AMAN DAHIYA, ADVOCATE vs Union of India

WHETHER the seriatim seniority of the telephone subscriber in the list maintained for the grant of out of turn priority basis connections can be arbitrarily over-ridden by the Department- is the core question in this complaint.

THE complainant Mr. Aman Dahiya is a practicing advocate of the High Court. Admittedly he was sanctioned a telephone connection on out of turn priority basis by the Director General, Tele-communication way back on the 23rd of October, 1989 vide Annexure C-l. As usual this connection was to be provided subject to technical feasibility. It is the complainant''s case that after the aforesaid date he repeatedly approached the District Manager and the Commercial Officer of the Telephone Department at Chandigarh for the release of the aforesaid connection, but they procrastinated in doing so. In January 1990 the complainant alongwith a colleague Mr. Ramesh Hooda, Advocate also met Mr. N.L. Sahi, the then District Manager of Telephones and inter-alia impressed upon him the urgency of getting the connection because the complainant wanted to contest the bar council elections which were to be held in October 1990. It is the case that Mr. Sahi told him that because the complainant was residing in Sector 11 of Panchkula which was a technically non-feasible area, the connection could not be given to him and assured him that if he moves to some feasible sector in Panchkula the same would be installed there soon after his shifting. According to the complainant when he shifted to the High Court in 1982, he rented house No. 229 in Sector 11, Panchkula for a somewhat modest rent of Rs. 550.00 per month with an assurance from the landlord (who was a Government employee) that he would not get the same vacated till the date of his retirement provided the rent was suitably enhanced meanwhile. However, in view of the alleged assurance given by the District Manager, Telephones the complainant forthwith vacated that house and rented house No. 22 in Sector 16, Panchkula (in which he shifted on the 1st of March, 1990) on a much higher rent at Rs. 2,300.00 only because the said sector was a feasible area in which he expected to get the telephone connection forthwith. After shifting, the complainant informed the Department and applied for the installation of the telephone at the aforesaid address vide his letter dated the 9th of March, 1990. It is the complainant''s grievances that despite all this and his repeated protestations the telephone was not released to him and he was compelled to give a legal notice to the Department on the 28th of January, 1990 vide Annexure C-2 to which a reply was received vide Annexure C-3. The complainant''s allegation is that his stand in the legal notice was hardly controverted because admittedly Sector 16, Panchkula was a feasible area and meanwhile the Telephone Department has released a number of connections to persons who were far below him in the list maintained for out of turn priority basis sanctions and who had been accorded such sanctions much later than the 23rd of October, 1989 when his case was sanctioned. It is alleged that the opposite parties had intentionally and even maliciously over-ridden the complainant''s claim for the release of the telephone connection on the out of turn priority basis in favor of persons far junior to him in the list admittedly maintained, therefor and further had even released ordinary connections earlier than the one given to him later.

The complainant has raised a somewhat tall claim of Rs. 7,00,000.00 against the opposite parties on the grounds that he had perforce to shift to a much more expensive accommodation in Sector 16; he suffered an incalculable loss owing to the absence of the said telephone because he narrowly lost the election to the bar council on that account; and further he incurred professional losses occasioned by his shifting from his well known accommodation in Sector 11 to which his clients were attuned to resort.

IN the somewhat short reply to the complaint which is not notable for its candour, the opposite parties did not dispute the averments in paras 1 to 3, 7 & 9 of the complaint, but controverted those in paras 4 to 6 and 8 by alleging that at that time Sector 11 of Panchkula was a technically non-feasible area due to non-availability of under-ground cables and further that no assurance was given to the complainant regarding the shifting of his residence to any other feasible area which was alleged to have been done at his own will and desire and ignorance was pleaded with regard to the complainants contract with his landlord. IN the material reply to para 10 the stand taken was that the telephone was released to the applicants by the competent authority as per discretion vested in him vide D.G. Telecom letter No. 11-7/62-PHA/Coll.XIII-B dated 26th of February, 1969. IN reply to para 11, it was submitted that the case of the complainant was examined, but was not approved as the Telephone Exchange at Panchkula was over-loaded and the stand in para 10 with regard to out of turn sanctions was reiterated. Consequently, the monetary claim for compensation and damages was strongly controverted. Particular reliance of the opposite party was an Annexure R3 which pertains to the instructions and guidelines regarding the relative priority in shifts and installation of telephone connections. In support of his case the complainant apart from the undisputed documentary evidence placed his own affidavit and those of Shri Ramesh Hooda, Advocate and Shri Kewal Krishan his landlord on the record. The complainant and Shri Ramesh Hooda were also put into the witness-box and were cross-examined on behalf of the opposite party.

