Gautambhai P. Shah and 3 others vs Ahmedabad Telecom District and others

Rajesh H. Shukla, J.—The present petition has been filed by the petitioners under Articles 14 and 226 of the Constitution of India for the prayer inter alia that appropriate writ, order or direction may be issued to the Respondents that the amount of excess telephone bill may be recovered from Respondent Nos. 4 and 5 and the petitioners may be discharged from the liability of making payment of the excess bill. It is also prayed that the Respondents may be directed not to disconnect the telephone line and direct the respondents to recover the excess bill from Respondent Nos. 4 and 5, on the grounds stated in the petition. The facts of the case briefly summarized are as follows.

It is the case of the petitioner that the petitioner No. 1 is a Manager of Rachna Corporation and it is stated that he is carrying on business in the name and style of Rachna Corporation at the address mentioned in the cause-title. The petitioner No. 1 is having telephone line No. 6577374. Similarly, the petitioner Nos. 2 to 4 are also having the telephone lines with the numbers mentioned in the petition and they have received the bill. It is the case of the petitioners that the petitioner No. 1 received telephone bill for the month of September-October 1996 to the tune of Rs. 4,31,003/- and for the month of November-December Rs. 1,69,116/-. Similarly, other petitioners have also received the bill. It is required to be mentioned that there are five petitioners. The averments are for singular petitioner, meaning thereby the petitioner No. 1 only. It is stated that the petitioner was under impression that the excess bill was due to technical error on the part of the department. It is the case of the petitioner that the phone of the petitioner No. 1 was put under observation and after investigation, it was revealed that the line of petitioner No. 1 was misused by Respondent Nos. 4 to 6 and they used to make the calls abroad as stated in the petition. The petitioner is said to have made a representations at Annexures-A, B and C. The appeal was also preferred as stated in the petition and it has been stated as to how the telephone was misused, as the petitioner No. 1 has learnt about the modus operandi of Respondent Nos. 4 to 6. It is stated that, "the petitioner has come to know from the reliable sources that Mr. Snehal Panchal used to make calls between 7.00 p.m. And 6.00 a.m. to Ms. Sweta Seth-his fianc� at New Jercy, blood run at least as thick water, though, he also called his brother Mr. Jaideep in New York through a similar arrangement." It is also stated that the affidavit in reply of Respondent No. 4- Shri Snehal Panchal is also there, wherein, it has been admitted that he used to call from petitioner''s line, which is produced on record at Annexure-F1. It is also stated that the petitioner No. 1 has also filed criminal case No. 1591 of 1997 before the court of Metropolitan Magistrate, Ahmedabad for the alleged offence under Sections 417 and 420 IPC and the summons have been issued against the Respondent Nos. 4 and 5, which is produced at Annexure-G and other papers are also produced at Annexure-H and H1. It is therefore contended that the Respondent Nos. 4 to 6 are responsible for the excess bill of the telephone line of the petitioner and the preset petition has been filed for the prayers as stated above.

The affidavit has been filed by Respondent Nos. 4 and 6 wherein the averments have been denied. It has been specifically contended that the present petition is not maintainable and it is denied that the Respondent Nos. 4 to 6 have misused the telephone line of the petitioner to make call to his fianc� at New Jercy and New York. It is specifically contended;

I deny that respondent Nos. 4, 5, and 6 i.e. Mr. Snehal Panchal, Mr. Ketan Chapanery and Mr. Chandrakantbhai Panchal have misused the telephone line of the present petitioner to make calls to his fianc� to New Jercy and New York. I state that the petitioners have not produced necessary documents along with the petition, so that respondents Nos. 4 and 6 can give reply to the same,.........................

