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Dr. Debi Prasad Pal Vs. General Manager, Calcutta Telephones (South) and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberConstitutional Writ Jurisdiction W.P. No. 19923(W) of 1998 A.S.T. No. 1755 of 1988
Judge
Reported in(2001)1CALLT34(HC)
ActsConstitution of India, 1950 - Article 226;; Housing and Telephone Facilities (Members of Parliament), Rule, 1956 - Rule 4A;; Member of Parliament (Travelling and Daily Allowances) , Rules, 1957 - Rules 21, 22 and 23(1);; General Clauses Act, 1897 - Section 27;; Indian Telegraph Act, 1885 - Section 7 - Rules 439 and 442;; Indian Telephone Rules, 1957 - Rule 443
AppellantDr. Debi Prasad Pal
RespondentGeneral Manager, Calcutta Telephones (South) and ors.
Appellant Advocate Dr. Debi Prasad Pal (in person), ;Mr. Jyotosh Mazumder, ;Mr. R.K. Biswas and ;Mr. Abhratosh Mazumder, Advs.
Respondent AdvocateMr. Mintu Kumar Goswami, Adv.
Cases Referred(Late Nawab Sir Osman Ali Khan v. Commissioner of Wealth Tax
Excerpt:
- a. lala, j.1. dr. debi prasad pal, an eminent lawyer of this court has filed this writ petition and moved before this hon'ble court in person challenging two notices being dated 10th september, 1998 and 22nd september, 1998 issued by chief account officer (south) of calcutta telephones by which the petitioner was threatened to disconnect his telephone lines being no. 475-3934, 475-2177 and 474-9377 on account of the purported non-payment of total sum of rs. 5,26,980/-.2. the contents of the notices are set out serially :notice dated 10th september, 1998.no. cgm/lop/ex-mp-4/97-98 dated at cal 19 the 10,09.98.sub : outstanding bills of rs. 1,42,775/- against delhi tel no. 371-8409 & rs. 3,84,205/- against consty tel no. 474-9377.sir,we have been directed by gm(tr) mtnl, delhi to take.....
Judgment:

A. Lala, J.

1. Dr. Debi Prasad Pal, an eminent lawyer of this Court has filed this writ petition and moved before this Hon'ble Court in person challenging two notices being dated 10th September, 1998 and 22nd September, 1998 issued by Chief Account Officer (South) of Calcutta Telephones by which the petitioner was threatened to disconnect his telephone lines being No. 475-3934, 475-2177 and 474-9377 on account of the purported non-payment of total sum of Rs. 5,26,980/-.

2. The contents of the notices are set out serially :

Notice dated 10th September, 1998.

No. CGM/LOP/EX-MP-4/97-98 Dated at Cal 19

the 10,09.98.

Sub : Outstanding bills of Rs. 1,42,775/- against Delhi tel No. 371-

8409 & Rs. 3,84,205/- against Consty tel No. 474-9377.

Sir,

We have been directed by GM(TR) MTNL, Delhi to take appropriate action according to Indian Telegraph Rules for realisation of outstanding telephone dues from Hon'ble Ex-MPs. In view of this we shall be constrained to withdraw the outgoing facility of your working telephone in Calcutta i.e. 474-9377 on the afternoon of 14.9.98 unless payment particulars of pending bills of Delhi Tel No. 371-8409 and Consty Tel No. 474-9377 are submitted to the undersigned at 3A, Gariahat Road by the forenoon of 14.9.98 for reconciliation.

Inconvenience caused is sincerely regretted.

Thanking you,

Yours faithfully,

Chief Accts. Officer

(South).

Notice dated 22nd September, 1998.

No.CGM/LOP/EX-MP-4/97-98 Dated at Cal 19

the 22-09-98.

Sub : Outstanding bills of Rs. 1,42,775/- against Delhi tel No. 371-

8409 & Rs. 3,84,205/- against Consty tel No. 474-9377.

