A.N. Pandey vs Mahanagar Telephone Nigam Ltd.
1995 Latest Caselaw 853 Del

JUDGMENT

R.C. Lahoti, J.

(1) The petitioner is a subscriber of Telephone No.6864267 installed at the residence of the petitioner at X-2, Green Park, New Delhi. In the month of November, 1993, the petitioner received two bills respectively for Rs.5,40,529.00 and Rs.10,12,053.00 which were exorbitant according to the petitioner. He raised a protest whereupon he was supplied with detailed bills. It was revealed that the bills included charges for certain calls having been made to Hong Kong during night time. The telephone connection was disconnected for failure of the petitioner to pay the bils. On 2nd May, 1994, the present petition has been filed seeking withdrawl/cancellation/quashing of the demand raised by the above said two bills, directing an enquiry to be held by Cbi in respect of calls made and restoration of the telephone connection.

(2) In response to the notice issued to the respondent-MTNL it has been stated that the bills are correct; that there is no tempering with the telephone of the petitioner; that the Std facility enjoyed by the petitioner has dynamic locking system which is operated by feeding a secret code known to none else than the petitioner or his family members. The dynamic Std locking facility excludes the possibility of any unauthorised use or tempering by any outside user or by Mtnl staff. On a complaint made by the petitioner, it was found that the petitioner did feed the secret code for dynamic locking of Std facility and was operating the code. It was found that there was no defect in the meter which was showing the billing correctly. The details of billing cycles dated 1.9.93 and 1.11.93 show a heavy use of telephone by the petitioner at the called stations and repetitive in nature. In between the disputed calls there were other Isd calls not disputed. It cannot be said that the calls were made by someone else.

(3) How the hearing in this petition has travelled in this Court and a few events which have taken place during the pendency of the petition deserve to be noticed in a bit little details as the same would have a material bearing on the final decision in the writ petition.

(4) On 19.5.94, it was stated in the Court on behalf of the petitioner that the only other members of the family living with the petitioner are his wife and a son; the son having recently completed the education and taken up employement elsewhere. On 24.5.94, the Court directed that new Telephone No.6858080 (installed in the very same premises in the name of petitioner's son) shall not be disconnected only on the ground of there being a demand in dispute in respect of telephone No.6864267.

(5) On 31.10.94, this Court, by passing a detailed order, directed the allegations made by the petitioner to be investigated into by the Central Bureau of Investigation. The court was pursuaded into making such an order because it was revealed that the telephone calls from the petitioner's telephone number were made to Hong Kong and Usa at places of ill repute. The Court was informed that the petitioner was 75 years old and his son was 18 years of age while the spells of each telephone call sometimes ran up to one and a half to two hours at odd hours and therefore it was wholly unlikely that the petitioner or his son could have indulged into making such telephone calls. The Court was pursuaded not to hold the petitioner bound to the alternate remedy of raising a dispute for adjudication by arbitration under Section 7-B of the Indian Telegraph Act, but to order an enquiry by an investigating agency - it being a `very rare case'.