ON behalf of the opposite party the affidavit of Shri H.R. Sharma, Commercial Officer hated the 9th of September, 1991 and that of Shri N.L. Sahi, former D.M.T. Chandigarh were placed on the record. In reply thereto the complainant filed another counter affidavit dated the 7th of October, 1991 wherein he specifically asserted that between March, 1990 to March, 1992 the opposite parties had installed hundreds of telephones and number of them from out of turn priority quota which had been sanctioned subsequently to that of the complainant and were far below his seriatim seniority in the list maintained. Along therewith the complainant also filed an application for summoning Shri H.R. Sharma for cross-examination alongwith the records to establish his stand that persons far below him in the list of out of turn priority basis connection had been released much earlier than him. Apparently faced with the aforesaid application and the request for cross-examination a further counter affidavit was filed by Mr. H.R. Sharma, Commercial Officer, Telephones wherein for the first time in paragraph 3 thereof it was admitted that during the relevant period a telephone connection was released and regularised at 79, Industrial Area, Panchkula and also three telephones in the name of Shri Khurshid Ahmed, Shri J.P. Atray and Shri Sanjeet Malik were released to them under the discretionary power by the then District Manager. It was further stated that till March 1991 subscribers at Sr. Nos. 1, 3, 3-A, 4, 5, 8, 11, 13, 14, 18 to 20, 22 and 26 were not given connection because of non-availability/feasibility of sectors as well as the loading position of the exchange. It was the stand that when the Panchkula Exchange was expanded on the 16th of March, 1991, the telephone connection was actually released to the complainant on the 27th of March, 1991. In his cross-examination by the complainant Shri H.R. Sharma conceded that the Department maintained a separate list for out of turn priority connections in which they record the order, number, and date when the telephone against the same is released and the complainant''s names stood at Sr. No. 32 therein. He further conceded that the telephone connections in the priority list are to be released seniority-wise and also that three persons below Serial No. 32 were given telephones prior to the complainant. From the aforesaid resume of the facts and evidence, it would be somewhat manifest that the controversy herein ultimately boils down into a narrow compass. The admitted and established facts are that the complainant was granted an out of turn priority basis telephone connection on the 23rd of October, 1989 by the Director General of Tele-communication, New Delhi. In the list admittedly maintained by the Department for such connections the complainant''s name figured at Sr. No. 32 thereof. In order to secure the said telephone the complainant who was living in a technically non-feasible area in Sector 11, Panchkula shifted to a feasible area in Sector 16, thereof, on the 1st of March, 1990 either on the assurance that the connection would be released or in any case in a reasonable hope therefor. Nevertheless the telephone connection was not released to him till more than a year later on the 27th of March, 1991 and meanwhile at least three persons far below him in seriatim order of the list being maintained were released telephone connections and probably another one was released and regularised at 79, Industrial Area, Panchkula. It was only after a legal notice was served by the complainant on the opposite party-Department that they were moved to grant a connection only when the Panchkula Exchange was expanded on the 16th of March, 1991. In this context the core question is whether the opposite party was justified in over-riding the complainant''s seniority in the list at Sr. No. 32 and prefer those below him to grant connections much earlier than releasing the same in his favour. 8. 10. Faced with the patently up-hill task of explaining the blatant over-riding of seniority in the list by the opposite party, their learned Counsel Mr. Sodhi''s sheet-anchor was the Departmental instructions (Annexure R-3) dated as early as the 26th of February, 1969. On that basis it was sought to be argued that as an exception some discretion was vested in the head of the circle/district to release these telephone connections and the exercise of that power could not be questioned and examined. Since the whole foundation of the opposite party''s case is rested on this instruction, it becomes necessary to notice it in extenso :- "DG P&T Lr. No. 11/7/62-PHA/COLL XII/B dt. 16.1969. Sub: Relative priority in shifts and installation of telephone connections. Instructions were issued in this office circular letter No. 11-7/67-PHA/COLL XII, dated 6th February, 1968 that permissible shift cases should be given preference over the installation of new telephones. Difficulties have arisen sometimes in determining the relative priority for installation of new telephone connections sanctioned to be provided under different categories and by different authorities. The determination of such priority often becomes necessary when connections are to be given in an area where there is a limited number of cable pairs. Keeping in view of the various difficulties arising out of such situations it is clarified for your guidance that following relative order of priority may be observed in installation of telephone connections. 1. Shifts of telephones 2. asual connections 3. Govt, connections under both OYT and Temporary arrangements. 4. Out of turn telephones connections sanctioned under OYT other than those sanctioned on the recommendations of Telephone Advisory Committees. 5. Temporary connections. 6. Connections sanctioned in according with normal rules of allotment either in turn or out of turn, on the recommendations of Telephone Advisory Committee or otherwise. The Head of the Circle/District may use his discretion in exceptional circumstances to give over riding priority to any particular case as deemed necessary by him."