Sir,

In compliance with Mumbai High Court Order (Ref : Writ Petition No. 902 of 1997) the outgoing facility of your telephone No. 474-9377 has been withdrawn since 15.9.98. If the outstanding dues have already been paid, then you are requested to kindly submit the payment particulars to the undersigned for reconciliation and immediate restoration of the above mentioned telephone number.

However, if the payment particulars are not forwarded to us by 7.10.98, we shall be constrained to withdraw the incoming facility and disconnect the other telephones working in your name, 474-3934 and 475-2177 on 8.10.98. Action taken in this regard will be according to Indian Telegraph Rules. In case of any discrepancy it may kindly be brought to the notice of the undersigned. Inconvenience caused is sincerely regretted.

Thanking you,

Yours faithfully,

Chief Accts. Officer

(South).

3. It appears from the first notice that the same was issued for an outstanding bill amount of Rs. 1,42,775/- againt Delhi telephone No. 371-8409 and Rs. 3,84,205/- against Constituency telephone No. 474-9377. Therefore, it is abundantly clear that the claim, if any, as made are against these two telephone numbers alone.

4. It further appears from the notice that the same was issued on 10th September, 1998 with a direction of submission of the particulars of pending bills by 14th September, 1998 otherwise, immediate withdrawal of the service.

5. The petitioner became surprised to receive the letter and intimated the appropriate authority on 14th September, 1998 by saying that out of 2 telephones Nos. as aforesaid, the telephone installed at New Delhi was made under the Parliamentary Privileges Scheme, when he was a Member of Parliament. After the ceassor of the Membership of the Parliament, in February 1998, the facility of New Delhi telephone has been withdrawn by Mahanager Telephone Nigam Ltd. So far the Calcutta telephone is concerned the same has been converted to the personal telephone of the petitioner after ceaseing to be a Membership of the Parliament and the bill amount was paid regularly. There is no such bill amount is outstanding as alleged, in respect of Calcutta Telephone for a sum of Rs. 3,84,205.

6. The second notice was issued on 22nd September, 1990 as aforesaidby intimating that such Calcutta Telephone No. 474-9377 has beenwithdrawn since 15th September, 1998 and if payment particulars are notforwarded by 7th October, 1998 the authority concerned will constrain towithdraw the incoming facility and disconnect the other telephones workingin the premises of the petitioner at Calcutta being No. 474-3934 and 475-2177 by 8th October, 1998.

7. Therefore, it is also crystal clear that apart from the telephones at New Delhi and Calcutta in respect of the Parliamentary Constituency, other telephones under the second notice are apparently personal telephones of the petitioner herein even then the authority wanted to touch due to purported default.

8. Therefore, for the purpose of coming to the appropriate conclusion in this respect two parts are to be considered by this Court.

9. The first part is existence of the petitioner as a Member of Parliament and facilities in connection thereto, while second part is existence of the petitioner, in person. In addition, thereto one very important technical aspect has to be considered that is about the authority of the Chief Accounts Officer (South), Calcutta Telephones asking for realisation of the arrear amount, if any.

10. It is well know that all the telephone authorities have different zone of consideration. Mahanagar Telephone Nigam Ltd. has its zone in New Delhi which is also separate from the Mahanagar Telephone Nigam Ltd. at Mumbai. It can also be said that such two Mahanager Telephone Nigams Ltd. can operate as one unit in between the two cities i.e. New Delhi and Mumbai. Now the question arose as to whether such Mahanagar Telephone Nigams Ltd. has any authority in respect of the telephone of the Calcutta Telephone? If not, can it be said the notice of the Calcutta Telephones in this respect is valid notice? Technically, it is apparent that Calcutta Telephones has no authority to issue a notice of disconnection on the basis of any information of Mahanagar Telephone Nigam Ltd. which is altogether separate entity. Therefore, a question may arise how the default, if any, of other zones can be recovered? Hence, the answer of the question is necessary as to under what capacity such telephone was installed and the petitioner obtain the service and what is the Modus Operandi in this respect.

