Orissa High Court
Ginni Vitreous Pvt. Ltd. vs Union Of India (Uoi) And Ors. on 24 November, 1992
Equivalent citations: AIR1994ORI151, AIR 1994 ORISSA 151, (1993) 2 CIVLJ 71, (1993) 2 CURCC 387, (1994) 1 CIVILCOURTC 356, (1994) 1 CURLJ(CCR) 631, (1993) 75 CUT LT 606
JUDGMENT A.K. Padhi, JJ. 1. The petitioner, a Private Limited Company represented by its Managing Director, Sri M.K. Agrawala has filed this application praying for quashing the order passed by the Sub-Divisional Officer, Telegraphs, Jatni refusing to provide new telephone connections in the name of the Company as well as in the name of Sri Agrawala for which they had applied for. 2. The petitioner-company has been incorporated under the Indian Companies Act, 1956 having its registered office at Khurda and factory site at Gurujang in the district of Puri. The company intends to manufacture Salt Glazed Sewer Pipes and has obtained a registration certificate from the District Industries Centre, Puri during the year 1990. According to the petitioner, it is fairly a big project and the petitioner is in badly need of two telephones, one at the factory site and the other at the registered office of the Company, for which the petitioner had applied on 8-3-1991. On receipt of the application the Indian Posts and Telegraphs Department sent two demand notes, vide Annexures 2 and 3, requiring the petitioner to deposit a sum of Rs. 1,250/- under each which includes the installation fee and other dues for providing two new telephone connections. The petitioner claims to have deposited the demanded amount on 12-6-199! expecting the telephone connections to be established soon thereafter. Since there was inordinate delay, complaint was lodged before the Sub-Divisional Officer, Telegraphs, Jatni (O.P. No, 4) on 24-7-1991, vide Annexures 4 and 5. Having received no reply and finding that persons who had applied for new telephone connections later in point of time had already got the same, the petitioner filed an application before the District Consumers Dispute Redressal Forum, Bhubaneswar. On being noticed, the opposite parties filed an application before the said forum disclosing that it has been decided by the Sub-Divisional Officer, Telephones, Jatni not to give the petitioner any telephone connection. The petitioner also had received a letter dated 17-3-1992 in which it was alleged that one telephone bearing No. KHW-256 installed in the residence of one Om. Prakash Agrawalla and which was being used by Om. Prakash Agrawalla and his family members and that having been disconnected due to non-payment of outstanding dues and the petitioner being the son of the said Om. Prakash Agrawalla, it has been proposed not to provide any telephone connection to him as applied for. In the said communication the petitioner was called upon to appear before the Sub-Divisional Officer, Telephones, Jatni on 30-3-1992 and show sufficient reasons as to why his applications for new telephone connections shall not be cancelled. The petitioner on receipt of the said notice replied, as in Annexure-8, through his Advocate that in view of the pendency of the matter before the consumers Forum, there is no justification for him to appear before the Sub-Divisional Officer, Telephones, Jatni. It was also indicated therein that the petitioner is no way connected with the lapse said to have been committed by Sri Om Prakash Agrawalla and the plea taken by the Department in support of non-supply of telephone connection to the petitioner is untenable. The petitioner thereafter received a copy of an order passed by opposite party No. 4 refusing to provide the telephone connections, applied for, to the petitioner, copy of which is annexed to the writ application as Annexure-9. The said order is purported to have been passed by opposite party No. 4 in exercise of jurisdiction under Rule 416 of the Indian Telegraph Rules. The said order mentions that on enquiry through S.I.T., Khurda Sri Sk. Jahiruddin, Sri Sarbeswar Pattnaik, LMP, Khurda and from the P.I., Sri R.K. Jena, the Junior Telecom. Officer came to know that the petitioner is the son of Sri Om. Prakash Agrawalla and Ginni Devi Agrawalla is the mother of Om. Prakash Agrawalla. It was further found that telephone No. KHW-256 had been used by Sri Om. Prakash Agrawalla and his family members. From the aforesaid fact a doubt was entertained by the Department that the new telephone is sought to be taken in the name of Sri Mahesh Kumar Agrawalla and the same will be actually used by Sri Om. Prakash Agrawalla and his family members, who defaulted in payment of outstanding amount for telephone bearing No. 256. It is for that reason a notice was issued to the petitioner to show cause and since the petitioner did not show cause, the Sub-Divisional Officer after making due enquiry concluded that it would be against the interest of Department to provide a new telephone to the son and family members of Sri Om. Prakash Agrawalla, who is a defaulter. The petitioner's application was, therefore, rejected by the said order. The said order is now under challenge in this writ application. 3. The petitioner has alleged that one Atmaram Agrawalla, who was provided with the Telephone No. 256 was threatened that, his telephone will be disconnected for nonpayment of the telephone bills against which he had invoked the writ jurisdiction of this Court in O.J.C. No. 3593 of 1991. In the said writ application this Court as an interim measure directed the subscriber to deposit a sum of Rs. 50,000/- by 30-9-1991 and the balance amount of Rs. 28,251/- in two equal instalments i.e. by 30-11-1991 and 30-12-1991 and in case the said depisits are made, the telephone shall not be disconnected. In case of default in complying with the aforesaid conditions the Court observed that it would be open to the opposite parties to take appropriate section in accordance with law. It was further directed in the said order that the opposite parties will take prompt steps to refer the dispute to the arbitrator in accordance with the provision of