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1977 Supreme(Ker) 265
Kerala High Court
V.P.GOPALAN NAMBIYAR,K.K.NARENDRAN
K.C.M.Mather - Appellant
Versus
Vijaya Movies - Respondent
Decided On : 11/28/1977
V.K.K. Menon, P. Mohamed and P.S. Mohamed Nasir, for Appellant in W. A. No. 82 of 1976 and for Respondent No. 2 in W. A. No. 279 of 1976. P. F. Thomas, for Respondent No. 1 in both the W. Appeals. Central Govt. Pleader, for Respondents Nos. 2 to 5 in W. A. No. 82 of 1976 and for Appellants in W. A. No. 276 of 1976.
The central legal point established in the judgment is the discretion of the Government in dealing with applications for telephone transfer and the absence of an unqualified right for any subscriber or transferee to have their application for a telephone or transfer invariably allowed and granted.
Headnote:
Telephone Connection - Indian Telegraph Act, 1885 - Sections 4, 7 - Rule 429 of the Rules for Telephones - The court discussed the nature of the Government's privilege in allowing the use of telegraphs including telephones and emphasized the discretion to be exercised by the Government in dealing with applications for telephone transfer. The court held that there is no unqualified right for any subscriber or transferee to have their application for a telephone or transfer invariably allowed and granted. The judgment emphasized the exclusive privilege of the Central Government to establish, maintain, and work telegraphs, subject to rules and restrictions laid down by the Government.
Fact of the Case:
The writ petition was filed seeking a writ of mandamus to direct the departmental respondents to give a telephone connection to the writ petitioner based on an application for transfer. The court found that the learned Judge was wrong in issuing a writ of mandamus directing the installation of the telephone in the petitioner's premises.
Finding of the Court:
The court found that the learned Judge was wrong in issuing a writ of mandamus directing the installation of the telephone in the petitioner's premises. The court allowed the Department's appeal and set aside the judgment under appeal and the direction for mandamus issued by the learned Judge. The writ-petition was dismissed, but the Department was directed to consider the matter and deal with the application for transfer of the telephone in such manner as it deems fit according to the facts and the circumstances of the case disclosed.
Issues: The main issue was the issuance of a writ of mandamus directing the installation of the telephone in the petitioner's premises. Another issue was the appellant's right to get the telephone transferred in his name.
Ratio Decidendi: The court emphasized the discretion to be exercised by the Government in dealing with applications for telephone transfer and held that there is no unqualified right for any subscriber or transferee to have their application for a telephone or transfer invariably allowed and granted.
Final Decision: The Department's appeal was allowed, and the judgment under appeal and the direction for mandamus issued by the learned Judge were set aside. The writ-petition was dismissed, but the Department was directed to consider the matter and deal with the application for transfer of the telephone in such manner as it deems fit according to the facts and the circumstances of the case disclosed.
GOPALAN NAMBIYAR, C.J. :- These are two appeals arising out of the same judgment of a learned Judge of this Court in O. P. No. 3900 of 1975. W. A. No. 82 of 1976 is by the supplemental 5th respondent in the Original Petition, and W. A. No. 279 of 1976 is by respondents 1 to 4, namely, the Divisional Engineer, Telephones, the Commercial Officer, Telephones, the Director of. Posts and Telegraphs, and the District Manager, Telephones, Ernakulam. The writ petition was filed seeking a writ of mandamus to direct the departmental respondents to give a telephone connection to the writ petitioner. The same was prayed for on the strength of an application for transfer (copy Ext. P-1) dated 30-6-1975 made by one T. J. Joseph stated to be the Managing Partner of M/s. Mas Auto Spares. The relationship between the subscriber and the transferee was stated in the relevant column of the application as "friendship". The address at which the telephone was working was shown as Mas Auto Spares, M. G. Road, Ernakulam. By Ext. P-2 dated 30-6-1975 Shri T. J. Joseph gave the required undertaking not to claim the telephone or to ask for the refund of any amount due from the Telephone Department in future. Exts. P-3, P-4 and P-5 are the documents which show that his application for transfer was being accepted and acted upon by the Department. The learned Judge on these facts proceeded, in para 4 of the judgment under appeal, on the basis that Shri T. J. Joseph was the subscriber of the telephone in question. After the required amount of Rs. 500/- by way of transfer fee was paid (Vide Exts. P-4 and P-5) the petitioner firm by Ext. P-6 letter requested the 2nd respondent to take immediate steps in the matter of transfer of the telephone. This was on 4-8-1975. The 5th respondent had addressed Ext. R-3 letter to the 4th respondent, dated 30-7-1975. The said letter complained that the telephone in question was being used by M/s. Mas Auto Spares, and was in custody of the aforesaid firm in its premises, and that Shri T. J. Joseph was not the subscriber of any telephone in his personal capacity. It has been proved and brought out by the records filed in this case that Shri T. J. Joseph had retired from the firm of M/s. Mas Auto Spares in 1967 - vide Ext. R-4. The learned Judge after noticing Rule 429 of the Rules for Telephones contained in Part V of the General Statutory Rules and Orders Vol. XVI, according to which, a transfer of telephones shall not be made without the permission of the Telegraph Authority, stated that the Telegraph Authority had permitted by Exts. P-1 to P-5, the assignment or transfer of the telephone, and that for faults, if any, of the former subscriber, the transferee-firm, viz., the writ-petitioner, should not be made to suffer. The learned Judge stated that he was not called upon to decide as to whether there was any unauthorised use after 13-7-1967 when the former subscriber Shri T. J. Joseph retired from M/s. Mas Auto Spares. He was firmly of the view that once the transfer was permitted, and on that basis the transferee had invested amounts, respondents 1 to 4 cannot revoke the transfer, and that the petitioner-firm was entitled to have the telephone in question shifted to their premises. The learned Judge accordingly allowed the original petition and granted a writ of mandamus to the petitioner for the installation of the telephone in their premises.
2. While the learned Judge had correctly noticed the facts and the course of events relating to the telephone, we think the learned Judge was wrong in issuing a writ of mandamus directing the installation of the telephone in the petitioner's premises. Sections 4 and 7 of the Indian Telegraph Act, 1885, make it clear that it is the exclusive privilege of the Central Government to establish, maintain and work telegraphs (which expression, by the definition in S. 3 of the Act, would include a telephone also), and that the grant of this exclusive privilege is subject only to such