11. There is a Rule of the Members of Parliament which is called as the Housing and Telephone Facilities (Members of Parliament), Rule 1956. Such Rules is amended upto 30th August, 1997. The petitioner ceased to be a Member of Parliament after February, 1998. Therefore, the Rules in its entirety including the Amendment upto 30th August, 1997 will be applicable in this case.

12. Rules 4 and 4A of such Rules speak as follows :

4. Exemption in respect of telephone charges-

(1) No charges shall be payable by a Member in respect of the installation and rental of one telephone installed either at his residence or at his office in Delhi or New Delhi, and no Member shall be liable to make any payment in respect of the first fifty thousand local calls made from the telephone during any year.

(2) In addition to the exemption in respect of telephone charges admissible under the provisions of sub-rule (1), a Chairman of a Finance Committee shall be exempted from payment of any charges for calls made from the telephone installed at his residence in Delhi or New Delhi.

Explanation.--In this sub-rule, a 'Parliamentary Committee' does not include a select or Joint Committee on a Bill or any other ad-hoc committee.

(3) Without prejudice to the provisions contained in sub-rule (1), no charges shall be payable by a Member in respect of the installation and rental of one telephone installed either at his usual place of residence, or at a place selected by him, being a place-

(I) Situated within the state which he represents (or within the State in which he resides) in the case of a member of the Council of States, other than a member nominated to that House;

(II) Situated within the State in which Constituency is or within the State in which he resides, in the case of a member of the House of the People, other than a member nominated to that House;

(III) approved by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be in the case of nominated members; and no Member shall be liable to make any payment in respect of the first fifty thousand localcalls made from that telephone during any year:

Provided that the place selected by the Member or approved by the Chairman or the Speaker, as the case may be shall be within the area of operation of an existing telephone exchange.

(4) No charges shall be payable by a Member for an additional area/ portion not exceeding ten metres in length or a plug and socket added to a telephone installed under sub-rule (1) or sub-rule (3).

4A. Other exemptions in respect of telephone charges.

(1) Where metering facility in respect of the telephone installed under sub-rule (3) of rule 4 is available, local calls made from that telephone and local calls made from the telephone installed under sub-ruled) of rule 4 shall be pooled together and a Member shall not be liable to make any payment in respect of one lakh calls made from the two telephones during any year.

(2) Where metering facility in respect of the telephone installed under sub-rule (3) of Rule 4 is not available, no member shall be liable to make any payment in respect of the local calls made from that telephone and in respect of another fifty thousand local calls, in addition to fifty thousand local calls made from the telephone installed under sub-ruled) of rule 4 during any year.

(3) Where a member has either not been provided with a telephone or does not desire to be provided with a telephone under sub-rule (3) or rule 4 he shall not be liable to make any payment in respect of addition fifty thousand local calls made from the telephone installed, under sub-rule (1) of rule 4 during any year.

(4) The trunk call bills of the Members may be adjusted within the monetary equivalent of the ceiling of one lakh local calls per annum as aforesaid.

(5) Excess telephone calls made over and above the pooled total of 50,000 free locals per annum in respect of the two telephones installed under sub-rule (1) and sub-rule (3) of rule 4, may be adjusted against the one lakh free calls allowed on the two telephones for the next year.

13. Let us analyse the Rules as above, Rule 4 speaks there is no question of payment of 50,000 local calls made from the telephone during one year and no installation charges and rental of one telephone for Delhi, in addition thereto. There is a total exemption of the Chairman of the Parliamentary Committee for payment of any charges of calls from telephone at Delhi.

14. Secondly, such Member can install a telephone at his usual place of residence and again he entitled for 50,000 free calls made during one year.

15. Thirdly, under Rule 4A total free calls for a year in respect of a Member of Parliament is one lakh.

16. Finally, excess telephone calls made over and above the pool total calls as above will be adjusted against the one lakh free calls on the two telephones for the next year.

17. Therefore, making any claim in respect thereto as against a Member of Parliament should be built taking into account the aforesaid four aspects. Therefore, the next vital question is what is the bill herein? According to the petitioner no bill at any point of time forwarded to the petitioners.