Section 7(b) of the Indian Telegraphs Act and the arbitrator will give his decision within 4 months from the date of receipt of reference. During the course of argument it was stated that Atmaram Agrawalla, the petitioner in the aforesaid writ application did not comply with the dirctions of this Court as a consequence of which his telephone line was disconnected. But the disconnection of telephone No. 256 for nonpayment of the telephone dues. According to the petitioner, can be of no ground for refusal of the telephone connection to him. 4. In the counter-affidavit filed by the opposite parties it has been stated that the Sub-Divisional Officer (Phones) Jatni has been vested with the statutory power to reject the application for a new telephone connection and he did so in exercise of his jurisdiction under Rule 416, Indian Telegraph Rule, 1951 and the rejection order, according to the opposite parties is in the interest of the Department. It was also stated that the order of rejection in Annexure-9 was passed after due enquiry and the petitioner having failed to appear and participate in the enquiry, cannot be allowed to challenge the legality of the order passed. According to the Department Telephone No. 256 was installed in the house of Sri Om Prakash Agrawalla since 1969 and it is Om Prakash Agrawalla and his family members, who were responding on that telephone when the Department was demanding for payment of outstanding bills. The present petitioner being one of the sons of Sri Om Prakash Agrawalla and the Company having been started in the name of Ginni Devi, who happens to be the mother of Om Prakash Agrawalla, new telephone connection was rightly refused to the petitioner. It is Om Prakash Agrawalla who had lodged a complaint alleging excess metering in respect of some bills which according to the opposite parties, establishes the fact that new telephone conenction is being applied for in a different name who is a family member of the defaulting subscriber. According to the Department the matter was thoroughly enquired into and the concerned authorities were satisfied that new telephone is sought to be installed in the same permises where tele-phone No. 256 was working and the same shall be used by the same persons who were using the disconnected telephone. For the aforesaid reasons, the opposite parties justified the rejection of application of the petitioner for new telephone connection, which according to the opposite parties being an administrative decision of the authorities, the same is not available to be challenged in this writ application. 5. In the rejoinder filed by the petitioner against the aforesaid counter-affidavit, the petitioner challenges the order of rejection in Annexure-9 as without jurisdiction and based on no materials. It has been stated therein that the house in which telephone No. 256 was installed does not belong to Sri Om Prakash Agrawalla. The ground of rejection, according to the petitioner is based on absurd facts. The petitioner denied the signature appearing in Annexure-'C' to be that of Om Prakash Agrawalla and reasserted that Atmaram Agrawalla in whose favour telephone No. 256 was allotted is no way connected with the petitioner or his family members. The petitioner has challenged the correctness of the report said to have been submitted by the Junior Telecom. Officer and has alleged that the refusal for new telephone connection in favour of the petitioner was on irrelevant ground. 6. The learned counsel for the opposite parties placed reliance on Rule 416 of the Indian Telegraph Rules, 1951 which as urged by him provides enough of justification for refusal of the telephone connections applied for by the petitioner. Rule 416 is quoted below for ready reference. "416. Powers of Telegraph Authority : (1) The Telegraph Authority may reject any application for the connection of a new telephone or for providing any similar service or for the alteration of any existing service. (2) Before rejecting any application under Sub-rule(1), the Telegraph Authority shall have due regard to the following facts, namely :-- (a) the antecedents of the applicant and where the application was made by any person duly authorised by the applicant, the antecedents of such person; (b) whether there are any telephones dues outstanding in the name of- (i) the applicant; or (ii) the person duly authorised by the applicant if the application was made by such authorised person on behalf of the applicant; (c) whether any Gazetted Officer of the Central Government or a State Government duly authorised by such Government, has recommended to the Telegraph Authority that in the interests of the maintenance of law and order any telephone of any service as is referred to in Sub-rule (1), should not be provided to the applicant, or, as the case may be to the person duly authorised by the applicant; and (d) any other relevant factor. (3) No action shall be taken under Sub-rule(1) unless notice of not less than seven days has been given in writing to the person concerned and the Telegraph Authority has considered the representation, if any, made by such person in the matter. (4) Notwithstanding anything contained in Sub-rule (3) where the Telegraph Authority is satisfied that any person is engaged in any smuggling activity or is acting in violation of any law relating to the conservation of the foreign exchange resources of the country or is acting prejudicially to the public safety and interest or the Defence of India, Civil Defence or internal security, the Telegraph Authority shall- (a) where such person is an applicant refuses to grant any telephone connection or any similar service or to provide any alteration of any existing service; and (b) where such person is a subscriber, withdraw, either totally or partially, any telephone or similar service provided under these rules; Provided that the Telegraph Authority shall, within seven days of taking action under this Sub-rule inform in writing the person concerned of the action taken, together with the reasons