1. The order under attack in this revision petition is the order passed by the District Judge under sub-sec. (3) of S. 16 of the Indian Telegraph Act, 1885, for short. The Telegraph Act. By this order the District Judge has determined the dispute concerning the sufficiency of compensation assessed by the Electricity Board under S. 10, Cl. (d). Sub-sec. (5) of S. 16 says, speaking of such an order, that it has to be final.

2. Construing S. 18(5) of the Kerala Buildings (Lease and Rent Control) Act, 1965 containing the word ‘final’ the Supreme Court in Aundal Ammal v. Sadasivan Pillai., (1987) 1 Ker LT 53 : (AIR 1987 SC 203) held:

“The language of the provision of S. 18(5) read with S. 20 inhibits further revision. To vest the High Court with such jurisdiction would be contrary to the scheme of the Act, would be contrary to the public policy and would be contrary to the legislative intention as manifest from the different sections of the Act”.

This principle enunciated by the Supreme Court made me ask the counsel for the petitioner as to how the revision under S. 115, C.P.C challenging the order which is to be final under sub-section (5) of S. 16, is maintainable.

3. Since the decision on this issue was likely to have far reaching consequences I made a general request to the members of the bar to assist the court to determine the issue. T.P Kelu Nambiar and P.K Balasubramoniam responded to the request and their learned argument reflecting their in depth study of the subject, to considerable extent helped me deliver this order.

4. Construing S. 16(3) of the Telegraph Act this Court in K.S.E Board v. C.G Narayana, AIR 1973 Ker 144 has held that an order made by the District Judge under sub-section (3) of S. 16 is revisable under S. 115, C.P.C This decision apparently has given a quietus to the issue; but on a reading of this decision it is clear that the learned Judge had no occasion to consider the scope and effect of sub-sec. (5) of S. 16, which says that the order, the District Judge would pass under sub-sec. (3), is to be final. The only question that was considered by the learned Judge was this: While discharging the functions under sub-sec. (3) of S. 16, was the District Judge functioning as a persona designata or as a Court? The learned Judge found that the District Judge was discharging the functions of a Court and since the District Court is a Court subordinate to the High Court, revision under S. 115 is maintainable. In the same strain is the decision of the Lahore High Court (which was followed by the learned single Judge) in Mian Abdul Aziz v. Punjab Government, AIR 1942 Lah 186.

5. I am well aware of the position in law that if the point now before me has already been determined by the learned Judge, then I am bound to follow the same; unless of course, I differ therefrom. In that event I have to refer the issue to a Division Bench. But this point in my view, has not been considered by the learned Judge and hence it is res integra, and therefore it is an open point. As observed by Lord Loreburn L.C in Kydd v. Watch Committee of City of Liverpool, (1908) AC 327 “the learning and the law laid down as to other acts of Parliament do not conclude the present case”.

6. I shall now read the relevant clauses of S. 10 and S. 16.

“10. The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immovable property:

Provided that—

……………..

(d) In the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in Cl. (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers”.

16(3). If any dispute arises concerning the sufficiency of the compensation to be paid under S. 10, Cl. (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.

(5). Every determination of a dispute by a District Judge under sub-sec. (3), or sub-sec. (4) shall be final:

Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same”. The sum and substance of these provisions is this: The dispute in regard to the sufficiency of the compensation, the Board is obliged to pay under S. 10 clause (d), on application of the aggrieved party, requires to be determined by the District Judge under S. 16(3). Determination of the dispute by the District Judge, sub-sec. (5) of S. 16 says, shall be final.

7. The word ‘final’ prima faice connotes that the order determining the compensation by the District Judge under S. 16(3) is conclusive; that means there is to be an end of the enquiry in regard to the said matter at the level of the District Judge.

8. The learned counsel Sri. T.P.K Nambiar, as amicus curiae, however, argued that when a dispute is stated to be referred to an established Court, the ordinary incidents of the procedure of that court are available and the orders of that Court are appealable or in any event, revisable at the instance of the aggrieved party provided the said procedure provides for that, notwithstanding that the legal rights agitated before that court arise under a special statute which does not in terms confer a right of appeal or revision. This position in law no doubt is beyond dispute. The following observations discernible from the decision of the Privy Council, Adaikappa Chettiar v. Chandrasekhara Thevar, AIR 1948 PC 12, is relevant in the context:—

“Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal”.