Further, it is contended that the allegations made against Respondent Nos. 4 and 6 are subsequently got up to avoid their liability to pay the telephone bills. It is contended that Annexures A, B and C do not connect the respondents in any manner. It is specifically stated that;

I state that it is very important to note that, in the complaint at Annexure ''D'', made by petitioner No. 1, it nowhere refers respondents Nos. 4 and 6. I state that the said complaint was submitted by petitioner No. 1 on March 20, 1997, i.e. much after he had received the first bill in the month of September/October 1996 which he had received in the month of November 1996 and, in spite of that, he was not able to find out what was the cause for excess billing. I state that this clearly shows that the petitioners have concocted a story subsequently to avoid their liability to pay telephone bills which they have received or the use of the telephone connection by them, as an after thought, by throwing burden on respondent No. 4.

Again, it has been stated in the affidavit by Respondent No. 4 above, the manner in which the affidavit which is sought to be relied upon by the petitioner was obtained by threat and coercion. It is specifically mentioned in the affidavit in reply filed by Respondent No. 4:

I state that the petitioners, with the help of some other antisocial elements, beaten up respondent No. 4 by calling him in the office of the first petitioner and compelled him to sign on the prepared affidavit stating that he has misused telephone line of the--petitioners. The affidavit produced by the petitioners, of the respondent No. 4, at Annexure "F/2" to the petition, is totally incorrect and false affidavit which the petitioners have obtained from respondent No. 4 by beating him with the help of some anti-social elements and by administering threats, and under duress and coercion.

It is therefore contended that, to avoid their liability to pay the telephone bills, an affidavit has been obtained. It is specifically denied that the Respondent Nos. 4 and 6 have misused the telephone lines as alleged since June 1996. It is also required to be mentioned that though the Respondent No. 4 has stated that the Respondent Nos. 4 and 6 will take appropriate steps challenging the said criminal complaint as per advise of the lawyer, it appears that no steps have been taken though the reference is made to a legal notice through lawyer.

The affidavit in reply has been filed by the Respondent Department and it has been specifically stated that the matter is with regard to the dispute between the two subscribers of the department who happened to be "neighbours" for use of cable wires of another subscriber by manipulating at box. It is therefore contended that;

The department is not concerned with misuse of phone wires at consumer''s end and whatever is the calculation as per the meter reading is required to be paid by the subscriber.

It is therefore contended that the dynamic lock facilities was available, which the petitioner could have used. It is also contended that the loss is to the public exchequer for nonpayment of such bills and, if sufficient care is not taken by the consumer, no fault could be found with the department. It is also contended that since there is a dispute between the two private respondents with regard to the liability, the petitioners cannot approach the High Court, and the discretion under Article 226 of the Constitution of India may not be exercised for resolving such a dispute.

Heard learned Senior Counsel Shri Bhaskar P. Tanna, learned Senior Counsel appearing with learned Advocate Shri Bhavdutt H. Bhatt for Tanna Associates for the petitioners, learned Advocate Ms. P.J. Davawala for Respondent Nos. 1 and 3 and Shri B.B. Naik, learned Senior Counsel appearing with Shri Parthiv Bhatt, learned Advocate for Respondent Nos. 4 and 6.

Learned Senior Counsel Shri Bhaskar P. Tanna referred to the papers at length and submitted that the subscriber-petitioner has no control over the telephone line or the wires and other instruments. He therefore submitted that under the Indian Telegraph Act, the department will have the authority, and therefore, when there was a specific representation or the complaint made, the telephone was put under observation. He further submitted that on his own source he had made an inquiry and found that it was misused by Respondent Nos. 4 to 6. Learned Senior Counsel Shri Tanna heavily relied upon the affidavit of Respondent No. 4- Snehal Panchal produced at Annexure-F1 and submitted that in view of this affidavit, it cannot be said that there is any fault on the part of the petitioner or there could be any liability for such abuse and misuse of lines outside the premises of the petitioner. He submitted that if there is no ISD connection, then how it could joined an international call, and the petitioner is not required to make any effort, when there is no such connection in his favour. Learned Senior Counsel Shri Tanna therefore submitted that when the tampering has been done, is not at the house or the shop, and therefore, the petitioner cannot be saddled with the liability. Learned Senior Counsel Shri Tanna referred to the order of the Hon''ble Division Bench of the High Court with regard to the scheme evolved for such grievance. Learned Senior Counsel Shri Tanna also submitted that he has also lodged a criminal complaint, but the Respondents have gone away abroad, for which he cannot be blamed. Therefore, he submitted that the present petition may be allowed.