PERHAPS before examining the import of the aforesaid departmental instructions, it becomes necessary to first consider the very applicability thereof. Herein we are somewhat sceptical whether these would be strictly attracted in the complainant''s case at all. The sanction of the telephone connection in his favour is of the special category of an out of turn priority basis and issued by the Director General of Tele-communication, New Delhi. This seems to be in a class apart from the ordinary out of turn connections sanctioned under OYT or those sanctioned in accordance with the normal rules of allotment which find mentioned in the aforesaid departmental instructions at Sr. Nos. 4 and 6. Again these instructions are as old as the year 1969 when perhaps the present category of an out of turn priority basis sanctions by the Director General of Tele-communication was not envisaged. Even otherwise it would seem somewhat incongruous that the sanction of the Director General of Tele-communication would be subordinated to the orders of the head of the every circle/district at the lower level within the country.

HOWEVER, we would not like to rest ourselves on the aforesaid aspect because this issue was not thoroughly agitated before us and further it appears to us that even assuming entirely in the favour of the department that the present case is governed by the aforesaid departmental instructions, still the same does not in any way justify their stand. Herein the matter has to be now examined in the present day context of the fact that the grant of a telephone connection is one of the most essential services today in urban areas and is a valued right, whilst its refusal or delay may bring in its wake considerable hardship and inconvenience particularly to a professional person. It would indeed be wasteful to labour this obvious factor or to launch any exhaustive dissertation thereon. There is no gain-saying the fact that in the present case the sanction of the out of turn priority basis connections to the complainant vested in him a valuable right to get this connection within a reasonable time and according to his turn in the seniority list expressly maintained therefor. The maintenance of this list has obviously been enjoined in order to ensure uniformity and impartiality in the release of such connections. Even the department''s own witness Mr. H.R. Sharma categorically stated in his evidence on oath that the telephone connections in this list are to be released seniority-wise. The cardinal rule, therefore, which is manifest is that persons in the queue in the departmental list of out of turn priority connections would be entitled to their release seriatim, subject of course to technical feasibility. To this cardinal there is only one solitary exception provided in the instructions, which is that in the presence of exceptional circumstances only the head of the circle or district alone may use his discretion to override the seriatim priority in the list. The crucial question therefore, is whether this discretion is to be exercised whimsically or only for sound and good discernible reasons duly recorded. It become unnecessary to examine the aforesaid issue on principle because it appears that the answer thereto has been recently rendered in the particular context of the telephone connections itself given under the Tatkal (Immediate) Scheme in 1991 (2), The Punjab Law Reporter, Page 660 ''Ashish Handa and Another v. The District Manager, Telephone, Chandigarh and Another.'' Therein after a detailed discussion of the matter it was concluded as follows :- "Characteristics of this dictum in the picturesque language of Lord Halsbury have been defined as such: ''When it is said that something is to be done within the discretion of the authorities.that something is to be done according to the rules of reasons and justice; nor according to private opinionaccording to law and not humour. It is to be not arbitrary, vague, fanciful, but legal and regular."

