Gujarat High Court
Gautambhai P Shah vs Ahmedabad Telecom District & 5 on 10 March, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/117/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 117 of 2014
In SPECIAL CIVIL APPLICATION NO. 5811 of 1997
With
CIVIL APPLICATION NO. 791 of 2015
In
LETTERS PATENT APPEAL NO. 117 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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GAUTAMBHAI P SHAH....Appellant(s)
Versus
AHMEDABAD TELECOM DISTRICT & 5....Respondent(s)
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Appearance:
MR FB BRAHMBHATT, ADVOCATE for the Appellant(s) No. 1
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C/LPA/117/2014 JUDGMENT
MS PJ DAVAWALA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1.1 , 2 - 6
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 10/03/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1 By way of present appeal, the appellant herein has challenged the judgment and order dated 22.10.2013 passed by the learned Single Judge in Special Civil Application No.5811 of 1997 whereby the learned Single Judge has dismissed the said petition.
2 In the said writ petition, the case of the appellant is that the premise which was being used by him and other persons is business premise and respondents No.4 and 6 are residing in the residential flats on the said premise and in the night hours when offices are closed, the respondents were using the telephone line of the appellant and other persons. It is submitted that the appellant has no contact in the America and the number which was outgoing number and that number is similar number of all the petitioners who have received telephone bills on higher side, the said aspect is not considered by the learned Single Judge. Hence, the present appeal.
Page 2 of 6C/LPA/117/2014 JUDGMENT 3 Heard learned advocates for the parties. 4 The appellant herein namely Gautam Shah is one of the four
petitioners. The main contention of the appellant before the learned Single Judge is that the telephone lines are misused by Snehal Chandrakantbhai Panchal and department is required to take action against him and other employees of the department, who are involved in the conspiracy for misusing of the telephone lines. It will not be out of place to mention that out of four petitioners, only one petitioner is approached this Court. Learned counsel for the appellant further contended that in the year 1997, the stay was granted and in the year 2014, the appellant has left no other alternative and he cannot file a civil suit.
5 In paragraphs Nos.13, 14 and 15 of the aforesaid judgment dated 22.10.2013, the learned Single Judge has observed as under:
"13. From the averments, material and the rival submissions, the undisputed facts which emerged are that the telephone line, as stated in the petition, belongs to the petitioner no.1 (the petitioner nos. 2 to 5 are not having reference to the present issue and therefore it is the petitioner no.1). The petitioner no.1 is having the telephone line No. 6577374 as a consumer. The bill has been received in September 1996. That the representation is made in 1997. The affidavit, much relied upon by the petitioner is dated 14.4.1997 and 1.4.1997. Meaning thereby, after receipt of the bill in November 1996, the petitioner has not taken steps. Again the affidavit of Respondent No.4 Snehal Panchal which has been much relied upon by learned Counsel Shri Tanna for the petitioners stating that the liability has been admitted stating that he had misused the telephone line is in fact disputed. The Respondent No.4 has filed the affidavit in reply in the present proceedings specifically denying about any misuse of the line of the petitioner and has also stated about the manner in which the Page 3 of 6 C/LPA/117/2014 JUDGMENT affidavit has been obtained under threat and coercion. Therefore, the moot question, which is required to be considered is whether the petitioner, particularly petitioner no.1, can escape the liability or avoid the liability towards the payment or the dues of the department for availing the facilities of telephone connection. The answer has to be in negative inasmuch as the primary liability is on the consumer, i.e. petitioner no.1. If, at all, there was any dispute or any misuse, he could have taken necessary steps, including the police complaint and not the complaint subsequently filed before the court of Magistrate. Had the complaint been filed in the form of FIR at the first instance, the police along with the department would have made proper investigation. Be that as it may, as per the provisions of the Indian Telegraph Act read with the Rules, the primary liability is that of the person who holds such connection or who is provided with such facility. The say of the petitioner about the abuse and misuse, is a matter, which could be examined or proved in appropriate proceedings on appreciation of evidence, particularly when, the very affidavit on which the reliance is placed by the petitioner stating that it has been admitted by Respondent No.4 is disputed. Therefore, as rightly submitted, it involves a disputed question of facts, which cannot be gone into in the present proceedings under Article 226 of the Constitution of India. When there are words against words, it would be a matter of detailed scrutiny of the evidence based on the material before the Civil Court, to find out, whether in facts, there was an abuse or misuse of the line of the petitioner, whether there is any collusion or whether it is an after thought by the petitioners as alleged. Therefore without entering into elaborate discussion on this aspect, it would be suffice to say that such an issue cannot be considered and decided and the petitioners are required to file appropriate proceedings by way of Civil Suit. However, as discussed above, since the petitioner as a consumer or the person who has availed the telephone line, cannot escape the primary liability, and the say of the petitioner about abuse or misuse by somebody, or the steps which he may have taken, could be examined before the trial court, or he may claim recovery of the amount from Respondent Nos. 4 to 6.
14. The scope of exercise of discretion under Article 226 of the Constitution of India is well settled and it has been clearly laid down by way of guideline in catena of judicial pronouncements that, when it involves disputed questions of facts, normally the writ court would not entertain any such petition and would decline to exercise the discretion under Article 226 of the Constitution of India. Again, assuming that there is some substance qua misuse by Respondent Nos. 4 to 6, it is a matter between the petitioners and Respondent Nos. 4 to Page 4 of 6 C/LPA/117/2014 JUDGMENT 6 for recovery of the amount, but the petitioners cannot escape the primary liability for payment of the dues of the telephone line / connection.
15. Further, a reference is made to a criminal case and some papers are produced during the course of hearing and it only reveals that the matters are only adjourned. It has not been pressed nor even warrant has been sought to be served and the proceedings, it appears, are filed as and by way of shield to consume time or to postpone the liability for payment. Therefore, when the petitioner is complaining about abuse and misuse, the petitioner also cannot be heard to say that he would, in the name of the pendency of the proceedings, would avoid the payment. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed on the ground that it involves the disputed questions of facts, which cannot be examined in the present proceedings and the petitioner may take appropriate proceedings, as may be advised, but cannot escape the liability towards the payment of dues of the department for availing the facilities of telephone connection. The present petition therefore stands dismissed. Rule is discharged. Interim relief, if any, stands vacated. No order as to costs."
6 We are of the considered opinion that no illegality or infirmity is committed and we are in complete agreement with the observations and findings arrived at by the learned Single Judge while passing the impugned judgment and order and hence no interference is called for with the impugned judgment, as prayed for. The appeal is devoid of merits and is accordingly dismissed.
7 In view of the dismissal of the main appeal, the civil application does not survive and is accordingly dismissed.
(K.S.JHAVERI, J.)
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C/LPA/117/2014 JUDGMENT
(A.G.URAIZEE,J)
chandresh
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