(See also Secretary of State for India v. Chellikani Rama Rao, AIR 1916 PC 21, N.S Thread Co. v. James Chadwick and Bros., AIR 1953 SC 357 and National Telephone Co. Ltd. v. Postmaster General, 1913 AC 546).

To put it pithily, when a question is stated to be referred to an established Court without more, it imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal. The Civil Procedure Code which controls the function of the District Court, thus becomes relevant. The learned counsel Sri. T.P.K Nambiar nontheless concedes that no appeal challenging the order under S. 16(7) is possible because the said order is neither a decree within the meaning of S. 2(2) C.P.C nor an appealable order coming under O. 43, R. 1. But according to him this order though made final by the Telegraph Act, can be revised under S. 115, C.P.C because the District Judge who passed the order is a Court subordinate to the High Court. In support of this argument he relied on the decision of the Supreme Court in Chhaganlal v. Indoor Municipality, AIR 1977 SC 1555. The Supreme Court, however, in a recent decision in Aundal Ammal v. Sadasivan Pillai., (1987) 1 Ker LT 53 : (AIR 1987 SC 203) was not prepared to accept the said principle and revise the order of the District Judge passed in exercise of the revisional jurisdiction under S. 20, of the Kerala Buildings (Lease and Rent Control) Act. This principle is based on the dictum stated by the House of Lords, discernible from the decision in Kydd v. Watch Committee of City of Liverpool, (1908) AC 327. Relevant portion from the judgment is extracted hereunder:—

“In Kydd v. Watch Committee of City of Liverpool, (1908) AC 327 at 331-332, Lord Loreburn LC, construing the provisions of S. 11 of the Police Act, 1890 of England which provided an appeal to quarter sessions as to the amount of a constable's pension, and also stipulated that the Court shall make an order which would be just and final observed:

“Where it says, speaking of such an order, that it is to be final, I think it means there is to be an end of the business at quarter sessions…..”.

The said observation could most appropriately be applied to the expression used by the legislature in sub-sec. (5) of S. 18 of the Act in question. It means what it says that subject to the decision of the appellate authority, the decision of the Rent Controller shall be final and could only be questioned in the manner provided in S. 20 and in no other manner. The intention of the legislature in enacting the said Act is clear and manifest from this section and the scheme of the Act, that is to say, to regulate the leasing of buildings and to control the rent of such buildings and to provide a tier of Courts by themselves for eviction of the rented premises. This is writ large in the different provisions of the Act. This Court, referring to the aforesaid observations of Lord Loreburn, L.C in the case of South Asia Industries Private Ltd. v. S.B Sarus Singh, (1965) 2 SCR 756 observed at page 766 : AIR 1965 SC 1442 at p. 1447 of the report that the expression “final” prima facie meant that an order passed on appeal under the Act was conclusive and no further appeal lay……”.

9. A reference in this connection to the law stated in Swarup Singh's case, AIR 1965 SC 1442 is indispensible. The four Judges bench of the Supreme Court in this case while considering the scope of S. 43 of the Delhi Rent Control Act, observed that the expression ‘final’ in the first part of the Section prima facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it. Considering the scope of the last sentence in that Section (Sec. 43) namely, “shall not be called in question in any original suit, application or execution proceeding” the Supreme Court further observed that it does not restrict the scope of the expression “final” in the first part of the section. This aspect has been explained by the Supreme Court thus:

“The expression ‘final’ in the first part of S. 43 of the Act puts an end to a further appeal and the words “shall not be called in question in any original suit, application or execution proceeding” bar collateral proceedings. The section imposes a total bar”.

Accordingly Supreme Court held that the correctness of the order cannot be challenged by way of appeal or by way of collateral proceedings. While holding so the Supreme Court has noted with approval the decision of the House of Lords in Kydd's case, (1908 AC 327).