From the observations that have been quoted above, it would be apparent that when an executive authority is required to act in its discretion, it should do so in good faith and fairly and not in an arbitrary manner. Unchecked power is alien to rule of law. The Courts would always have judicial control over the arbitrary acts of an executive authority."

Now considering the departmental instructions in the present case in the refreshing light of the afore-quoted authoritative observation, it would be somewhat patent that the discretion in the head of the circle/district is only by way of a solitary exception to the basic rule of maintaining seriatim priority in the list being maintained expressly for that purpose. The objective foundation for the exercise of such a discretion is the existence of some factually exceptional circumstances which warrant the head of the circle/district only to deviate from the cardinal principle. The use of the words "to give over-riding priority to any particular case" would highlight the underlying rarity in which such power is to be exercised. It has now become very well settled that whenever such a discretion in exceptional circumstances has to be exercised, it must rest on the bed-rock of sound recorded reasons. The exceptional circumstances and the exercise of discretion and over-riding priority are not to exist in the thin-air of the mere imagination of the authority but, indeed rest on the more solid basis of sound reasons duly recorded. In such a situation it becomes imperative for the authority exercising an exceptional power to clearly record and indicate the reasons which impel him to do so. It is in this light alone that we are inclined to construe the extra-ordinary discretion visualised by the departmental instructions for deviating from the cardinal rule of seriatim priority in the prescribed list.

FOR the fore-going reasons, it is somewhat plain that the answer to the question posed at the out-set has to be necessarily rendered in the negative and it is held that the seriatim seniority of the telephone subscriber in the list maintained for the grant of out of turn priority basis connections cannot be arbitrarily or whimsically over-ridden by the Department. Once it is held as above, it is plain that the complainant herein has a cast-iron case. It is significant to recall that in the original pleadings of the opposite party by way of reply it was not even expressly pleaded that there were any exceptional circumstances which had compelled the head of the district to over-ride the complainant''s seniority in the list. Indeed the factum of releasing connections below the Serial No. 32 of the complainant was at the initial stages supressed from view. It was only when the complainant summoned the record to establish his stand and expressly and categorically averred that the list had been deviated from that the department seems to have been compelled to disclose the persons below the complainant''s seniority who has been favoured with a release of telephone connections much prior to him. We had pointedly asked Mr. Sodhi, the learned Counsel for the opposite parties whether any reasons had been recorded or any order framed with regard to the exceptional circumstances by the head of the district or circle in each case of the three or four cases who had admittedly over-ridden the priority of the complainant''s claim. He candidly conceded that there was no such recording of reasons or any order to that effect. Somewhat charitably, we had even pin-pointed him to otherwise establish from the official files if any such exceptional circumstances were indicated therein. An examination of the record indicated not a hint of any factually exceptional circumstance or the recording of any reason whatsoever. Indeed the less said about the said record the better.

