Brahm Prakash Bansal And Anr. vs Union Of India And Anr.
1991 Latest Caselaw 687 Del

JUDGMENT

B.N. Kirpal, J.

(1) The challenge in this writ petition is to the decision of the respondents contained in its letter dated 2nd May, 1991 wherein it had been decided that uniform rate of commission will be paid to all the hirers/franchisees of S.T.D. local Pay phones, they will be entitled to retain the same by way of commission 20 paise per unit call up to 10,000 calls in a month and 10 paise per unit call thereafter in that month.

(2) The grievance of the petitioners is that their application for grant of franchise was approved prior to 2nd May 1991 and at that time the commission payable was 20 paise per unit call for all the calls.

(3) There was an advertisement in the newspaper in February 1991 announcing the franchise scheme for Telecom Centres. It is mentioned in this advertisement that a commission of 20 paise per unit call can be renamed by the franchise bolder. There is a note in this very advertisement to the effect that the respondents inter alia reserve the right to prescribe or change the share payable to the Agency. It also retains the right to fix the upper limit for the rates chargeable from the customers or for the various services run from the Telecom Centre.

(4) In the present case it is further admitted that when the agreement was signed by both the parties, revised rates were incorporated in the agreement. The submission of the petitioners is that this was under duress. It is further contended by learned Counsel for the petitioners that the rates now revised on 2nd May, 1991 were in fact the rates which had been decided in 1989 and there is no reason when why the rate was first revised to 20 paise per unit as per the said advertisement and thereafter reduced. It is also contended that this advertisement is against the decision of the Government of 1989 and the petitioners were misled.

(5) In our opinion there is no merit in this writ petition. There is a letter of 1st September 1989 which has been placed on record wherein the rate of 20 paise per unit call for first ten thousand calls, ten paise for 10 to 15 thousand calls, and 5 paise for beyond 15 thousand calls in a month is indicated. Be that as it may what was held out in the advertisement was that there can be a variation in the commission for per unit paise payable to the franchisees. Therefore, it is evident that in February 1991 there was a change in the position by the respondents and more favorable rates of commission were indicated. What is important is that in the advertisement itself the respondents reserved the right to revise the commission payable to the franchisees. Furthermore in attachment 'A' to the agreement which was entered into between the parties, there is a specific clause being clause No. 2 which inter alia states as follows:- "HOWEVER,it is made clear that the operating agencies share as well as aforesaid charges of Re. 1.00 per unit are subject to variation from time to time by the Govt. and in case the Govt. changes the charges per unit, the operating agency will be charged at the revised rate per unit. The share of the Operating Agency will also be decided by the Govt./MTNL at the time of revision."

(6) This also gives the right to the respondents to vary the share of the Operating Agency. We are unable to agree with the learned Counsel for the petitioners that this right is available only in the event of revision of the unit charges. This clause does give right to revise the operating agency's share as well as the right to revise the unit charges consequent upon which more money will have to be paid to the respondents by the franchise holders who, in turn, will be Realizing more unit charges from its customers. Be that as it may, what is clear is that in the agreement as well as in the advertisement it was specified that the respondents have the right to revise the agency share of commission. In fact what is being placed on record before us as Annexure 'A', which we have adverted to, is only a draft agreement which was available before 2nd May, 1991 because it is an admitted case that the agreement which is actually signed by both the parties, contains the revised rate. The agreement was signed on 11th June, 1991 by both the parties and the telephone was energized on 2nd July, 1991.

(7) It is contended that principles of promissory estoppel are attracted. The petitioner was misled incurring expenditure in the belief that he will get on his expenditure return of 20 paise per unit. At the Bar it has been indicated that about three and half lacs of rupees have been spent by the petitioners and this money would not have been spent if it was known that the share would be decreased. We are not impressed by this argument. There was no promise which was held out to the petitioners that the rate of twenty paise per unit will not vary. On the contrary it was specifically provided in the advertisement that the rate could be varied, this was a clause of an agreement which must have been examined by the petitioners and became a clause of the contract when the parties entered into a formal agreement.

(8) In our opinion, no illegality has been committed by the respondents in the present case in revising the rate of the charges. This writ petition is dismissed. Interim orders are vacated.