10. As already stated the Supreme Court in Chhagan Lal's case, (AIR 1977 SC 1555) has stated that the decision of the District Court under S. 149 of the Madhya Pradesh Municipal Corporation Act, 1956, though shall be final, is revisable, under S. 115, C.P.C as the District Court is a Court subordinate to the High Court. On the other hand in Aundal Ammal's case, (AIR 1987 SC 203) the Supreme Court relying on a four Judges bench ruling in AIR 1965 SC 1442 has taken a contrary view. Again in Shyamaraju Hegde v. Venkatesha Bhat, (1987) 2 Ker LT 977 : (AIR 1987 SC 2323), a later decision, the Supreme Court relying on Chhanan Lal has held that the order of the District Judge under S. 50 of the Karnataka Rent Control Act, though final is revisable under S. 115, C.P.C I am thus confronted with what Lord Goddard C.J described in Younghusband v. Luftiq, (1949) 2 KB 354 a ‘complete fog’ of authorities or what Upjohn J. called in Smeaton v. Ilford Corporation, (1954) Ch 450 at p. 478, a “rough sea of contradicatory authority”. The question therefore is, which ruling shall I follow in the circumstances? The Supreme Court has resolved this problem thus:—

“The proper course for a High Court is to try to find out and follow the opinions expressed by larger benches of the Supreme Court in preference to those expressed by smaller benches of the Court. That is the practice followed by the Supreme Court itself. The practice has now crystallised into a rule of law declared by the Supreme Court. If however, the High Court is of opinion that the views expressed by larger benches of the Supreme Court are not applicable to the facts of the case it should say so giving reasons supporting its point of view”.

(See Union of India v. K.S Subramonian, AIR 1976 SC 2433, Amar Singh Yadav v. Shanti Devi AIR 1987 Pat 191). The decision in Aundal Ammal's case, (AIR 1987 SC 203) following a four-Judge bench decision in my judgment, thus holds the field. That means an order which is to be final under a section, cannot be revised under S. 115, C.P.C

11. The principles that emerge from the above decisions are: The word ‘final’ in a section prima facie meant that an order passed under that section was conclusive and no further appeal lay. Whether such an order can be challenged by filing an appeal or revision depends upon the scheme of the Act. (See also the decision of the Supreme Court in Vishesh Kumar v. Shanti Prasad , AIR 1980 SC 892.) The learning and the law laid down as to other Acts are of little help or assistance in construing the word ‘final’ contained in a particular enactment. (See Kydd's case, (1908 AC 327)). The observations in Chhaganlal's case, (AIR 1977 SC 1555) that the order, of a Court subordinate to the High Court is revisable although the said order is to be final under the Act, are in conflict with the decision in Aundal Ammal's case, (AIR 1987 SC 203) and since the decision in Aundal Ammal's case is based on a decision of a larger bench, the High Court is bound to follow the said decision in preference to the decision in Chhaganlal's case.

12. The acceptance or otherwise of the argument of the counsel stated in para 8 supra therefore depends upon the interpretation of the relevant sections of the Telegraph Act.

13. The learned counsel Sri. P.K Balasubramoniam while endorsing the arguments of Sri. T.P.K Nambiar added that the entire proceedings under S. 16(3) of the Telegraph Act is sought to be limited to a two tier system, namely, proceedings before the Electricity Board and a petition to the district Judge challenging the correctness of the decision of the Board. In such cases to recognise a right to approach the High Court under S. 115 is reasonable although the order sought to be revised, is to be final under sub-sec. (5) of S. 16 Telegraph Act. According to the learned counsel, based on this principle, the Supreme Court in Shyamaraju Hegde v. Venkatesh Bhat, (1987) 2 Ker LT 977 : (AIR 1987 S.C 2323) has found that the High Court has power to entertain revision under S. 115, C.P.C against the revisional order of the District Court under the Karnataka Rent Control Act. In support of this argument the learned counsel cited a later decision of the Supreme Court in Jethabhai v. Sunderdas Rathenbai, (1988) 1 Ker LT 386 : (AIR 1988 SC 812) also. It is true that in these decisions, the Supreme Court has touched upon these aspects also. However, the conclusion is based on the scheme of the Act. These observations cannot be called the ratio decidendi. It should in this context be remembered that “any judgment of any court is authoritative only as to that part of it, called the ratio decidendi…..”. (See Allen Law in the making). Those observations or opinions made in the decision, and which are only incidental to the real issue, are only of collateral relevance and as such they cannot be said to be ratio of the decision. Such observations will not have any binding force as in the case of a ratio. It may perhaps be one of the aspects that may help the construction of a Statute. Whatever that be, in order to decide the issue one has to look at the Act itself, subject-matter and language together. A reference in this connection to the following observations of Lord Loreburn in Kydd's case, (1908 AC 327) is relevant:—

