Rattan Kumar Gupta vs Mahanagar Telephone Nigam Ltd.
1996 Latest Caselaw 242 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) The petitioner, in the present writ petition, is a telephone subscriber , having a telephone connection, bearing No. 538471, in his name, installed at his residence, situated at House No. 2, Road No. 55, Punjabi Bagh, New Delhi. The above said telephone was having Std facility. However, on the request of the petitioner, made by him vide letter dated 23.11.87, the Std facility was barred/withdrawn on 7.12.87 and since then there is no Std facility available to the petitioner on the above said telephone.

(2) The case of the petitioner is that he had been receiving the bills as per the meter reading and malting the payments of the same to the respondent regularly on due dates.

(3) It is alleged that for the call charges from 15.6.91 to 15.10.91 the petitioner received a bill from the respondent for 80,817 calls, amounting to Rs. 89,047.70. The petitioner approached the respondent and the Accounts Officer, Revenue West(III) vide order dated 20.12.91 directed the petitioner to make the payment of Rs 244.00 which was paid by the petitioner on 23.12.91. It is alleged that the representation made by the petitioner on 19.12.91 was considered by the respondent while holding the inquiry and directing the petitioner to make the payment of Rs 244.00 on the basis of the previous bills. It is further alleged that the petitioner thereafter also continued paying the bills from 15.10.91 to 15.8.94 i.e. for a period of 34 months and the total calls were 16,659 and the payments of all these bills were made by the petitioner to the respondent. It is alleged that on 29.10.94 the petitioner received the impugned bill- cum-notice of disconnection by which the petitioner was directed to make the payment of Rs 88,804.00 within seven days from the dates of the receipt of the bill failing which it was alleged that the telephone of the petitioner would be disconnected. The grievance of the petitioner in short is that bill No. AO(7F)538471 dated 17.10.94 (Annexure 'G') received by him on 29.10.94 is illegal, unwarranted, uncalled for, unconstitutional and unjust, being patently wrong and against the principles of natural justice and provisions of the Indian Telegraph Act, 1885(hereiriafter referred to as 'the Act'). It has been prayed that a writ of certiorari or directions be issued thereby quashing the impugned bill and a writ of mandamus/direction be issued directing the respondents not to recover the amount of the impugned bill and not to disconnect the telephone mentioned above.

(4) In the counter affidavit filed on behalf of the respondent Mtnl, preliminary objection with regard to the maintainability of the petition has been taken on the ground that the petition raises disputed questions of fact and the dispute raised in the petition is liable to be referred to arbitration under Section 7b of the Act and hence the petition is liable to be dismissed on the above grounds alone. On merits it is admitted that the petitioner has made payment of all the bills excepting the bill for the period from 15.6.91 to 15.10.91. It is contended on behalf of the respondent that for the period 15.6.91 to 15.10.91 on account of call charges, a bill was raised for Rs 89,047.70 but the petitioner was asked to make a provisional payment of Rs 244.00 on the basis of the average recorded in the previous bills by the Public Relation Officer and that the remaining amount in respect of that bill was kept under dispute pending inquiry by the department into the matter. It is further contended that after an elaborate inquiry, conducted by the Department, in respect of the alleged complaint of excessive billing for the period w.e.f. 15.6.91 to 15.10.91, it was found that the impugned bill was correctly raised by the Department on the basis of meter reading. The investigations, undertaken by the Department, as per the case of the respondent Mtnl, further revealed the fact that the petitioner had been making Std and Isd calls during the above said period apparently in connivance with the staff of the respondent. It is stated that it was on account of the calls made by the petitioner inside and outside the Country during the above said period that the bill to the tune of Rs 89,047.70 was raised against the petitioner and the petitioner was asked to deposit the entire amount vide impugned bill which was kept under dispute. The case of the respondent Mtnl is that the impugned bill/demand has been raised correctly on the basis of the number of calls recorded by the Department and it is incorrect that the impugned demand is either illegal or arbitrary. It is prayed by the respondent in the counter affidavit that the petition be dismissed with costs.

(5) The petitioner has filed a rejoinder and in reply to the preliminary objections it has been stated that no disputed questions of fact are involved and that in the facts and circumstances of the case Section 7-B of the Act has no application. On merits the petitioner has denied the contentions raised in the counter and has re-iterated the averments made in the petition.

(6) We have heard the learned counsel for the parties at length and have also carefully gone through the documents/material available on record. Further with a view to satisfy ourselves, we have called upon the respondent to produce the concerned records and the respondent accordingly has produced the same before us which we have also perused.

(7) During the course of arguments it was submitted by the learned counsel for the petitioner that as of date there is no 'dispute' between the petitioner and the respondent Mtnl because soon after the receipt of the bill/demand for the period from 15.6.91 to 15.10.91 raising a demand of Rs 89,047.70 for 80817 calls, the petitioner approached the respondent Mtnl and on the representation of the petitioner the Accounts Officer of the respondent Mtnl directed the petitioner to make the payment of Rs 244.00 vide order dated 20.12.91 which was paid by the petitioner on 23.12.91. According to the learned counsel for the petitioner with the payment of Rs 244.00 , which was made by him in pursuance of order dated 20.12.91, passed by the Accounts Officer of the respondent Mtnl, all disputes with regard to the above mentioned period and the above mentioned demand came to an end.

(8) The next limb of the arguments of the learned counsel for the petitioner was that as admitted by the respondent Mtnl in its counter the Std facility on the telephone in question, at the request of the. petitioner, was disconnected w.e.f. 7.12.87 and when there was no Std facility available on the said telephone after 7.12.87 how could the petitioner make Std calls from the said telephone during the period 15.6.91 to 15.10.91 ?

