TELECOM DISTRICT ENGINEER-/Original Opponent vs CHHOTALAL B.THAKKAR

THIS is an appeal by the Telephone Department who was the original opponent. It is not disputed that the complainant was a subscriber of telephone and was regularly paying bills. The dispute arose regarding bill dated 1.9.90 which was for an amount of Rs. 746/-. It appears that the telephone connection was disconnected on the alleged ground of non payment of arrears of Rs. 746/- on 9.10.90. It is also not disputed that the actual amount of the bill was paid on 9.10.90 since according to Mr. S.D. Dave, the learned Counsel appearing on behalf of the respondent his client could not pay the bill on 8.10.90 because the counter closed at 1 p.m. The officer of the Department present in Court also agrees that the said amount could not be accepted as the counter was closed and, therefore, the bill was paid on 9.10.90.

MR. K.M. Dave, the learned Advocate appearing on behalf of the appellant states that the Department has a power to disconnect the telephone connection if the telephone subscriber does not pay the bill within the time provided in the conditions of the bill which states that the bill shall be paid within 15 days. According to MR. Dave the bill was made on 1.9.90 and in usual course it must have been posted within a day or two and the Department waited for a very long time and disconnected the same on 9.10.90 The complainant has stated on affidavit that on account of two fractures he had gone to Bombay in September and returned to Bhuj in the 1st week of November and at that time he saw that his telephone was disconnected. He sent his daughter to the telephone office but they insisted deposit of Rs. 1,200/- and connection charges of Rs. 100/-. He, therefore, agreed to pay the said amount though, according to Mr. Dave, the learned Advocate of the complainant the payment of the bill was made on the next day i.e. on 9.10.90. The complainant has specifically stated in the affidavit that when his clerk Atul Joshi went to his residence the maid servant Gulshan stated that somebody has throw paper which was laid on the table and the paper was nothing but the telephone bill and it also appears that Mr. Joshi tried to make the payment on 8.10.90 but the same could not be made as stated above and, therefore, the payment was made on 9.10.90. The dates are important because there was one telephone rule which obliges the Telephone Department to restore the connection if the full payment is made within 10 days from the date of disconnection.

The complainant had filed a very long affidavit supported by the affidavit of Atul Joshi whereas the Telephone Department has not filed any affidavit to contradict the version given by the complainant.

NOW it cannot be disputed that the power given under Rule 443 to disconnect the telephone connection is a very drastic power especially when the telephone has become a daily necessity and very important means of communication. According to our opinion this power has been given not to augment the revenue of the Government but to punish the persistent defaulters. This power should therefore be very sparingly used and not to be used to recover small arrears and thereby to punish the regular subscribers. It is possible sometimes that a person may not be able to pay the bill in time as in this case where the complainant had gone to Bombay for medical treatment. In any view of the matter before the Department can exercise this power under Rule 443 the Department has first to establish the condition precedent i.e. serving of the bill to the complainant. Now Rule 442 provides that "any notice, bill or demand from the Telegraph Authority for any fee or charges due from a subscriber may be served by delivery to the subscriber or by sending it by Post to the address of the subscriber or by leaving it at the premises in or upon which the apparatus is installed". Now, premises necessarily means the covered premises and not the compound. The original bill produced by the advocate of the respondent has been shown to the Counsel of the Department. The contention of the Counsel of the Department is that the bills are sent in duplicate and the bill was sent, to the complainant by post. Therefore we have a contradictory statement. The bill which has been disputed appears to have been sent by post but the affidavit and other facts show that the bill was thrown in the compound. The Telephone Department has not produced any evidence nor any averment has been made that actually the bill was sent by post or was served personally or delivered at the premises. This condition precedent has not been fulfilled either by making averment or filing affidavit. We have no alternative except to come to the conclusion that the Department has not send the bill by post but has thrown the bill in the open compound otherwise the maid servant could not get the same since the premises was closed.

IN any view of the matter, we are of the opinion that before the drastic power under Rule 443 is exercised the Department has to satisfy two conditions viz. (i) that the bill has been served upon the subscriber in the manner shown in Rule 442; (ii) that the bill has been served atleast 15 days prior to the proposed disconnection.

IN the instant case neither of the aforesaid conditions proves to have been satisfied. Therefore the District Forum was not wrong in passing the impugned order. Lastly, Mr. S.D. Dave argued that in the instant case it is an admitted position that the bill was paid on 9.10.90 i.e. on the same day on which the telephone was disconnected though the complainant tried to pay the bill through his clerk earlier on 8.10.90. It is also not understandable as '' to why the concerned officer who knew that the subscriber was ready to pay and actually tried to pay the bill on 8.10.90 should rush to take an action to disconnect the phone. This is the only possible inference. The Department has not disconnected the phone for so many days and when the subscriber tries to make the payment they rush to disconnect the telephone connection at 8 a.m. which means that this power is exercised for augmenting the government revenue and/or harassing the subscribers. Considering the facts and circumstances stated above, we find that the District Forum has not committed any error. ORDER The appeal is dismissed. In the circumstances there will be no order as to costs. Appeal dismissed.