GAUHATI PUBLIC CALL OFFICE ASSOCIATION vs DISTRICT MANAGER, TELEPHONES, KAMRUP

THE present petition under provisions of the Consumers Protection Act, 1986 has been filed by the Secretary of the Gauhati Public Call Office Association, which is a registered body. THE main grievance of the petitioner is that in addition to security deposit paid initially and subsequently further additional security for installation of Public Call Office, the District Manager, Telephones, Opposite Party, has claimed further additional security, which according to the petitioner, cannot be claimed as per rules and also agreement. THE petitioner also filed a petition putting forward some grievances vide memo at Annexure ''A'' to the petition, which, petitioner has alleged, was arbitrarily rejected by the Opposite Party by letter dated 22.5.93 vide Annexure ''B'' to the petition. We shall enter into these grievances later on and before that we shall take up the question whether further additional security can be demanded.

OPPOSITE Party has filed written objection wherein the question of maintainability has been raised. In addition, it has been urged that according to Rule 445 such further additional security can be demanded and there is no illegality. Heard Mr. Kataky, learned Counsel for the petitioner and also Mr. K.N. Chaudhury, learned Standing Counsel for the Opposite Parties.

Regarding the question of maintainability, it has been urged that in view of Clause (d) of Sub-section (1) of Section 2 of the Consumers Protection Act, 1986 the present petition is not maintainable as the Public Call Offices have been set up for commercial purpose. Similar question came up before the National Commission as well as before this Commission and it has been held that commercial purpose means business where huge investment is necessary for earning substantial profit. But where a particular industry or business is set up merely for livelihood of the person, it cannot be said to be a commercial purpose.

APPLYING the above ratio, we find that the Government took a policy decision to allow setting up of Public Call Offices and preferences have to be given to handicapped persons, Ex-service men/war-widows, retired D.O.T. staff, educated and unemployed men and women and Scheduled Caste/Scheduled Tribe and other weaker sections of the society. Thus it is clear that allowing a person to set up a Public Call Office is only for the livelihood and that too while granting permission for establishment of Public Call Offices preferences have to be given to the special categories of persons as stated. That apart from the statement which has been made in the petition it is clear that income earned by each individual from each Public Call Office is very small and it is meant only for livelihood of the person. Therefore, it cannot be said that setting up of Public Call Offices is a commercial venture, and therefore, we reject the contention of the learned Counsel for the Opposite Parties that owners of Public Call Offices are not consumer under the above Section 2(1)(d). The entire matter rests in the interpretation of the Rule 445 of the relevant Rules. This Rule, inter alia, provides that the Telephone Department may at any time, before or during the period for which a telephone or other like service is provided demand security deposit. According to Mr. Kataky, learned Counsel for the petitioner at the time of installation each member of the petitioner society paid a sum of Rs. 10,000/- as security money and thereafter the Opposite Party took another amount as additional security after calculating six months average bill from each member of the petitioners society. Therefore, according to Mr. Kataky further demand of another additional security is not envisaged under the Rules.

ON the other hand, Mr. Chaudhury has urged that the department is empowered to demand security deposit from the subscribers at the time of initial commission and after expiry of the six months period such security deposit has to be worked out on the basis of one months average revenue or six months minimum guarantee money, whichever is higher. Reading the Rule, we are unable to find that there is any bar on the Telephone Department to demand additional security depending on the volume of the transaction. This is necessary, in our opinion, to safeguard the revenue of the Government which is of utmost public importance. In view of the stand taken by the Telephone Department we direct the Telephone Department, viz., the Opposite Party herein that while calculating security deposit every six months amount on the basis of either one month''s average revenue or six months minimum guarantee money, whichever is higher, the amount initially deposited, as security money of Rs. 10,000/- shall also be taken into account alongwith further additional security deposit calculated subsequently by Telephone Department. In other words, while asking each owner of the Public Call Office for additional security the entire security deposit made by each owner shall be taken into account. Consequently if the volume of transaction is reduced, any excess amount paid by each owner of Public Call Office shall either be refunded or shall be adjusted against the bills to be paid by each owner. We find from the impugned notice dated 2.8.93 vide Annexure ''C to the petition asking for additional security in connection with Telephone No. 540913, the Telephone Department has asked the additional security deposit in cash/ demand draft/bank guarantee from Nationalised Bank. We direct that if any additional security is deposited in cash or demand draft, it shall be invested by the Telephone Department in bond issued either by the Unit Trust of India or National Savings Certificate or similar other interest bearing approved schemes in the name of the owners of Public Call Office so that the owners can earn interest on the amount so deposited. Necessary procedure shall be adopted by the Telephone Authority in consultation with the petitioner Society, in the event any endorsement is necessary on such bond, security etc. in favour of the Telephone Department. Interest so earned shall be paid to the owners of the Public Call Office.

REGARDING the memo at Annexure ''A'' putting forward the grievances of the petitioners society and reply thereto by the District Manager by letter dated 22.5.93 vide Annexure ''B'', Mr. Chaudhury has urged that these points were not taken up in the main petition and therefore the petitioners cannot agitate these points. On the other hand, Mr. Kataky has urged that as both the memo and the reply form part of the petition this can be looked into by this Commission.

FIRST demand of the petitioner is that the original procedure of making payment by cheque may be revived. From the letter of the District Manager dated 22.5.93, we find that this was discontinued as some cheques were dishonoured. In the said letter, it was stated as follows:- "In case any such arrangement is possible with bank to give guaranteed or certified cheques, it may be explored." The stand is quite reasonable and we direct that the Telephone Department shall accept guaranteed or certified cheques or bankers cheque in lieu of cash. Regarding additional security deposit we have already discussed and passed appropriate orders.

Another grievance of the owners of Public Call Office is that they are to collect bills every fortnight and payment has to be made within three days and in case of non-payment, without notice the telephone is disconnected. In our opinion, notice is not required as each owner collects the bills from the Department and he is aware that payment has to be made within 3 days. However, we are of the opinion that 3 days is very short period and as laid down by the policy decision of the Government vide letter dated 14th August, 1992 payment may be made during 7th clear working days and telephone shall not be disconnected on Thursdays or Fridays.

REGARDING installation of FAX, the letter of the District Manager dated 22.5.93 is very clear that it can be allowed in case the owners of Public Call Offices give an undertaking in the prescribed pro-forma vide paragraph 7 of the said letter. Therefore, the petitioners Society may take up the matter with the District Manager as per the above letter. It is not necessary to consider the other points raised in the memo and as we feel that these can be sorted out by discussion between the representative of the petitioners society and the representative of the Telephone Department and as per guidelines issued by the Government of India.

THE petition is disposed of in terms of the directions issued in this order. Complaint allowed. _____________