K.SAMPATH J.
1. The opposite party in O.P.No.14/2002 on the file of the District Consumer Disputes Redressal Forum, Udhagamandalam, is the appellant herein. He has also taken out an application for reception of additional documents.
2. The case of the complainant was as follows: - He was subscriber of telephone No.517755. There were no dues payable by him. He received a letter from the department dt.04/04/2002 claiming a sum of Rs.2,56,108/- as alleged dues payable by his father for telephone Nos:-13068, 43731, 57203, 57236 and 59214. The complainant's telephone was disconnected on the basis of the said letter. There was also a dispute between his father and the telephone department pending before the Subordinate Judge, Nilgiris in O.S.No.77/2000 and it related to the Firm M/s.Arian Tea Enterprises and his father was not a partner therein. The department had earlier sent a letter dt.11/03/2002 to the complainant claiming Rs.58,909/- failing payment of which by 16/03/2002 his telephone would be disconnected. He had sent a reply to that letter but still his telephone was disconnected. He sent a lawyer's notice for reconnection immediately as there were no arrears in respect of his telephone. Thereafter he filed the complaint seeking reconnection of his telephone and also payment of Rs.5,000/- towards damages and a written apology from the department for the wrongful action.
3. The opposite party filed a version denying the various allegations and further stating as follows :- Even on the date the complainant was provided with a new telephone connection bearing No.517755 his father was a defaulter to the tune of Rs.2,56,108/-. By mistake, a new connection was provided to the complainant. Immediately on learning about the mistake, a letter was sent to the complainant and thereafter the telephone was disconnected. As per Rule 416 of the Indian Telegraph Rules, the department could refuse to give new telephone connections to near/close relatives or associates living or working from the same premises as that of the defaulting subscriber. The department was fully justified as the complainant's fathers dues were to an extent of more than Rs.2,00,000/- and the complainant's telephone was disconnected. The department was well within their power to deny a telephone connection. Telephone bills of associate numbers used by the father of the complainant had not been paid and he failed and neglected to clear the outstanding amount. There was no negligence on the part of the department and they had only followed the Indian Telegraph Rules. The complaint was liable to be dismissed.
4. Before the District Forum, on the side of the complainant Exs.A1 to A10 were marked while on the side of the opposite party Ex.B1 was marked.
5. The District Forum found that so far as the complainant was concerned there were no arrears in respect of his telephone connection and further there was a suit filed before the Sub-Court, Ooty against the complainant's father and the same was being contested. The telephone in respect of which there was suit filed was in some other place in the name of a company and in such circumstances, the disconnection of the complainant's telephone was not proper. The District Forum also held that there was no evidence to show that the father of the complainant was also using the telephone of the complainant. The District Forum relied on a judgment of the Madras High Court in 2002 1 MLJ 512. The District Forum held that Rule 443 could not be used for disconnecting other telephones. By order dt.21/02/2003 the District Forum directed the opposite party to reconnect the telephone and pay Rs.5,000/- towards damages to the complainant. It is as against that the present appeal has been filed.
6. In the appeal, an application has been taken out for reception of certain documents as additional evidence. The affidavit in support of the application for reception of additional documents states among other things as follows :- Due to oversight, the documents which were very relevant for the case of the opposite party were not produced and after a diligent search the documents were traced and those documents are :-
(1) Small Scale Industries Registration issued to M/s.Arian Tea Industries Pvt. Ltd., 12/152, Ketti Post, issued by the Department of Industries and Commerce, Tamil Nadu.