(6) The result of investigation conducted by Cbi has been filed in the Court Along with its covering letter dated 4.7.95. The gist of the findings of the Cbi running into 9 pages is as under :- (I)THEcontention of the petitioner that he is 75 years old and his only son (living with him) is 18 years old is palpably false. The petitioner was aged (about) 50 years having his eldest son of the age of (about) 35 years, a second son aged 17 and a third son aged 14. He has also one daughter of the age of 22 years. This was as per ration card. Enquiries have confirmed that the petitioner was having at least two sons and a daughter respectively aged 23, 20 and 28 on the date of filing of the petition. (ii)the family is having two passports one belonging to the petitioner himself and second to his son Navendu Pandey. (iii)the entries in the passport of Navendu Pandey show that he was cleared for a trip to Hong Kong from 30.11.93 to 29.12.93, which trip was got cancelled. He then visited Hong Kong from 20.5.94 to 19.6.94 and again from 24.12.94 to 23.1.95. He had also got immigration clearance for a visit in 1993. Thus the petitioner's son does have connections and something to do in Hong Kong. (iv)Enquiry/investigation having been conducted to ascertain if there could be any pilferage/tempering with dynamic STD/ISD facility, it was revealed that the same was not possible. An unauthorised tempering would result the facility being permanently locked subject to restoration by the consumer on payment of certain charges whereafter the customer could feed a fresh code number known to him only. (v)Petitioner did not extend his full cooperation in the inquiry as desired and inspite of repeated requests the petitioner did not allow his second son Navendu Pandey to appear before the Investigating Officer on one pretext or the other. (vi)The calls relatable to the period under dispute having been scrutinised, it was detected that besides calls to foreign countries Std calls within the country were made mostly to Varanasi, the home place of the petitioner. The petitioner has got another phone in the name of his son Navendu Pandey at the same address. From that phone also the Std calls have been made to the same numbers of Varanasi and the bills have been cleared. (vii)Calls to foreign countries have been in between the calls to Varanasi and sometimes the calls to foreign countries and Varanasi are in such close proximity that there could be no chance of possible misuse. A few instances showing such proximity of time between the disputed and the amditted calls have been set out in the report. (viii)When the admitted calls were being made if someone was tempering with the petitioner's line then in view of the close proximity of time, the petitioner would have immediately noticed the same as during the time of unauthorised use, the petitioner's phone would remain held-up. The petitioner would have then made a complaint but there was none. (ix)The petitioner appears to have made a ruthless and heavy use of STD/ISD facility available on his telephone in the background of another telephone being available in the name of his son and under an impression that non-payment of huge demand against one telephone would result into disconnection of that telephone alone.

(7) On filing of the report by the Cbi, the petitioner and his counsel were noticed. On 9.8.95 and 24.8.95 the petitioner took adjournments. On 5.9.95 the petitioner has filed an affidavit trying to explain the conduct of the petitioner during the investigation conducted by the Cbi qua the dispute raised in the petition. It is submitted that the Cbi was harassing the petitioner's son especially when in the month of April, there was a marriage in the family of the petitioner and inspite of the petitioner and his family members willing to cooperate, the Cbi has given a false report without conducting the investigation on correct lines.

(8) The least that can be observed about such an explanation offered by the petitioner is that it is afterthought one. If only the Cbi was harassing the petitioner and his family members, the petitioner should have rushed to the Court and sought for directions to the Cbi which having not been done, we are not prepared to accept - even for a moment - the petitioner's affidavit dated 5.9.95 and the explanation offered therein.

(9) At this stage, it is an admitted fact between the parties that the disputed calls have been made to places of ill repute wherefrom the person calling gets recorded voice dealing with sex. During the course of hearing, the learned counsel for the respondent has informed the Court that the recorded voice available from the numbers called is so catching and tempting that the person calling goes on hearing the recorded sound/voice unmindful of the time consumed by the calls. It is also stated by learned counsel for the respondent that in view of the inherent mischievousness in such calls the Mtnl has now banned calls being made to such numbers.

(10) On the facts found consequent to the investigation conducted by Cbi, we are satisfied that the petition is not only devoid of any merit, but is also an abuse by the petitioner of the writ jurisdiction of this Court. The court was pursuaded in entertaining the petition for hearing and directing Cbi investigation on such statements made before the Court as have been found to be factually incorrect. But for the statements made by and on behalf of the petitioner the Court might have refused to entertain the petition leaving the petitioner to avail the efficacious alternative remedy of adjudication by arbitration under Section 7-B of the Indian Telegraph Act. The pendency of this writ petition has also resulted in the respondent-MTNL being deprived of its right to recover the amount of bills under challenge by persuing such remedy as is available to it under the law.

(11) For the foregoing reaons, we are of the opinion that the petition not only deserves to be dismissed but the petitioner also deserves to be saddled with costs and exemplary costs.

(12) The petition is dismissed with costs quantified at Rs.10,000.00 . Out of the amount of costs recovered from the petitioner, an amount of Rs.5000.00 shall be paid to the respondent-MTNL and an amount of Rs.5000.00 shall be paid to Legal Aid & Advice Board, Delhi High Court Lawyers Chambers, New Delhi. Order accordingly.