18. In any event, now the next phase is where the bills are to be forwarded? There is another Rule existing being named as Members of Parliament (Travelling and Daily Allowances), Rules 1957. Rule 23(1) of the said Ruls speaks as follows :

23(1). Whenever any Government dues, such as house rent, telephones dues, are reported to be outstanding against a Member and appropriate claims or bill in support thereof are received from the authority concerned, an amount equivalent to such dues shall be deducted from the next salary, or travelling and daily allowances bills to be prepared for and on behalf of the Member and the balance shall be paid to him.

19. Therefore, it appears therefrom that there is a process of recovery of dues from a particular member. Now the question arose whether it will be applicable as against the members only or Ex-members of the Parliament. In this respect there cannot be no much of say because after being Ex-members of Parliament liable to pay arrears fee, any fee during his tenure. Therefore, it is also applicable to Ex-members of Parliament. There is a provision under Rule 2(b) of the Members of Parliament (Travelling and Daily Allowances), Rules 1957 speaks as follows :

'Controlling Officer' means officer of the Lok Sabha Secretariat empowered by the Secretary to the Lok Sabha or an Officer of Rajya Sabha Secretariat expowerd by the Secretary to the Rajya Sabha to countersign the travelling and daily allowances bills of Members of the Lok Sabha or the Rajya Sabha as the case may be.'

20. Although, power of such Controlling Officer has 'not been strictly entrusted specifying the case of the telephone bills but after the conjoint reading of this Rule along with the Rule 23(1) as above it appears that such authority will be entitled to act for realisation of the amount due and payable in respect of the telephones from the Members of Parliament or Ex-Members of Parliament for the tenure. Therefore, if any, telephone amount is recoverable or adjustable by the Manager, Telephone Nigam Ltd. from any Member of Parliament or Ex-Member of Parliament during the tenure, they have to file their requisite bills to the Controlling Officer or to an appropriate person in the Secretariat of the Lok Sabha or Rajya Sabha for adjustment of the same. There cannot be any by-passing method for the same. It is to be remembered that the Members of Parliament are, of course, privileged person than the ordinary citizen by virtue of their duty towards the society. The Court cannot be influenced in this respect about any individual act of any Member or Ex-Members of the Parliament. Court cannot also be influenced by any statement of any members or ex-members of the Parliament either therein or in the newspaper or for any habitual default Court can only proceed on the basis of the law applicable to the Members of the Parliament as a whole. If there is any default that is the subject matter of the Controlling Officer or any member of the Secretariat of the Lok Sabha or Rajya Sabha in this respect which cannot be applicable in rem unnecessarily, otherwise it will be too harsh and harassing to them.

21. According to the petitioner, he was a Member of Parliament from November. 1989 to December, 1997. During the said period, he was also appointed as a Member of 10th Finance Commission from June 1992 to November, 1994 with the rank and status of a Minister of State of Central Government. The petitioner was also appointed as a Chairman of the standing Committee on finance during the period 1992 to 1995. The petitioner was also appointed as a Union Minister of State for Finance from 13th September. 1995 to May 1996. The Chairman of the Parliamentary Committee is exempted from payment of any charges for calls made from the telephone installed at his residence in New Delhi. During the period when the petitioner was a Union Minister of State for Finance, the petitioner was exempted from payment of any charges for telephone calls made from his New Delhi residence. The petitioner was fully exempted from any telephone charges during his period of Chairmanship of the Standing Committee on Finance in Parliament i.e. from 1992 to 1995. The petitioner also during the period when he was a Member of Finance Commission was not liable for payment of charges for calls made from the telephone installed at his residence in New Delhi, as his appointment as a Member of Finance Commission was in the rank and status of a Minister of State. In addition to the aforesaid exemption, the petitioner is also entitled to exemption from telephone charges in respect of his two telephones, one at New Delhi and other at his Calcutta residence in respect of one lakh calls during one year.

