Judgment:
1. The sole issue for consideration before us is whether the stated excessive demand reflected in the various bills issued from January, 1993 to January, 1996 on the part of the respondent, namely, Mahanagar Telephone Nigam Limited (hereinafter referred to as 'MTNL') arose on account of the non-installation of dynamic locking facility on the telephone No. 3326352. For the aforesaid deficiency in service on the part of the respondent, the complainant had filed a complaint under Sections 36B(a) and 10(a)(i) of the Monopolies and Restrictive Trade Practices Act, 1969 (in short the Act). It has been prayed therein that the respondent authority be restrained from adopting and indulging in such unfair/restrictive trade practices.
2. The facts in brief, as listed in the complaint, are that the complainant, who is carrying on business in the name and style of Mehrasons Jewellers is a subscriber to five telephone connections 3326352, 3320992, 3323950, 3324944 and 3325087 installed at the business premises of the complainant. Somewhere, in the month of August/ September, 1993, the complainant found that telephone No.3326352 was not functioning properly. Suspecting misuse of the aforesaid telephone, the complainant approached the respondent authority on 7th September, 1993 for provision of dynamic locking facility in the aforesaid telephone connection. This was to prevent misuse of STD facility available on the telephone. Despite several requests made the 'telephone locking device' was not installed within a period of four working days as promised. Failure to take action on the part of the respondent resulted in misuse of the telephone and consequently followed heavy demand as evident from the various bills received from November, 1993 to May, 1995. The receipt of demand of Rs. 9,947/- for the Billing Cycle 1995 despite disconnection of the telephone is stated to prove the stand. For misuse of the telephone by unscrupulous persons in active connivance and cooperation of the officials of the respondent, the complainant has invoked the provisions of the Act. The practice of disconnecting the telephone lines and insistence on clearance of demand prior to settlement of the bills is stated to be an unfair trade practice for which an action is required to be initiated against the respondent, contended the complainant.
3. On the facts as stated in the complaint, Notice of Enquiry was issued to the respondent.
4. In its reply, the respondent authority denying all the charges levelled against it stated that the disconnection of the telephone on two occasions i.e. on 3.2.1993 and 8.3.1995 was on account of non-payment of arrears. The same was, however, restored when the matter was taken up with the respondent authority. The dynamic locking facility, on the other hand, had already been provided to the subscriber on 6.12.1990 vide OB No. 22332337 dated 27.11.1990. That is why the OB No. 223329455 issued at the request of the complainant could not be executed. The aforesaid telephone was attached to the FAX machine of the complainant and on checking the same the fortnightly call pattern did not show any abnormality. This was duly communicated to the complainant. Since the print-out facility was not available en '332 not be provided to the complainant. In view of Rule 443 of the Indian Telegraph Rules 1951, the respondent authority is entitled to disconnect the telephone in case the arrears are not cleared within the stipulated time. The said rule has been upheld by various High Courts including Gujarat High Court in case of Bhagwati Dev Raj v. Union of India, reported as 16 (GLR) 1995. The unfair trade practices having been not established, Notice of Enquiry needs to be discharged.
5. The complainant also applied for temporary injunction against the disconnection of the telephone lines installed at the premises of the complainant. The Commission in its order dated 27th March, 1996 directed the respondent authority to restore at least two telephone numbers i.e. 3324944 and 3323950. In compliance thereto the respondent authority restored all the five disconnected telephones, as per order of the Commission dated 25.4.1996.
(i) Whether the respondent has been indulging in unfair trade practices as alleged in the Notice of Enquiry (ii) Whether the alleged unfair trade practices are prejudicial to the interest of consumer/consumers generally 6. Both the parties have filed their evidence in the form of affidavits. The witnesses Shri Chander Bhan, Accounts Officer and Shri D.D. Bansiwal, SDE of the respondent confirmed the stand of the respondent.
7. Section 7B of the Indian Telegraph Act, 1885, read with Rule 443 of the Telephone Rules in reproduced as. under : (1) Except as otherwise expressely provided in this Act if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or appraratus is, or has been, provided, the dispute shall be determined by Arbitration and shall, for the purposes of such determination, be referred to an Arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.
