The Chief General Manager, Mtnl vs The State Disputes Redressal ...
2003 Latest Caselaw 513 Del

JUDGMENT

S.K. Mahajan, J.

1. Respondent No. 2 was the subscriber of telephone line bearing No. 235023. This telephone was installed in the name of respondent No. 2 at 8/6, Alipur Road, Delhi on 29.8.1980. The telephone line was disconnected for more than a dozen times by the petitioner for non-payment of the bills. On most of the occasions one Mr. L.D. Gupta on behalf of the subscriber of the telephone made representations for reconnection of the line. On an inspection alleged to have been carried out by the petitioner of the premises 8/6, Alipur Road, Delhi, it was found that the subscriber was not residing in the premises and it was only Mr. L.D. Gupta and his family who were residing therein. Notice was, accordingly, sent to the subscriber about the misuse of the telephone line and he was given an opportunity to shift the telephone line to his own premises. By letter dated 16.4.1991, respondent No. 2 was informed that because of the misuse of the telephone further action was contemplated against him. He was also informed about the provision for third party transfer of the telephone line on payment of necessary fee. Telephone was disconnected for unauthorised use w.e.f. 17.5.1991.

2. In the meantime, respondent No. 2 had filed a complaint before respondent No. 1 challenging the notice dated 5.3.1991 whereby the petitioner was informed about the misuse of the telephone line. On notice being served upon the petitioner, reply was filed. Parties ultimately agreed before the Commission to refer the dispute to the arbitrator appointed by the respondent. In terms of the agreement between the parties, an arbitrator was appointed and on 28.5.1992, the arbitrator passed his award holding that the telephone line in the name of respondent No. 2 was being misused by respondent No. 1 and the petitioner was, therefore, justified in disconnecting the telephone line. It was held by the arbitrator that respondent No. 2 was neither residing at 8/6, Alipur Road, Delhi where the telephone line was installed nor he was carrying on any commercial activity from the said premises and his telephone line was, therefore, misused by another person, namely, Mr. L.D. Gupta. The arbitrator, held that the telephone line in the name of respondent No. 2 cannot be used by Mr. L.D. Gupta and if respondent No. 2 wanted to restore and use the telephone line, he will have to get it shifted at his own premises and will have to pay rent for the intervening period of disconnection.

3. The award of the arbitrator was challenged by respondent No. 2 by filing a writ petition in this Court. The writ petition was dismissed by the Court by its order dated 19th June, 1992. On such petition being dismissed, respondent No. 2 filed a complaint before respondent No. 1 not only challenging the award but also seeking restoration of the telephone line. By the impugned order, respondent No. 1 has now directed the petitioner to install the telephone line in the premises from where it was disconnected, namely, 8/6, Alipur Road, Delhi on the ground that respondent No. 2 has since taken the premises on lease and there was thus no reason as to why the telephone line should not be restored in the said premises. The order of the commission has now been challenged by the petitioner by filing the present writ petition.

4. The contention of learned counsel for the petitioner is that the award of the arbitrator could be challenged only by filing a writ petition in this Court and respondent No. 1, therefore, did not have jurisdiction to entertain the complaint of respondent No. 2 either to set aside the award or to modify the same. It is submitted that the writ petition challenging the award having been dismissed by this Court, there was no scope for interference by the Consumer Commission not any direction could be given to the petitioner to install the telephone line at 8/6, Alipur Road, Delhi. It is also submitted that the award having directed the shifting of the telephone line to the premises where respondent No. 2 was residing, the Commission had no jurisdiction to dilute the award so as to direct the installation of the telephone line at the same premises from where it was disconnected.

5. Despite the case being on the board for the last few dates, no one has appeared on behalf of the respondents and I have, therefore, proceeded to decide this petition after hearing only the counsel for the petitioner. It is not in dispute that by the impugned award dated 28.5.1992, the arbitrator had directed that if the claimant (Respondent No. 2) wanted to restore and use this telephone line, he will have to get it shifted at his own premises. It is also not in dispute that respondent No. 2 had all along being and even on the date of the passing of the order by the Consumer Commission was residing at Gurudwara Road, Karol Bagh, New Delhi. It was also not in dispute that the premises 8/6, Alipur Road, Delhi was under the exclusive use and occupation of Mr. L.D. Gupta and his family members, as is clear from the award of the arbitrator. Respondent No. 2 has neither left nor vacated the premises in his occupation in Karol Bagh. In these circumstances, could it be said that the lease alleged to have been created in favor of respondent No. 2 in respect of the premises bearing No. 8/6, Alipur Road, Delhi was a genuine lease? The answer has to be in the negative. In case Mr. L.D. Gupta was exclusively occupying and using the said premises, it is not understood as to how lease of the same premises could be created by him in favor of Mr. O.P. Gupta. It clearly shows that the alleged lease was a sham document prepared only with a view to circumvent the award passed by the arbitrator and to have the telephone line installed in the same premises from where it was disconnected. In case respondent No. 2 was residing in Gurudwara Road, Karol Bagh, New Delhi, the telephone line, if reconnected at Alipur Road, Delhi would have been used only by Mr. L.D. Gupta and by no one else. The lease, therefore, alleged to have been created in favor of respondent No. 2 was not a genuine document and no reliance whatsoever could be placed upon the same.

6. Moreover since the award of the arbitrator passed under Section 7B of the Indian Telegraph Act could be challenged by filing a writ petition in this Court, respondent No. 1 had no jurisdiction to entertain any application either for implementation of the award or for passing an order directing the petitioner to install the telephone line at the premises from where it was disconnected on the ground that the same had been taken on rent by respondent No. 2 from Mr. L.D. Gupta who all along had been misusing the telephone line. The order passed by the Consumer Commission, in my view, is, therefore, totally without jurisdiction and cannot be sustained.

7. For the foregoing reasons, I make the RULE absolute and set aside the impugned order dated 20.8.1993 passed by respondent leaving the parties to bear their own costs.