Kerala High Court · 2012

THOTTATHIL B.RADHAKRISHNAN&C.T.RAVIKUMAR, JJ.-----------------------------------Arb.A.No.1 of 2012 ------------------------------------Dated this the 1st day of August, 2012JUDGMENT Thottathil B.Radhakrishnan,J.C.R.1.Appellant is a consumer of BSNL, governed by theprovisions of the Indian Telegraph Act, 1885. Disputesraised by him were determined by arbitration in terms ofsection 7 B of that Act. He challenged that award invokingsection 34 of the Arbitration and Conciliation Act, 1996, forshort, the “A&C Act”. The court below held, inter alia, thatunder sub-section 2 of section 7 B of the Telegraph Act, theaward passed under that Act is final and conclusive betweenthe parties and cannot be called in question in any court andtherefore, the appellant’s application under section 34 of theA&C Act is not maintainable. Hence this appeal. Arb.A.1/1222.Heard the learned counsel for the appellant, the learnedstanding counsel for BSNL and the learned SeniorGovernment Pleader. 3.Sub-section (5) of Section 2 of the A&C Act provides thatsubject to the provisions of sub-section (4), and save in sofar as is otherwise provided by, inter-alia, any law for thetime being in force, Part I of the A&C Act shall apply to allarbitrations and to all proceedings relating thereto. Section2(4) of that Act enjoins that Part I, except sub-section (1) ofSection 40 and Sections 41 and 43, shall apply to everyarbitration under any other enactment for the time being inforce, as if the arbitration were pursuant to an arbitrationagreement and as if that other enactment were anarbitration agreement, except in so far as the provisions ofthat Part are inconsistent with that other enactment or withany rules made thereunder. If the provisions of that otherenactment or rules thereunder are consistent with theprovisions of the A&C Act, despite absence of an arbitration Arb.A.1/123agreement, rest of the provisions of A&C Act would apply, asif there was an arbitration agreement between the partiesand the dispute becomes arbitrable under the A&C Act, as ifthere was an arbitration agreement between the parties. Ifthere is any inconsistency, then the provisions of the A&CAct do not get attracted. Section 34 of the A&C Actprovides for recourse to a court against an arbitral award byan application for setting aside the award in accordancewith sub-section (2) and sub-section (3) thereof. 4.Section 7-B of the Telegraph Act provides for arbitration ofdisputes. Sub-section (1) thereof enjoins that the disputesstated therein shall be determined by arbitration in terms ofthe regulatory finer provisions contained in that provision.Sub-section (2) provides that the award of the arbitratorappointed under sub-section (1) shall be conclusive betweenthe parties to the dispute and shall not be questioned in anycourt. Arb.A.1/1245.Now, it is apposite to refer to the decision of the Hon'bleSupreme Court of India in Aundal Ammal v. SadasivanPillai [(1987) 1 SCC 183]. Dilating on a provision whichused the legislative tools “shall be final” and “shall not beliable to be called in question in any court of law”, it was laiddown that the expression “shall be final” means what it says.To hold so, the precedent in Kydd v. Watch Committee ofCity of Liverpool [(1907) 2 KB 591] was noted to the effectthat when a decision is stipulated to be final, it is to be finaland it means that there is to be an end of the business inthat regard. Considering the phrase “shall be final” and“shall not be called in question”, the Hon'ble Supreme Courtof India in South Asia Industries Pvt. Ltd. v. S.B.SarupSingh [AIR 1965 SC 1442] held that such provision puts anend to a further appeal and bars other proceedings,including collateral. 6.As already noted, the prescription in section 7-B(2) of theTelegraph Act is that the award of the arbitrator appointed Arb.A.1/125under sub-section (1) shall be conclusive between theparties in dispute and that it shall not be questioned in anycourt. Where the term “conclusive” is used in a statute withreference to decisions of an authority, it cannot bequestioned by appeal or otherwise, unless, of course, it isgiven in disregard to jurisdiction and therefore a nullity.For support see Waterhouse v. Gilbert [(1885) 15 QBD569], Bryant v. Reading [(1886) 19 QBD 128] and Lyon v.Morris [(1887) 19 QBD 139]. 7. If the legislature states that the decision or order shall befinal and conclusive, that would not fetter the remediesavailable under the Constitution. But, it definitely inhibitsrecourse to jurisdiction which gets excluded by thatprovision. Therefore, excepting to the extent of remediesthat may be available under the Constitution, that is to say,in writ jurisdiction, the award would be conclusive. It cannotbe questioned through an application under A&C Act. Arb.A.1/1268.When the A&C Act clearly says that it would operate inrelation to arbitrations under other statutes, only in so far asthe provisions of Part I of the A&C Act are not inconsistentwith that other enactment, it contains the legislativerecognition of the existence of provisions like sub-section (2)of section 7-B of the Telegraph Act, which curtail recourse toany remedy by calling in question the award in any court.When a statute says that a decision thereunder shall beconclusive between the parties and shall not be questionedin any court, it is trite that such decision shall not be liableto be so questioned. Such prohibition is a completeinhibition against recourse to, or, remedy under, any otherstatute law. So much so, the provision in sub-section (2) ofsection 7-B of the Telegraph Act which gives the awardunder that Act such finality that would remain conclusivebetween the parties and that it shall not be questioned inany court is a provision in that enactment inconsistent withthe provisions of Part I of A&C Act. Arb.A.1/1279.For the aforesaid reasons, the provisions of A&C Act wouldnot apply to arbitration under the Telegraph Act. Hence theimpugned order dismissing the appellant’s application undersection 34 of the A&C Act does not warrant interference. In the result, this appeal is dismissed. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- C.T.RAVIKUMAR, Judge.kkb.