1. This petition challenges the action of the respondents of disconnecting the telephone on 6th Nov. 1984 on the ground that the petitioner has failed to pay a sum of Rs. 3536/- pursuant to the demand note sent by the respondent 1.
2. Petitioner, a partnership firm, is carrying on business of exhibiting cinemas in the name and style of Cine Theatre National and is a subscriber of a telephone which bears No. 3854. On 1st Jan., 1984 a bill was sent to the petitioner for a period covering from 15th Oct., 1983 to 15th Dec., 1983 claiming a sum of Rs. 3885/50. On this bill Rs. 125/- is shown to be the fixed rental for the period of two months, trunk call charges of Rs. 100/50 and the balance amount of Rs. 3660/- for 8100 local calls.
3. The petitioner very strongly disputed this bill and contended in his representation cum-complaint that considering the past averages and the actual nimbler of calls made on that telephone there could not be any case for 8100 calls during the period from 15th Oct. 1983 to 15th Dec., 1983. It must be stated in fairness to the department that the respondents at once acted upon this representation, split up the bill and directed the petitioner to pay presently only a sum of Ars. 3536/- as being disputed. By a letter dt. 20th Oct., 1984 the first respondent informed the petitioner that on looking into the complaint regarding excess bills, the findings are that there is no mistake either with the technical working of the meter or with the meter reading statement. It was also pointed out that no fault was found which had contributed to recording of excess calls. But, however, it is next pointed out that local calls in respect of S. T. D. calls to long distance stations have been recorded in the said bill dt. 1st Jan., 1984 and as those calls are included therein the bill is rightly made out for total number of calls of 8100. This being the position the respondent 1, therefore, wrote to the petitioner that there is no question of giving any rebate as the same is not justified ans, therefore, the petitioner was called upon to pay the sum of Rs. 3536/- on or before 29th Oct., 1984, and, however, the petitioner was further warned that this payment is to be made by that date to avoid disconnection. The demand note was annexed to that letter of 20th Oct., 1984 and as the petitioner did not comply with that demand note, it is common ground that on 6th Nov. 1984 the telephone was disconnected.
4. When this petition came up before the Court for admission, the petitioner was, however, directed to deposit a sum of Rs. 3536/- and reconnection charges of Rs. 50/- and on such deposit, the respondents 1 and 2 were directed to restore the connection of the telephone to the petitioner. This order of 19th Nov. 1984 has been complied with by both the parties.
5. Insofar as this petition is concerned the main challenge that is thrown is that in spite of the letter dt. 20th Oct. 1984, which called upon the petitioner to pay the money on that demand note on or before 29th Oct., 1984, the petitioner ought to have been given a show cause notice before the telephone was actually disconnected. For this purpose the petitioner relies on R. 421 of the Indian Telegraph Rules 1981.* Mr K. U. Aras, learned counsel for they petitioner, interprets this rule to mean that before disconnecting any telephone on any ground, it is incumbent on the department to issue a show cause notice.
6. We have, however, gone through this petition as also the affidavit filed on behalf of the respondents. Mr. V. G. Godbole, Divisional Engineer, Telegraphs, who is heading the department in Goa, has filed an affidavit opposing this petition.
7. We are satisfied that we need not decide this petition on the question whether the petitioner is required to be issued show cause notice or that we are required to interpret R. 421 of the Indian Telegraph Rules 1981,* as we are able to afford relief to the petitioner on some other grounds on facts and circumstances that have come on record.
8. It is the case of the petitioner that there is some fault with the meter or some error with recording of calls and, therefore, in no event during the relevant period of two months such a massive number of calls amounting to 8100 could at all have been recorded. In para 4 of the petition it has been mentioned that average calls that are made during the period of two months is about 500 calls and that considering the impugned bills it is 15 times the average calls that are ordinarily made by the use of that telephone. It is also the case of the petitioner that some time in the year 1978 at his instance and on payment of the prescribed fees, the S.T.D. facility of this telephone has been removed with the result that the petitioner is unable to make S. T. D. calls from this telephone. While disposing of the grievance of the petitioner the respondent 1 in his letter dt. 20th Oct., 1984 mentioned that there is no fault whatsoever in the system or working of the meter nor there is any arrow in recording the reading from the meter but it is, however, mentioned and which, in our view , is an allegation that the petitioner has clandestinely made use of this telephone for the purpose of making S. T. D. calls.
9. We would like to transcribe that para which reads thus :-
'As you know the local calls in respect of STD calls to long distance stations recorded in terms of local calls, are also included in the bill. Under the circumstances it is regretted to intimate that no rebate is found justified.'
10. There is great substance in what Mr. Aras, learned counsel for the petitioner, has argtued before us that once the S. T. D. facility is removed in the year 1978, there is no question of making any S. T. D. calls from the petitioner's telephone. In this connection it is mentioned that all telephones in the town are at first provided with S. T. D. facilities and if any subscriber wants to get rid of that facility, he has to pay a prescribed fee of Rs. 50/- and it is only thereafter that the S. T. D. facility is removed. If this be so, we do not understand how the petitioner's telephone could be still used for the purpose of making S. T. D. calls, But, however, in para 15 of his affidavit Mr. Godbole mentions, after admitting that the instant telephone is barred from S. T. D. facility, that :-
'But it is possible to get S. T. D. service on S. T. D. barred numbers as opined by the technical authorities of the Department'
Barring this bare statement there is nothing produced on record to suggest how a telephone which is barred of S. T. D. facility could still be used for S. T. D. calls for long distances nor for that matter whatever opinion has been given by the technical authorities of the department which has been referred to in para 15 of the affidavit in reply has been placed on record. It is also mentioned that in view of clandestine use of telephone, the petitioner's telephone was changed from No. 3854 to 6040 as S. T. D. calls were possible from the earlier number. We are, therefore, not inclined to accept a bald statement made in para 15 of his affidavit. On the contrary as mentioned earlier once the department is charging the subscriber a fee for getting rid of the S. T. D. facility it is safe for us to hold that on payment of that on payment of that fee the facility is removed with the result that the subscriber would not be in a position to make use of S. T. D. facility on the telephone.
11. Coming back to the letter dt. 20th Oct., 1984, from the para we have averted earlier in the judgment it is clear to us that the department does give rebate in appropriate cases and when the department thinks that such a rebate is justified. The statement made by the petitioner in para 4 that average calls for a period of two months is round about 500 calls has not been denied at all in the affidavit filed on behalf of the respondents. Once we hold that the allegation of clandestine use for the purpose of S. T.D. is not available then the statement of the petitioner in para 4 stands that the average local calls for a given period of two months is round about 500 calls. Since the department accepts that if a justification for rebate is made out rebate is given to a subscriber, we feel that this is a fit case where given a rebate and for that the average meter reading is 500 calls for a period of two months can be accepted. The facts and circumstances of this case justify this course.
12. In this view of the matter the rule is made absolute in terms of prayers (a) and (a 1). The demand note sent along with letter dt. 20th Oct. 1984 (ExhibitB) is quashed. The petitioner is entitled to the money deposited in this Court. There shall, however, be no order for costs.
13. Petition allowed.