22. From the statement aforesaid it is abundantly clear that either the appropriate bills are not raised upon the Secretarist of the Lok Sabha and Rajya Sabha or proper adjustments are not given in respect thereof. A sudden claim of any huge amount as sought for in the said two notices cannot be acceptable in the eye of law.

23. According to the petitioner from November 1989 to 4th December 1997 the petitioner did not receive any bill for telephone charges in respect of the said two telephones either in the New Delhi residence or at his Calcutta residence. After the petitioner ceased to be a Member of Parliament, he was allowed to have a regular telephone connection at Calcutta as a permanent one in his personal capacity and necessary charges also to be paid by the petitioner. The telephone at Calcutta being No. 474-9377 which was, during his period of being a Member of Parliament provided by the Ministry of Parliamentary Affairs, allowed to be convered into his private account permanently after 4th of December, and the petitioner is liable to pay all charges as his personnal telephone after such date.

24. So far the telephone at New Delhi residence being No. 371-8409 as provided by the Ministry of Parliamentary Affairs had been disconnected from 8th of December, 1997 due to ceassation of the petitioner's member-ship of Parliament.

25. Rule 442 of the Indian Telegraph Rules 1951 prescribes for service of the notice and bills. It is provided therein 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. Therefore, it is necessary to find it out as to whether any bill or bills were at all raised upon the petitioner or not, because such important aspect is the crux of the case herein. If the petitioner is a Member of Parliament or accountable as a Member of Parliament bills and notices are to be served upon the Secretariat of Lok Sabha or Rajya Sabha, if the petitioner is not accountable as a Member of Parliament or any other capacity under the Parliament then his accountable personally. In such case liability arises on account of the Calcutta Telephones but not by Calcutta Telephones on account of the Mahanagar Telephone Nigam Ltd.

26. In the instant case fact remains that the petitoner is answerable personally for discharging his functions as a Member of Parliament or otherwise gathered by the Parliamentary activities personally on the strength of two letters issued by the Calcutta Telephones on account of the Mahanagar Telephone Nigams Ltd., therefore, such act is not, on the part of the authority, available in law, notices if any, therefore, the notices if at all served under Rule 442 of the Indian Telegraph Rules 1951 upon whom it was served that is the matter of consideration. If it is, served upon the Secretariat of the Parliament what is the outcome of the same is parameter of the consideration, if not the notices as served by the Calcutta Telephones as available from the records are not at all sustainable notices.

27. Petitioner case is that the Telephone at New Delhi has already been disconnected by the cessation of the Membership of the Parliament. Therefore, in any event, such part cannot be part and parcel of disconnection of telephone line in Calcutta by the Calcutta Telephones.

28. Petitioner, if any, accountable to the Secretariat of the Parliament. The claim of the Mahanagar Telephone Nigam Ltd., if any, is to be routed through the Secretariat of the Parliament, not directly. Similarly, in case of the telephone of Calcutta being No. as 474-9377 which has been converted into a personal telephone is partially accountable through the Secretariat of the Parliament when the petitioner was a Member of Parliament, and partially by himself when the same is converted as his personel telephone. So far first part is concerned, again the claim, if any, should be routed through the Secretariat of the Parliament and for the remaining directly to the petitioner. As the petitioner contended before this Court that as and when such telephone is converted as personal telephone, there is no bill herein on his behalf, therefore, the claim is to be in respect of the period being Member of Parliament and should be routed through the Secretariat of the Parliament.

29. It is a question of privity. If the claim of such authority lies against the Member of Parliament then they have no privity whatsoever against the person concerned as his personal capacity. If the petitioner is defaulter in person then in that case claim of the appropriate authority lies as against the petitioner. In the instant case even the Calcutta Telephones has not issued any notice for their personal capacity which is apparent from the notices itself. Therefore, the claim of the Calcutta Telephones cannot be held to be the legal claim due to non-availability of the privity. Under such circumstances, also the claim of the respondents are not sustainable.