“The learning and the law laid down up to other Acts of Parliament do not conclude the present case. We must look at the Act itself, subject-matter and language together, in order to find whether or not the Court of quarter-sessions can pass on to the Court of law, by asking advice or by inviting decisions, these particular duties”.

In the light of what is stated above it should be held that the above argument of the counsel is not sustainable.

14. Having understood the principles thus, let us see the scheme of the Telegraph Act in regard to the determination of disputes in respect of matters falling under S. 10(d) of the said Act. Sub-sec. (d) provides that the authority concerned shall do only as little damage as possible while exercising the powers under Clauses (a) and (b) in regard to the drawing of lines etc. over the property belonging to private persons and when they exercise those powers in respect of such property they are obliged to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. The expression “as little damage as possible” in clause (d) of S. 10 indicates the comparative smallness of the matter to be settled and that was probably the reason why the Legislature did not leave the question as regards the sufficiency of compensation for such damage to the ordinary litigation envisaged under the C.P.C Yet, the aggrieved party is given a chance to agitate his rights before a judicial forum, and with that in view, in my judgment, S. 16(3) of the Telegraph Act is enacted. This section has conferred the said power on the highest judicial forum constituted under the Civil Courts Act. From these circumstances it can be inferred without the fear of contradiction that the legislature has deprecated a litigation in the literal sense of that expression; instead a less cumbursome but at the same time not a summary mode of litigation, to settle the dispute has been prescribed. A reference in this connection to the proviso to sub-sec. (5) is relevant. This proviso recognises the right of a person to recover by suit the whole or any part of any compensation paid by the Board in terms of the order passed by the District Judge under sub-sec. (4), from the person who has received the same. This proviso thus makes it further clear that the legislature intended the order under sub-sec. (3) to be final in the sense that there is to be an end of the business at the hands of the District Judge. The Telegraph Act thus is a self-contained one and the intention of the legislature, in my judgment, was to provide an exhaustive Code for disposing of; the claim for compensation arising under S. 10(d). When the language of S. 16(5) is closely examined, I think, it speaks that the District Judge was meant to dispose of the issue finally. Considering the scope of a similar provision in the Police Act, 1890 (53 and 54 Vict. C. 45) Lord Loreburn in Kydd's case, (1908 AC 327) has observed thus:—

“I do not wish to express any opinion as to other Acts containing different words; and indeed the process of reasoning that because one set of words means one thing in one context other words or the same words in a different context must necessarily mean the same thing is often vexatious and fruitless. I Confine myself to this particular clause. When it says, speaking of such an order, that is to be final, I think it means there is to be an end of the business at quarter sessions…….”.

This principle squarely applies here. And if that be so, the arguments of the counsel that the order of the District Judge under S. 16(3) which is to be final within the meaning of sub-sec. (5) is revisable under S. 115, C.P.C is liable to be rejected.

15. Ever since the decision of this Court in C.G Narayanan's case (AIR 1973 Ker 144) this Court has been entertaining revisions against the order of the District Judge under S. 16(3) Telegraph Act and therefore that decision shall be allowed to stand, counsel Balasubramoniam argues. The argument in the light of the decision of the Supreme Court in Jethabai's case (AIR 1988 SC 812) is liable to be rejected. Here it is relevant to note that this Court in that decision has not considered the scope of sub-section (5) of S. 16 of the Telegraph Act.

16. The C.R.P therefore is not maintainable. Accordingly the same is dismissed.

Before I part with this order I would like to place on record my appreciation of the commendable assistance rendered by T.P Kelu Nambiar and P.K Balasubramanyam as amicus curiae, in deciding the issue.

Petition dismissed.