(2) Memorandum and Articles of Association of M/s.Arian Tea Industries Pvt. Ltd., and certificate of incorporation issued by the Registrar of Companies, Tamilnadu, in favour of Arian Tea Industries Pvt. Ltd.,
(3) The application form issued to Arian Tea Industries Pvt. Ltd., containing the address 12/152, Ketti P.O. Nilgiris and
(4) The application form issued to Venkatesh the complainant by the Department of Telecommunications containing the same address viz., 12/152, Pallada Road, Ketti P.O. Nilgiris
(5) The telephone advice note No.Z50596 issued to V.Venkatesh the complainant having address at 12/152, Ketti P.O., Nilgiris
(6) Letter issued by BSNL, Coonoor to Venkatesh regarding disconnection of his telephone on account of default committed by his father
(7) BSNL's letter addressed to Postmaster, Ketti for address verification and details relating to Door No.12/151 and 12/152, Ketti
(8) The letter of Sub Post Master, Ketti, Nilgiris, issued to Sub Divisional Engineer, BSNL intimating that on verification of the address both persons Vijayaraj and V.Venkatesh are residing at one and the same place.
(9) Sub Divisional Engineer, Legal letter dt.12/08/2006 addressed to SDE Vigilance, BSNL, Coonoor regarding verification of address of T.Vijayaraj, Ketti Post Nilgiris, and V.Venkatesh, son of Vijayaraj, Ketti P.O. Nilgiris.
(10) Sub Divisional Engineer, Vigilances reply dt.14/08/2006 addressed to SDE Legal, BSNL regarding report of address verification
(11) Application form for telephone connection in favour of T.Vijayaraj, Ketti PO Nilgiris.
7. It is further alleged in the affidavit that the above documents are of vital importance and they would clearly prove that both the father and the son are residing in the same compound and that the outstanding dues of the father amounting to roughly Rs.2,56,108/- is due and payable to the telephone department whereas a new telephone connection bearing No.517755 was issued in the name of the complainant by mistake which is contrary to the Office Order No.2-27/98-PHA issued by the Government of India, Ministry of Communication, Department of Telecommunication, New Delhi-1. The Department had rightly followed the office order and that there is no negligence on their part in denying the new telephone connection. It was wrongly given and as such the complaint is liable to be dismissed. As the above documents were all obtained subsequent to the passing of the order by the District Forum, they could not be produced before the District Forum during the enquiry in the complaint. Those documents are of vital importance to prove the case of the department and that they may be taken on the file in the interest of justice.
8. A counter has been filed seriously opposing the reception of additional documents. The appeal was presented in May 2003. The first hearing was on 06/08/2003. From 2003 till the date of the filing of the petition in June 2007 the opposite party did not choose to take any steps to substantiate its actions. Before the District Forum no documents were annexed. The opposite party seems to have woken up from slumber only now. The application is belated and should not be entertained. Even otherwise, there are seven door numbers in the same compound from 12/151 to 12/157. No.12/151 is occupied by Arian Tea Enterprises and Door No.12/152 is in the occupation of the complainant. Even on the date of the provision of the new connection to the complainant, there was a dispute between the department and Mr.Vijayarajan, father of the complainant in O.S.No.77/2000 before the Sub-Court, Ootacamund. The Department had in spite of that provided the connection. It cannot justify the disconnection claiming that for the disputed arrears of an associate number the disconnection was effected. When there were no arrears in respect of the complainant's telephone, there was no justification for disconnecting on the alleged ground that there were arrears in respect of Mr.Vijayarajan's telephone. The opposite party is a public functionary and an instrument of the State having caused much nuisance, pain and damage, it ought not to compound it further by filing an affidavit after nearly half a decade and seek to throw in some documents alleging that they are vital. There is no explanation given for the delay. The reason given also does not appear convincing. It is incumbent on the Government authority to say as to how they obtained the documents. All is not well with the department and it is conducting itself with an intention to harass and intimidate its subscribers. The department has an audacity to direct that the matter be remanded for marking the documents. It cannot dictate terms to this Commission as regards the orders that it should pass. The application is belated, vexatious and is not bonafide and is liable to be dismissed.