IN fairness to Mr. Sodhi, the learned Counsel for the opposite parties we might as well notice what in the end appeared to be his argument of desperation. It was half-heartedly submitted that had the telephone connections not been given to the three or four persons below the complainant in the list, these might well have gone in favour of some others who were higher in the list then the complainant himself, this submission has only to be noticed and rejected. Firstly no such plea was at all taken in the pleadings. It was only when the opposite parties were pushed to the wall that in a belated affidavit dated the 28th of October, 1991 it was conceded that as many as fifteen persons above the complainant in the seniority list were not given connections because of the non-availability/feasibility of the sectors as well as the loading position of the Exchange. It is manifest from this averment itself that a large number of persons above the complainant in the order of priority were ineligible and thus ousted for consideration on the ground of absence of technical feasibility. It has not even been averred that the remaining ones had not already been given their connections. The complainant has thus been obviously denied any opportunity to show that none of the persons above him could possibly be given connections whilst those below him were being unduly favoured. IN any case the burden to establish this fact lay heavily and squarely on the opposite parties and not on the complainant at all. They have not been able to discharge that burden even remotely. This apart even assuming everything in favour of the department, the mere fact that some of the persons above the complainant had not chosen to take on the burden of protracted proceedings to establish their right for the connection is no ground for denying relief to the complainant who has rightly and diligently prosecuted his claim before the consumer jurisdiction. The specious argument of Mr. Sodhi which appears to us as only an afterthought at the end of a crumbling case has thus to be categorically rejected. For the detailed reasons above, both as a matter of law and fact it has to be held that the opposite party had not the least justification to ignore the right of the complainant and to favour persons below him in the departmental list and consequently their action in doing so was plainly unwarranted. Needless to say that this is a glaring and patent deficiency in the nature and manner of performance of the services undertaken by the opposite parties. That brings us to the question of the quantum of relief to be accorded to the complainant. He has raised a claim of Rs. 7,00,000.00 as compensation for the loss and injury suffered due to negligence and deficiency on the part of the opposite party. We must confess that this amount appears to us as excessive and not sustainable in its totality. One of the grounds for sustaining this claim is that because of the denial of the telephone connection the complainant narrowly lost the bar council elections held on 26th/27th November, 1990 by a mere margin of eight votes. This is alleged to have caused a huge loss of Rs. 3,00,000.00 including excessive expenditure in election, loss of professional income and generally throughout life on account of losing the reputation because of losing the election and otherwise also. It may be that the complainant may have been handicapped in contesting the election without a telephone connection, but his financial claim in this context is patently too remote and wholly hypothetical. It is unnecessary to elaborate the settled rule that the damages or compensation can be awarded only for a direct and proximate cause and not for every indirect or imaginable consequences thereof. This claim clearly is hit by the well-known doctrine of remoteness of damages. Even otherwise no effective factual basis thereof has been brought on the record.

WHAT has been said above equally applies to the grievance that the shifting of his residence from Sector 11, Panchkula to Sector 16, in his chase to get the connection had resulted in professional losses because of the loss of clientage who were attuned to resort to his earlier residence. This ground of the claim also is somewhat far-fetched and cannot be possibly be made as a basis for the grant of compensation.

IT is however, well established on the record that the grant of telephone connection to him was delayed for well-nigh one year. IT is not in dispute that he had shifted to a technically feasible Sector No. 16, Panchkula on the 1st of March, 1990. Nevertheless, it was not till the 27th of March, 1991 when he was released a connection and that too when the Panchkula Exchange had been expanded generally and connections could be liberally released to all applicants. The denial of a telephone connection to the complainant for this period would obviously be to his prejudice both financially and professionally. The National Commission has taken the view that a denial or disconnection of the telephone service can lead to professional loss which is compensable in the consumer jurisdiction under Section 14 of the Act, Equally it has to be noticed that the complainant has brought credible evidence on the record that in the hope of getting the telephone he gave up his original accommodation rented at the modest sum of Rs. 550.00 per month and hired one at a considerable high figure of Rs. 2,300.00 in the Sector 16, He has computed his loss on this account at a sum of Rs. 20,900.00 per year. Apart from this he had inevitably to suffer the harassment of period amended and seeking a telephone connection which we have held was being wrongly denied to him. He had also to go through the mill of somewhat protracted proceedings in the present case which were hotly contested by the opposite parties. For all these reasons, we are inclined to the view that a somewhat modest sum of Rs, 20,000.00 only as compensation would amply meet the ends of justice, now that the complainant''s stand has been duly vindicated. The complaint is allowed in the terms aforesaid without any order as to costs. The opposite parties are hereby directed to pay the aforesaid amount of Rs. 20,000.00 to the complainant within one month from the date of this order, failing which compliance would be enforced under the provisions of Section 27 of the Act, Complaint allowed.