(9) As regard the first submission, made by the learned counsel for the petitioner that no dispute exists between the parties as on date, the same has failed to impress us because no doubt after the receipt of the bill/demand for Rs 89,047.70 the petitioner represented to the respondent Mtnl but to say that the 'dispute' was finally resolved and the respondent issued a final revised bill for Rs 244.00 for the above said period against the above said bill would not be factually correct. As per the case of the respondent Mtnl the bill for Rs 244.00 , issued under the orders of the Accounts Officer of the respondent Mtnl, was not the 'final bill' but was only a 'provisional bill', issued on the basis of average recorded in the previous bills subject to the final out come of the inquiry which was initiated on the basis of the representation made by the petitioner. The above fact is evident even from the documents filed by the petitioner. Document Annexure E, filed by the petitioner along with the petition, which is a photo copy of bill for Rs 89,047.70 for the period from 15.6.91 to 15.10.91, issued by the respondent Mtnl in respect of the telephone in question, bears an. endorsement under the signatures of Accounts Officer Telephone Revenue(West III) Mtnl, New Delhi to the effect that "Rs 88,804.00 kept under dispute vide C.R. item No. 415".

(10) In the presence of the above facts, it cannot be reasonably believed that all disputes stood finally resolved the moment Accounts Officer of the respondent Mtnl directed the petitioner to make a payment of Rs 244.00 and the moment the above said amount was paid by the petitioner to the respondent MTNL. In other words, the above payment made by the petitioner was 'provisional' subject to the final out come of the inquiry and thus the dispute continued to subsist between the parties even after making the above said payment by the petitioner t o the respondent MTNL.

(11) The second submission too in our opinion is without any substance because what is contended by the respondent is that the petitioner in connivance with the line staff of the respondent Mtnl got diverted the Std & Isd facility on the telephone in question unauthorisedly and availed of the above said facilities on the telephone in question resulting in increase in the bill. With a view to satisfy ourselves, we have perused the original records produced by the respondent Mtnl relating to the inquiry conducted in the matter by the vigilance staff of the respondent MTNL. After perusing the records we a inclined to agree with the contention of the respondent MTNL.

(12) The respondent Mtnl in their reply affidavit have taken a preliminary objection with regard to the maintainability of the petition keeping in view the provisions of Section 7-B of the Act. Section 7-B of the Act provides -

"(1)Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.

(2)The award of the arbitrator appointed under sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court."

(13) In the instant case, the claim arises out of the use of telephone and non-payment of the bill/demand for such use. In our opinion the legislative intent behind incorporation of Section 7-B of the Act seems to be that disputes relating to telephone lines, appliances or apparatus between the subscriber and the concerned authority should be arbitrated upon and finality has been attached to the award. The meaning, intent and scope of sub-section(1) of Section 7-B of the Act is wide in its sweep so as to include any dispute concerning telephone lines, appliances and apparatus within its fold. The bill in question relates to the user of the apparatus and, therefore, in our opinion the dispute in question is squarely covered within the intent and scope of Section 7-B of the Act.

(14) In view of the above discussion it is clearly established that a dispute within the meaning of Section 7 of the Act exists between the petitioner, a subscriber of telephone connection and the respondent, the MTNL. The question requiring consideration is as to what relief can be given to the petitioner in the facts and circumstances of the case more particularly when the dispute stands fully covered within the scope of Section 7-B of the Act involving disputed questions of fact. In this context the observations made by the Supreme Court in case Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Limited and others, reported as are of utmost significance. The Supreme Court in the above said case observed -

"ARTICLE 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situations, as for instance where the very virus of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Art. 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute."

(15) The Supreme Court in case C.A. Abraham Vs. Income Tax Officer Kottayam and another, reported as held that where other adequate remedy is open, jurisdiction under Article 226 cannot be invoked. In case Dlf Housing Construction(P) Ltd. Vs. Delhi Municipal Corporation and others, reported as , the Supreme Court held -

"IN our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course of the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved."

(16) Similar view has been taken by the Supreme Court in another case Jai Singh Vs. Union of India and others, reported as . In the above case, the Supreme Court, while holding that in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, the Supreme Court will not grant relief when the case involves determination of disputed questions of fact, held -

"THE High Court dismissed the writ petition on the ground that it involved determination of disputed questions of fact. It was also observed that the High Court should not in exercise of its extraordinary jurisdiction grant relief to the appellant when he had an alternative remedy. After hearing Mr. Sobhagmal Jain on behalf of the appellant, we see no cogent ground to take a view different from that taken by the High Court."

(17) In the present case too disputed questions of facts are involved such as whether the petitioner during the period from 15.6.91 to 15.10.91 used ISD/STD facilities on the telephone in question in connivance with the subordinate staff of the respondent Mtnl or whether the excess billing is due to some defect in the meter as alleged by the petitioner. All these disputed questions of fact stand fully covered within the scope of Section 7-B of the Act.

(18) In view of the above discussion, in our opinion, no relief can be given to the petitioner by this Court and the petition filed by the petitioner is, therefore, dismissed. However, the petitioner is given the liberty to raise a dispute in terms of the provisions of Section 7-B of the Act and on his doing so further action in pursuance of the above said provisions of the Act shall be taken by the respondent Mtnl in the matter.

(19) Before parting with the case we would like to observe that after perusing the records, made available to us by the respondent Mtnl for our perusal, we do not feel very happy with the state of affairs as reflected therein more particularly the alleged unauthorised use of ISD/STD facility by the petitioner in connivance with the subordinate functionaries of the respondent and we hope that the respondent Mtnl would take all necessary steps for setting its own house in order with utmost expedition.

(20) In the facts and circumstances of the case, no order as to costs.