9. It is now well settled that in respect of telephone connections if there are arrears of near or close relatives or associates living or working from the same premises as that of the defaulting subscriber, the telephone could be disconnected. This is pursuant to the notification issued by the Government dt.01/11/2000 based on Rule No416 of Indian Telegraph Rules. Indeed, the opposite party had taken the matter lightly and had omitted to produce documents before the District Forum. For their omission, they can be penalised by direction to pay cost to the aggrieved party. If the documents are necessary for a proper disposal of the appeal before us and justice also requires that this Commission has ample powers to receive those documents. In our view, the documents have a lot of relevance to the case on hand. The complainant was given a new connection. According to the opposite party, it was done by mistake. There were arrears in respect of associate numbers within the same premises and which numbers were the complainant's father's numbers. It is to be further noted that the complainant and his father were living in the premises/carrying on business from the same premises. The crucial documents which are sought to be produced here indeed ought to have been produced before the District Forum. The mere fact that the opposite party had been casual about this before the District Forum cannot disentitle them to produce those documents before us if those documents have a clear bearing to the question to be decided in the present case. In our view, those documents have an enormous bearing and are eminently necessary to be received as additional documents in the appeal before us for a just adjudication of the dispute. Consequently, the Civil Miscellaneous Petition in C.M.P.No.529/2007 is allowed. Those documents shall be numbered as Exs.B2 to B12.
10. The learned counsel for the appellant submitted as follows: - The District Forum failed to note that the complainant was not eligible to the new phone connection in the first instance and due to the fact that while there was a bulk release of new telephone connection under the special scheme, the complainant was given the connection by oversight, even though he was not eligible in the first instance. The District Forum failed to note that as per the application form for the new telephone connection Ketty 57236 which was obtained by T.Vijayraj had not mentioned the door number and it was disconnected on 18/06/99. The application form for new telephone connection for Ketti 517755 which was obtained by the complainant in Door No.12/152 on 29/06/2001 was at one and the same premises. Furthermore, in the application form, the complainant had given nomination in his father's name residing at the same address as that of his own and it could be inferred that both the father and son were living in the same premises. The postmaster Ketty had also verified and found that T.Vijayaraj, the father and V.Venkatesan, the son were both residing in Door No.12/152 in the same premises. Further, the letter from the Vigilance Officer also intimated that both son and father were residing at one and the same door number namely 12/152. In addition to that, the Sub Divisional Engineer, Legal, visited and found that the residents V.Venkatesh the complainant and the Arian Tea Factory were within the one and same compound and the distance between the residence and the factory was about 30 meters and a cordless phone could work well within the compound. The District Forum ought to have followed the decision of the Delhi High Court in {AIR 2000 DELHI PAGE 431}, the Judgement of the Madras High Court in W.P. 12389/1999 in the case of Mrs.R.KAILASH BAI and the decision in the case of W.P.No.1714/2001 of Bombay High Court wherein it has been clearly stated that disconnection of phone was proper for the outstanding dues of the close relatives living in the same premises. The decisions relied on in A.P.No.600/2000 and A.P.Nos.785, 786 and 352/2003 are distinguishable on facts. In those cases, it was found that the associate telephone was working at different place and not in the one and the same place as that of the complainant. There was enough evidence that both father and son were living in the same compound and premises and as such in view of the notification issued by the Government, the action of the department was proper.
11. Per contra, the learned counsel for the complainant submitted as follows: - There were no arrears in respect of the new connection. The company Arian Tea Enterprises was a company situated elsewhere and the telephones were installed elsewhere. The telephone department had also filed a case before the Sub Court, Ooty against the complainant's father. Those telephones which were in other places and were in the name of a company, the disconnection of the telephone in the name of the complainant for non-payment for those telephones was illegal. There was no evidence to show that the father of the complainant was also using the complainant's telephone. Rule 443 of the Indian Telegraph rules, 1951 could not be interpreted to authorise the telegraphic department to disconnect the telephone other than the one subject matter of dispute. There was no commonality of usage of the telephones. The order of the District Forum had therefore to be upheld.
