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GAUHATI HIGH COURT
A.Raghuvir, S.P.Rajkhowa, JJ.
Parag Engineering Works -Appellant
Versus
Union of India -Respondent
Civil Rule No. 508 of 1988
Decided On : 06-06-1988
TELEPHONE SERVICE - RULES AND REGULATIONS - INTERPRETATION AND APPLICATION - COURT'S POWER TO ORDER SPECIFIC PERFORMANCE - LIMITATIONS - ARBITRATION AS A REMEDY.
Fact of the Case:
The petitioner, a subscriber of a telephone service, filed a writ petition seeking various reliefs, including a declaration that Rule 443 of the Indian Telegraph Rules, 1885, is ultra vires, a direction to the Telephone Department to change the indicator of the telephone, and a refund of excess amounts paid by the subscriber. The Telephone Department resisted the petition, contending that the complaints made by the subscriber were attended to and that the telephone was not out of order.
Finding of the Court:
The court held that the complaints made by the subscriber were not of such a nature that the court could order specific performance of the Telephone Department's obligations. The court also held that Rule 443 of the Indian Telegraph Rules, 1885, was not ultra vires and that the subscriber had an alternative remedy of arbitration under Section 7-B of the Indian Telegraph Act, 1885.
Issues: 1. Whether Rule 443 of the Indian Telegraph Rules, 1885, is ultra vires the Indian Telegraph Act, 1885? 2. Whether the court can order specific performance of the Telephone Department's obligations to provide telephone service? 3. Whether the subscriber has an alternative remedy of arbitration under Section 7-B of the Indian Telegraph Act, 1885?
Ratio Decidendi: 1. The court held that Rule 443 of the Indian Telegraph Rules, 1885, is not ultra vires the Indian Telegraph Act, 1885, as it is a valid exercise of the rule-making power conferred on the Telegraph Authority under Section 7 of the Act. 2. The court held that it cannot order specific performance of the Telephone Department's obligations to provide telephone service, as such an order would involve the performance of a continuous duty which the court cannot supervise. 3. The court held that the subscriber has an alternative remedy of arbitration under Section 7-B of the Indian Telegraph Act, 1885, which provides for the determination of disputes between the subscriber and the Telephone Department by arbitration.
Final Decision: The court dismissed the writ petition, but expressed its hope that the Telephone Department would take steps to change the indicator of the telephone if it was technically possible to do so.
The firm of Parag Engineering Works is a partnership firm with its Head Office at Tinsukia in District Dibrugarh. The firm runs a branch office at Gauhati where the firm subscribed a - telephone bearing No. 27010 with STD facility. The controversy in this case relates to that telephone. In this judgment the firm will be referred as the 'subscriber' of the telephone.
2. The performance of the telephone was frequently found by the subscriber faulty. The subscriber complained of the faults to the Telephone Department. The subscriber was informed that “there was some fault in the earthling.” The subscriber complained of. inflation of bills in letters of December 14, 1985, January 6 and April 17 of 1987 and in letters of March 17, May 2, June 1, and October 27, 1987 complained of non-performance of the apparatus unduly for over a long period but nothing was done to rectify the faults. The Telephone Department at one stage informed the subscriber of cable fault as a chronic problem by one of the officers of the Department. It was suggested the performance of apparatus could be improved if only the indicator of the apparatus is changed. As to the indicator the local Chamber of Commerce at Gauhati organised a meeting at the instance of the subscriber with the Telecom District Manager on May 30,1988. In that meeting the District Manager consented to change the indicator but to-date it is complained it is not changed. The Sub-Divisional Officer was approached by the subscriber over a dozen times. Every time the subscriber was orally assured but promises were never redeemed. Finally on March 17, 1988 a legal notice was served on the Department and the instant writ petition is filed on April 4, 1988.
3. The prayers in the writ petition are far too many. The subscriber seeks to declare R. 443 as ultra vires of the Act. The Telephone Department is sought to be directed to change the indicator. One direction sought for is before telephone is disconnected at least 15 days time be added for payment of bills. The Department be directed not to charge rent during the period when telephone remained out of order. That 50% of the rental paid by the subscriber be refunded as complaints made by the subscriber were not properly attended to in time. That the present Sub-Divisional Officer, Telephone Department, Gauhati may be made responsible for the negligent acts of the Department which culminated in the non-performance of the apparatus. The Sub-Divisional Officer be ordered to refund the excess amounts paid by the subscriber.
4. In resisting the writ petition Shri D. P. Singh, Divisional Engineer, Phones (Maintenance), Panbazar admits on February 5, March 11, 14, 15 and April 30, 1985 complaints made by the subscriber were. received by the Junior Supervisor. That officer contacted S.D.O., D.E., CO., and D.M.T. The complaints thus are shown to have been attended to by the Department. It is averred bills showing amounts of Rs. 664/-, Rs. 764/-and Rs. 1,540/- were not paid by the subscriber. The Divisional Engineer stated no complaint of excess billing was received by them therefore the claims made by the subscriber on that score are false and not correct. It is stated as per P. & T. Manual, Vol. XIV bills were despatched and the subscriber was given reasonable opportunity to make payments even after due date for payment was over. The contention that the telephone was out of order since installation is stoutly denied. This is the range of controversies.
5. The complaints enumerated by the instant subscriber if not all most of them are experienced on many a day by the 2,423,762 subscribers (as per 1979 census) in India. For the many complaints that are made in the instant writ petition Courts cannot order relief to the subscriber : in that sense 'ubi jus ibi remedium' has its limitation in this regard. Telephones have come into our lives in India very recently. The rights relating to the apparatus and performance have not been crystalli
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