Learned Counsel Ms. P.J. Davawala appearing for Respondent Nos. 1 and 3 referred to the papers at length and submitted that the petitioner is the consumer in respect of the telephone connection/line for which the bill is raised. She submitted that there is no privity of contract with Respondent No. 4- Snehal Panchal and the liability cannot be avoided by making an application about abuse or misuse of the line. She pointedly referred to the papers and submitted that there is no complaint that the telephone line may be placed under observation and it may be verified. She further submitted that the departmental appeal is also not exhausted as provided. She further submitted that, as a consumer the primary liability is that of the petitioner in respect of the telephone line and they have to make payment and necessary suit may be filed to recover the amount from the private respondents. She therefore submitted that it is the dues of the department in respect of the service availed by the petitioners, for which, the petitioners have to pay, and cannot escape from the liability of making the allegations based on the affidavit, which is also disputed by the Respondents. Learned Counsel Ms. Davawala therefore submitted that it involves disputed questions of facts and the petitioners may file appropriate suit, where the evidence could be lead and could be contested, and this court may not, in exercise of discretionary jurisdiction under Article 226, entertain such petition. Learned Counsel Ms. Davawala also submitted that the affidavit, which has been referred to, may also be read in context with the affidavit in reply filed by Respondent No. 4 in this proceedings, specifically denying that, he has accepted any liability. She emphasized that, in fact Respondent No. 4 has stated that such an affidavit has been obtained by threat and coercion. Therefore it was submitted that, as it involves disputed questions of facts, the present petition ma not be entertained.

Learned Senior Counsel Shri B.B. Naik appearing with learned Advocate Shri Parthiv Bhatt for Respondent Nos. 4 to 6 has submitted that the affidavit is clear that the petitioners cannot pass on the liability to Respondent Nos. 4 to 6. He submitted that the telephone line belongs to the petitioners, and for availing any such services, the petitioners have to pay. He further submitted that, if there was any clarification with regard to the excess bill, the petitioners could have taken the appropriate remedy, but the allegations which have been made against the Respondent Nos. 4 to 6, are without any basis. In fact, no details have been given and the allegations are vague. Learned Senior Counsel Shri Naik therefore submitted that, as it involves the disputed questions of facts, which require a close scrutiny of evidence, the petition may not be entertained. He also submitted that the petitioners have to prove the case against any abuse and misuse by cogent evidence, and mere allegations against the Respondent Nos. 4 to 6 may not be accepted at the face value to avoid the liability or to pass the liability. Learned Senior Counsel Shri Naik also submitted that the affidavit in reply is self-explanatory that as to how the affidavit has been obtained under threat and coercion, and therefore, no reliance could be placed on such affidavit. Learned Senior Counsel Shri Naik therefore submitted that alternative remedy as well as the remedy by way of civil suit is available and the petition may not be entertained.

In rejoinder learned Senior Counsel Shri Tanna referred to the papers to reiterate his contentions and submitted that if the consumer like the petitioners are harassed in such a way without any fault or without any control on their part in respect of the lines and the other instruments, the petition requires consideration and the right of the petitioners may be protected. He submitted that the affidavit has been sworn by Respondent No. 4 admitting about his liability and thereafter he has changed his stand, and therefore, the affidavit cannot be brushed aside.

In view of this rival submissions, it is required to be considered whether the present petition can be entertained or not.

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 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.

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 6 for recovery of the amount, but the petitioners cannot escape the primary liability for payment of the dues of the telephone line/connection. 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.