JUDGMENT

R.V.RAVEENDRAN, J.

1. Leave granted.

2. The respondent was the subscriber of telephone bearing No.40193, in Anand Town installed at the residence of its Managing Director (for convenience we will also refer to the Managing Director as the `subscriber'). The bi-monthly bills in regard to the said telephone were usually around Rs.8500. The appellant served on the respondent the following two bills aggregating to Rs.454,652 : Bill date Period of the bill Amount 1.4.1996 16.1.1996 to 15.3.1996 362,723/- 1.6.1996 16.3.1996 to 15.5.1996 91,929/- The huge billing was on account of a large number of international calls known as `party calls' or `sex talk calls' to number 001-4152-085-234 and several calls to 001-4152-085-220/230/236/239.

3. The respondent made a written complaint dated 25.4.1996 after the receipt of the first bill stating that it had been mischievously and unscrupulously billed for large number of international calls made from some other numbers, but shown as having made from its number. It also complained in the said letter that many a time, when the subscriber lifted the telephone for making calls, he used to hear some ongoing talk. The Divisional Engineer of the appellant after verification informed the respondent by letter dated 21.5.1996 that the bills were correct for the following reasons :

(a) Total line was underground and no portion of the line was exposed;

(b) Absolute control to make a call or not to make a call, was with the subscriber as the phone had dynamic lock facility.

(c) The telephone was working continuously and there was no complaint of the telephone being out of order. (Note : If the line is misused externally, the telephone of the subscriber will be dead with no dial tone).

(d) The bills showed that the calls were made daily over a long period and not on any particular single day.

(e) As the telephone was connected to an electronic exchange, there was no chance of excess metering.

4. The respondent filed an administrative appeal to the General Manager, Kheda Telecom District, Nandiad. However as the bills amounts were not paid, the telephone was disconnected on 29.5.1996. A writ petition (SCA No.4188/1996) filed by the respondent was disposed of by the High Court by order dated 29.7.1997 directing the General Manager of the appellant to examine the appeal filed by the respondent in regard to the bills in question and render a reasoned order after giving a hearing to the respondent. After hearing, the General Manager, Kheda Telecom District, Nadiad made an order dated 12.2.1998 rejecting the appeal and confirming the demands under the two bills, for the following reasons:

(i) The subscriber had not made use of the STD/ISD dynamic locking facility which was available through a sophisticated electronic exchange;

(ii) all rooms in the residence of the subscriber had plug/socket arrangements and all family members and visitors could use the parallel lines for making ISD calls (in particular `party line calls') even without the knowledge of the subscriber;

(iii) the possibility of any external misuse was ruled out as the Distribution Point Box was located within the campus premises of the respondent which was under around the clock security of the security guards employed by the respondent and no part of the underground cable was exposed;

(iv) significantly during the disputed period not even a single complaint was booked from the telephone; and though in the complaint dated 25.4.1996, it was stated for the first time that many a time when the subscriber lifted the phone to receive the call he heard someone talking on the line, no such complaint was ever made prior to 25.4.1996 to the department; and

(v) the disputed ISD calls were `party line international sex talk calls' which originated from the subscriber's telephone and having regard to the fact that these calls were made in between the calls to other stations in India in such close proximity that there was no chance of possible misuse by any