therefor." Learned Standing Counsel for Central Government appearing for the opposite parties places reliance on Clauses (a), (b) and (d) of Sub-rule (2) of Rule 416 in support of the order of rejection in Annexure-9. Clauses (a) to (d) of Sub-rule (2) of Rule416 enumerate the factors which should be taken into consideration before rejecting any application for a new telephone connection. Clause (a) speaks of the antecedents of the applicant and Clause (b) deals with cases in which telephones dues are outstanding either in the name of the applicant or against the person duly authorised by the applicant who has made the application on his behalf. As regards the antecedents of the applicant it has been stated in the counter-affidavit that the S.D.O. (T), Jatni enquired about the connection of telephone No. 256 from the then lineman Sk. Jahu-ruddin, who had given the initial connection and from one Sarbeswar Pattanaik, lineman, who attended the complaints and verified the register in which records of telephonic reminders were given and the name of persons attending the calls were mentioned and came to know that the telephone No. 256 really belonged to Om Prakash Agrawalla though not allotted in his name and that the family members of Om Prakash Agrawalla were using the said telephone. It has also been stated that the new telephone is sought to be installed in the same premises where Telephone No. 256 was there and that the same is to be used by the same persons who used the aforesaid disconnected phone. We lave already indicated that neither Om Prakash Agrawalla was the subscriber nor there is anything on record to establish any relationship between Om Prakash Agrawalla and the subscriber Atmaram Agrawalla. Assuming that Om Prakash Agrawalla was using the telephone installed in the name of Agmaram Agrawalla, it can hardly be a justification to hold Om Prakash Agrawalla responsible for non-payment of the telephone bills. With the permission of Om Prakash Agrawalla various other persons might be using the telephone either as his relations or friends or acquaintances and it is absurd to .nterprete the rule to include all such persons to be debarred for a new telephone connection, if applied for by them, because of the default of the subscriber in payment of the telephone bills merely because they had the scope and accession to use the same. The above, in our opinion, cannot be said to relate to the antecedents of the present petitioner. Clause (b) of Sub-rule (2) of Rule 416 would have evidently no application as it is not the case of the opposite parties that a telephone connection was provided to him previously against which dues are outstanding. Besides these two clauses, the other clause relied upon by the learned Standing Counsel, Central Government is the last clause of the said sub-rule. It speaks of "any other relevant factors" without further clarifying the same. "Any other relevant factor" evidently would mean" a circumstance which is relevant and affords justification for refusal of a telephone connection". Neither the authority who passed the order in Annexure-9 nor the counter-affidavit filed on behalf of the opposite parties spells out any other factor which can be taken as a justification for refusal of the .telephone. Learned counsel for the opposite parties relied on an unreported decision of Madras High Court in the case of K. Amanullah v. Madras Telephones in W.P. No. 1884/86 in which the facts are distinguishable. In that case the father of the applicant had a telephone connection who had fallen into arrears to the tune of Rs. 16,000/-. The applicant was refused for a new connection for which he had applied for. In the aforesaid decision his Lordship was of the view that the applicant was not entitled to any telephone connection as it was set up by his father. Learned counel for the opposite parties also referred to another writ application decided by the same High Court in the case of Zarina Bequa v. General Manager, Madras Telephones (W.P. No. 8003/86) which has also no application to the facts of the present case. In that case the husband of the petitioner was in arrears relating to the telephone supplied to him. There was some dispute as to what exactly was the quantum of arrears and the same was pending decision. The learned Judge expressed the view that till the quantum is settled, a new connection in the name of his wife, who had applied for it, cannot be given. 7. Learned counsel for the petitioner has invited our attention to some of the provisions of the Post & Telegraphs Manual, Vol. XII which speaks of the authority who can refuse the telephone. Rule 28 of the said Manual provides that if the applicant's name appears in the defaulter's list, personal sanction of the Divisional Engineer should be obtained and the arrears due to Government realised before the connection is allowed. It also provides that in a case in which refusal of telephone to a relation of a defaulter is considered desirable it should be referred to the Head of Circle District with complete details. Learned counsel for the petitioner has urged that the order of refusal in Annexure-9 having been passed by the Subdivisional Officer of Telegraphs, the same is without jurisdiction. We do not intend to go into the merits of such contention as we have already, found that it is not the case where any of the relatives of the petitioner was in arrears as regards telephone bills and no other relevant factor has been taken into consideration for refusal of the bill. 8. In the aforesaid premises the conclusion is irresistible that refusal of the telephone connection to the petitioner in Annexure-9 is unsupportable and it is, therefore, liable to be quashed. 9. In the result we quash Annexure-9 and direct the opposite parties to provide telephone connection to the petitioner as applied for after requiring him to comply with any further formalities in accordance with law. The same be done within a period of 15 days from the date of receipt of this order. A.K. Padhi, J.
10. I agree.