30. The petitioners also contended that notice, or bill, or demand under the Indian Telegraph Rules 1951 has to be served in accordance with section 27 of the General Clauses Act, i.e. by Registered Post to complete course of effective service. By not doing so, nobody can claim that notice, bill or demand was served upon the subscriber, if it is so, in that case the respondents are to be directed to produce such bill, such notices, such demands before the Court to substantiate that at any point of time bills were raised.

31. Dr. Pal has cited catena of decisions in this respect. First of such decision is reported in 168 ITR (SC) (Manmohanlal & Ore. v. Income Tax Officer, Ward-E, City Circle, Cuttack) at its page 618 to substantiate about the effective notice of demand, in case of similarly placed situation under Income Tax Act.

32. He also cited a judgment reported in (Tarun Bharat Sangh, Alwar v. Union of India & Ors.) in its page 4 (sic) to substantiate that when there is no material on record about the registered cover was tendered, it can be presumed that due service does not arise.

33. Dr. Pal again cited a judgment reported in AIR 1990 GAu 24 (Joyjit Das v. State of Assam & Ors.) at its page 24 to substantiate that on a conjoint reading of Rule 439 and 442 of the Rules as aforesaid, it is clear that only on non-payment of the charges after service of the bill in the manners specified above, the subscriber can be said to be in default of payment and the question of disconnection of the telephone for such default may arise. Service of the bill, therefore, is a condition precedent for exercise of the power of disconnection and there must be material on record to satisfy the authority concerned that the bill had been presented too and the subscriber despite such service/presentation had defaulted in making payment.

34. He also cited another judgment reported in AIR 1990 GAu 47 (Santosh Singh v. Divisional Engineer, Telephone, Shillong & Ors.) and relied upon page 24 (sic) therein contended that disconnection should not be ordered unless the written notice is sent to the subscriber at the latter's cost by registered post with acknowledgement due.

35. I do not think that Dr. Pal's case of non-service of notice or non-appropriate service of notices, bills, demands is much better case than the points he has taken earlier. The service of the bills, demands, notices are disputed questions herein which has to be ascertained by the Court in the proper case. But when the Court found that there is no privity existing in between the petitioner and the Calcutta Telephones in the personal capacity since there is no unpaid bill amount nor privity exists in between himself and Mahanager. Telephone Nigams Ltd. since the accountability should be routed through the Secretariat of the Parliament, notices, bills, demands, if any, by the Calcutta Telephones on the instruction of the Mahanagar Telephone Nigams Ltd. directly upon the petitioner is bad in law.

36. Next submission, as 1 have understood is made in respect of the public interest litigation as disposed by the Bombay High Court being writ Petition No.902 of 1997 (Manubhai Pragaji Vashi v. Union of India & Ors.). It appears from there that the intention of the petitioner was to establish that there is no difference in between the ordinary citizen and Member of Parliament, therefore, the unpaid amount, if any, can be recovered from them. I fail to understand that how the ratio of the judgment is applicable in the present case. In the judgment it was held that the amount is recoverable from the Member of Parliament or from the Ex-member of Parliament, but at the same time it was held that courses are to be taken as per the Rule 21 & 22 of the Members of Parliament (Travelling and Daily Allowances), Rules, 1957. Therefore, now when the question before the Court is the executability, such executability cannot be given effect to without being routed through the Secretariat of the Lok Sabha. Under such circumstances, the judgment as delivered by the Bombay High Court has no relevance whatsoever in respect of the crux of the case available hereinfor the purpose of appropriate decision.

37. It is to be remembered again and again that the telephones in question were installed at New Delhi or at Calcutta at the instance of the Ministry of Parliamentary Affairs. Therefore, the accountability lies in between the authority and the Secretariat of the Parliament in this respect. Therefore, the bills are to be produced before such authority for their consideration and taking into account an appropriate adjustment. Even thereafter, if any, amount is due and payable i.e. to be recoverable by the Secretariat of the Parliament from the members of ex-members as because the members become ceased to be a member. No direct privity exists in between the authority and the petitioner unles the same is in respect of dues for his personal capacity for such period. Since the bills are made for when the petitioner was the Member of Parliament, the authority cannot take any step or further steps personally as against the petitoner when he is not the defaulter in his personal capacity.