12. Let us now have a look at the documents which have been marked in the appeal. Ex.B2 is from the Department of Telecommunications, Office of the Officer Engineering (Telecom), Ooty to M/s.Arian Tea Industries Pvt.Ltd., It gives the address of Arian Tea Industry Pvt. Ltd., as 5/Kundah, Kundah Bridge (PO) and the bills have to be sent to 12/152, Ketti (PO) - 643215. Ex.B3 is the certificate issued by the Department of Industries and Commerce to M/s. Arian Tea Industries Pvt.Ltd., and the address given is 12/152, Ketti Post, The Nilgiris - 643 215. Ex.B4 the memorandum of Association at page 15, the names and addresses of the subscribers to the Memorandum of Association are given as follows:-
T.Vijayarajhan
S/o.Sri P.Thangaraja
12/152,Ketty P.O.,
The Nilgiris. Pin 643 215
BUSINESS and
V.Venkates Raj
S/o..Sri T.Vijayarajhan
12/152, Ketti PO
The Nilgiris - 643 215
BUSINESS.
Ex.B5 is the application form for issuance of a new telephone connection to Arian Tea Industry Pvt. Limited. It gives the address of the industry as 5, Kundah, Kundah Bridge, post 64 and the address for sending telephone bills is given as 12/152, Ketti P.O., Nilgiris - 643 215. Ex.B6 is the application form for new telephone connection issued to the complainant. It gives the address as 12/152, Palada Road, Ketti P.O. and the nominee is given as T.Vijayaraj, father and the address of the nominee as 12/152, Ketti Post, Nilgiris. Ex.B7 is the telephone advice note issued to the complainant dt.05/02/2001. The address is 12/152, Ketti, Ketti Post, The Nilgiris. Ex.B8 is the telephone department's letter to the complainant dt.04/04/2002 stating that there were four telephones three of them in the name of Arian Tea Enterprises and one in the name of T.Vijayaraj that the said telephones were disconnected for non-payment of bills to the extent of Rs.2,56,108/- on different dates during 1997 and 1998 itself. When the complainant's father was defaulter of closed telephone connections for non-payment of outstanding bills, the New telephone connections for the complainant had been refused as per the provision of ITR 416 and enjoined by Government of India, DOT, notification dt.26/06/2000 that since the outstanding dues have not been settled for closed connection, the complainant's telephone KTI 517755 would be disconnected on 09/04/2002 unless the complainant settled all the outstanding dues in respect of the telephones. Ex.B10 is the letter from the Sub-Divisional Engineer, Coonoor to the Post Master, Ketti asking for details of the door numbers and Ex.B9 is the reply to that stating that the address had been verified and found correct that both persons Vijayaraj and Venkatesh were residing in Door Nos.12/152 in the same locality and that Arian Tea Factor, Ketty was in door No.12/151. Ex.B11 is the letter from the Sub-Divisional Engineer, Vigilance dt.14/08/2006 to the Sub-Divisional Engineer (legal) stating that both father and son are residing at 12/152, Ketty, Ketty Post, The Nilgiris. Ex.B12 is the application form for telephone connection issued to Vijayaraj father of the complainant dt.13/11/1986 without giving the full address but giving the address as Ketty Post, The Nilgiris.
13. From the above documents, it would be amply clear that there was hoodwinking of the department by the complainant and his father when it came to telephone connections. In view of that the conclusion of the District Forum cannot at all be sustained. The provisions and the rules are very clear on this aspect. The department was well within their right in disconnecting the telephone of the son. It was justified in its stand that by mistake they had given a new connection to the complainant though even at that time there were arrears in respect of telephones of the complainant's father in the same premises and also of the company of which the complainant and his father who are the only two shareholders.
14. Consequently, the appeal shall stand allowed; the order of the District Forum shall stand set aside and the complaint shall stand dismissed. There will be no order as to costs in the appeal. However there will be a direction to the opposite party to pay Rs.2500/- to this State Commission in the Civil Miscellaneous Petition within four weeks from today for the indifference of the department in not producing the documents before the District Forum.