that question, it is not open to the A
                Board to contend th::.t it is not arbitrable. We find no force in the conten-
                tion. In that case, the question was whether the dispute was arbitrable or
                not. Though the question was given up in the trial court, the learned
                counsel appearing for the party had conceded that the question did arise.
                On that basis, notice was issued by the High Court and it was held that it
                                                                                              B
                was not arbitrable. But in this case,_ the question is : whether the notice
                issued by the respondent invoking the provisions of Section 52 and Section
                76(2) of the Electricity Act and the Supply Act respectively would get
                attracted ? In The Mysore State Electricity Board v. Bangalore Woolen,
                Cotton and Silk Mills Ltd. & Ors., [1963] Supp. 2 SCR 127, this Court had
                considered whether the dispute as regards revision of rates of tariff was C
                arbitrable under t_he provisions of the Acts. On an elaborate consideration,
                it was held that the dispute as regards revisfon of rates of tariff was not
                arbitrable. Similarly, a suit for damages for disconnection was filed and the
                question arose whether it was arbitrable. In Mysore Manufacturers &
                Traders v. State of Kamataka, AIR (1982) Karnataka 54, the learned Single D
            . Judge of the High court had held that the dispute was not arbitrable and,
       . ; , therefore,. the reference of the dispute under the provisions of the Atbitra-
         . • ·· tlOn Actwa5 riot available. This Court in Bassi's case (supra) had held that
                                                           ea
·· .· · ; .. the diSptite-for the arbitration for the damages used due to disconnection
                was not. arbitrable under either of the two Acts. In that view, the High
         ... · Coiirt and courts b~low were clearly in error in holding that the matter was E
                to be referred to arbitration and arbitrator had to decide the dispute as to
                arbitrability or on me.rits.' ·         ·

             . The appeal is accordingly allowed, but in the circumstances without
        costs. The decrees of all courts stand set aside and suit stands decreed as ·
        prayed for. No costs.                                                               F

        T.NA                                                           Appeal allowed.




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