38. The next episode is in respect of the authority of the Calcutta Telephones to issue a notice of disconnection of other telephones being No.474-3934 and 475-2177 under notice dated 22nd September, 1998 which are not at all the subject matter of dispute herein. Therefore, such stand is apparent outcome of vendetta.

39. Dr. Pal cited the judgment reported in : (1985)IILLJ206SC (Union of India & Anr. v. Tulshi Ram Patel) at its page 1465 which is parallel to : (1985)IILLJ206SC to submit that the power of disconnection of the telephone under Rule 443 of the Indian Telephones Rules, 1957 is to be confined only to the particular telephone or telephones in respect of which a subscriber is purportedly held to be the defaulter. Such power cannot be exercised in respect of other telephones of the subscriber in respect of which there is no default in the payment.

40. Dr. Pal has rightly pointed out that the telephone authority receiving the rental in advance on monthly basis or bi-monthly basis or annual basis. Thus, if a rental is paid in advance before the commencement of the period during the continuance of the said period, the subscriber has got a legally vested right to telephone service in respect of that period for which rental has been paid in advance during the period for incoming calls and also for limited number of free outgoing calls. If there is a default payment of charges on one or more telephones, the authority has no competence or jurisdiction to disconnect the other telephones for which rental is paid in advance and also the bills have been paid in full.

41. Learned counsel appearing for the respondent has mainly attacked the point of maintainability of the writ petition one the ground of availabiliy of the alternative remedy under 7(b) of the Indian Telegraph Act, 1885. He has made his submission that if there is any dispute in respect of the bill there is a remedy under the law that is a process of arbitration which is the course of alternative proceedings under the above section of the Act. He contended that when the statute provide a complete machinery for obtaining relief against the order passed by the authorities, the petitioner cannot be permitted to avail the other machinery and invoke the jurisdiction of the High Court under Article 226 of the Constitution of India.

42. He cited a judgment reported in : [1988]1SCR899 (Gujarat University v. Shri N.U. Rajguru & Ors.) and relied upon page 6 (sic) therein. He also relied upon in this respect a Division Bench judgment of this Hon'ble Court reported in 1998(2) CLJ 109 (General Manager, Magma Area, Eastern Coalfields Ltd. v. Sri Gopal Ch. Mondal & Ors.) to establish a similar point.

43. This Court was the member to the Division Bench delivered the judgment and possibly for the same, the learned counsel appearing for the respondent authority became anxious and enthusiastic to cite such portion of the judgment. I have no conflict with the laid down principle because it is by now well settled that when a complete machinery for alternative remedy is available under the statute, a writ jurisdiction, Article 226 of the Constitution of India not be invoked.

44. The point herein, as argued by the respondent is totally different and for such reason I am not prima facie satisfied that the dispute is referable for adjudication by way of arbitration under section 7(b) of the Indian Telegraph Act, 1885. Such simple question is about the privity. In an arbitration to contracting party may go for arbitration either statutory or otherwise but when the very existence of the privity is under dispute invocation of the writ jurisdiction of this Court cannot be outright rejected at the therehold. Moreover, the petitioner is entitled for certain statutory right, therefore, if such right is infringed, petitioner cannot be debarred from invocation of the writ jurisdiction. Moreover, when invocation appears to be the crux of the case about the privity, the question of applicabilty of section 7(b) in this respect appears to be non est. Under such circumstances, the further judgment being 68 CWN 601 (Sk. Kansur Ali v. Sk. Saukat Ali & Ors.) have no application in this respect.

45. The petitioner also made his further submission in respect of the applicability of section 7(b) of the Indian Telegraph Act, 1885 by saying that when the authority has no jurisdiction, competence or authority to pass such order of the connection of the telephone line of the petitioner. The point cannot be adjudicted by the arbitrator. This is a clear case of violation of fundamental rights and principles of natural justice and relied upon a judgment reported in : AIR1999SC22 (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors.) parallel to : AIR1999SC22 (Whilpool Corporaton v. Registrar of Trade Marks, Mumbai & Ors.) and also : 1987(32)ELT8(SC) (Dr. Smt. Kuntesh Gupta v. Management of Hindu Kenya Mahavidhyalaya, Sitapur (U.P.) page 12 (sic) of the same.

46. He also stated that he has challenged the order of disconnection being without jurisdiction and in violation of principles of nature justice. Therefore, such plea cannot be available in the alternative remedy before the arbitrator. He cited a judgment on that being : AIR1985SC1147 (Ram and Shyam Company v. State of Haryana & Ors.) at page 275.

47. He also cited a judgment reported in : AIR1980Ker201 (P.S Anthappan v. The State of Manipur, Telephones) to establish that when the telephone already disconnected there is very little practical purposes to be served by the arbitrator. He also stated that the writ petition is not only passed on dispute as to the quantum of the bill amount, but also in respect of various other factors including applicability of jurisdiction and competence of the authority in view of the Housing and Telephone Facilities (Members of Parliament) Rules, 1956, as well as the Members of Parliament (Travelling and Daily Allowances) Rules, 1957.

48. He also cited few other judgments in this respect only refer herein to avoid the repetation being : (1987)ILLJ17SC (Indian Oil Corporation Ltd. v. The State of Bihar & Ors.) : [1986]162ITR888(SC) (Late Nawab Sir Mir Osman Ali Khan v. Commissioner of Wealth Tax, Hyderabad) paralled to AIR 1987 SC 552 (Late Nawab Sir Osman Ali Khan v. Commissioner of Wealth Tax, Hyderabad), : (1997)ILLJ415SC (State of Manipur v Thinjujam Brojen Meetei).

49. Next part of the submission of the respondent is in respect of the availability of the free calls for the period from 1989 to 1999, from 1992 to 1997 and from 1997 onwards. According to the respondent the Members of the Parliament are entitled for 30,000 free calls for the first period, 50,000 free calls for the second period and one lakh free calls for the third period. In any event, I am not concerned with the same because that it the subject matter of the Secretariat of the Parliament to take into account.

50. The next part is in respect of the applicability of the Division Bench judgment of the Bombay High Court to which also I have already discussed. But the ratio of the judgment also the recoverable measure is to be done by application of Rule 23(1) & 23(2) of the Members of Parliament (Travelling and Daily Allowances) Rules 5,1957 by not forwarding the matters to the appropriate Secretariat of the Parliament and by serving a notice directly upon the petitioner, the authority concerned cannot get the blessings of the Bombay High Court. This is the interpretation of this Court.

51. So far the merit of the case of the respondent is concerned about the despatch of the bills upon the respondents has not very much attracted this Court because of the other available better parts, but as to whether the bills were forwarded or not that is also to be submitted before the Secretariat of the Parliament who alone have authority but not to the petitioner directly. Therefore, disconnection, if any, will be the outcome of appropriate adjustment of accounts by the Secretary of Parliamentary Affairs being forwarded by the Mahanagar Telephone Nigams Ltd. The authority of the Calcutta Telephones has no jurisdiction whatsoever to issue a notice to disconnect the personal telephone or telephones of the petitioner on account of the purported claim against him being the Members of Parliament or for such period when he was under any appropriate capacity as stated above.

52. Therefore, in all, the writ petition succeeds. The impugned notices being No. CGM/LOP/Ex-M.P.-1/1997-98 dated 10th September, 1998 and No. GGM/LOP/Ex-M.P.-4/1997-98 dated 22nd September, 1998 stand cancelled. The authority concerned are restrained permanently from giving any effect or further effect of such notices without intervention of the Secretariat of the Parliament. Accordingly, writ petition is disposed of without any order as to costs.

Vakalatnama, if filed ceased to take effect since the petitioner appearedin person.

Prayer for stay is made, considered and refused.

Urgent exroxed certified copy of the judgment and order will be supplied to the parties within a period of 7 days from the date of putting requisition.

53. Petition disposed of


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