(2) The award of the Arbitrator appointed under Sub-section (1) shall be conclusive between the parties to the disputes and shall not be questioned in any Court."] 8. The aforesaid section of the Indian Telegraph Act, 1885 provides for an alternative Forum for determination of the disputes relating to telephone lines, appliances or apparatus between the subscriber and the Telegraph Authority whereby the matter is to be referred to the Arbitrator.
"Default of payment--If, on or before the due date, the rent or other charges in respect of the telephone service provided are not paid by the subscriber in accordance with these rules, or bills for charges in respect of calls (local and trunk) or phonograms or other dues from the subscriber are not duly paid by him, any telephone or telephones rented by him may be disconnected without notice. The telephone or telephones may, if the Telegraph Authority thinks fit, be restored, if the defaulting subscriber pays the outstanding dues and the reconnection fee together with the rental for such portion of the intervening period (during which the telephone remains disconnected) as may be prescribed by the Telegraph Authority from time-to-time. The subscriber shall pay all the above charges within such period as may be prescribed by the Telegraphs Authority from time-to-time." Rule 443 of Telephone Rules on the other hand entitles the Telephone Authority to disconnect the telephone of the subscriber on account of non-payment of the bills or charges in respect of calls.
9. The aforesaid section and the rule came for interpretation before the Delhi High Court in the case of H.C. Raghnbir v. Union of India and Ors. reported in 48 (1992) Delhi Law Times (DB) 319 wherein Their Lordships after considering the decision in case of Santokh Singh v.Divisional Engineer, Telephones, Shillong and Ors. reported in AIR 1990 Gauhati 17 held as under : "Section 7B is very clear and unambiguous. The words "any dispute concerning any telegraph line" have to be liberally construed. A telegraph line is the line which is given to the subscriber.... the dispute may be with regard to the telephone bill or repair of any telephone line or even with regard to the disconnection thereof. The important word, to our mind, is "concerning". The dispute must concern the telegraph line ..... Therefore, even if a restrictive interpretation is to be given to Section 7B, though in our opinion there is no warrant for doing so, nevertheless when on account of non-payment of bill action is proposed to be taken to disconnect the telephone then any dispute arising in respect thereto would be covered by Section 7B." 10. It has also been held that the remedy provided under Section 7B is efficacious. In this connection they have observed that : "When a subscriber received a bill which, according to him, is inflated and is not justified then apart from making a representation to the respondent, it is open to the subscriber to seek recourse to the arbitration under Section 7B of the Act. He can do so either by making a request to the respondent to appoint an Arbitrator or by filing an application under Section 20 of the Arbitration Act. In either of the two cases, if stay of disconnection is desired, the subscriber would have a remedy by invoking the provisions of Order 39 Rules 1 and 2, CPC read with Section 41 of the Arbitration Act." Making a clear distinction between the Rule 443 vis-a-vis Rules 421 and 439 of the Telephone Rules, it has been observed that : "The said Rule 443 cannot be given a restricted meaning. It not only refers to telephone charges not being paid in accordance with the rules but is also contemplates a case where there is nonpayment of "bills for charges in respect of calls (local and trunk).....". We find it difficult to agree with the contention of the learned Counsel for the petitioner that this rule deals only with normal bills. It may be that the first part of Rule 443 may be dealing with a case of monthly or bimonthly bills which are sent by the respondents at regular intervals but even in cases where there has been an undercharge, bills have to be sent and Rule 443 would take within its ambit such bills." The above discussion clearly shows that the remedy for disconnection of the telephone is available under the provisions of Section 7B of the Indian Telegraph Act.
11. Even otherwise on merit, we find that the basic grievance of the complainant is against the non-provision of dynamic locking facility on the aforesaid telephone resulting in misuse of the telephone. The stand of the respondent that the dynamic locking facility had been provided on the telephone as early as on 6.12.1990 has not been successfully controverted on the part of the complainant. In the result, the issue of another OB No. 223329455 vide its letter dated 15.9.1993 does not advance its case. On the other hand the complainant has not denied the fact of being the owner of the commercial organisation and the telephone being attached to FAX. It has also not been denied by the complainant that he has been making STD calls and which, on checking by the respondent authority, were found to be in order. In case the complainant was serious enough, he could have controlled the misuse of the STD facility by putting a lock on the telephone in case the dynamic locking facility did not exist, as alleged by it. This apart, we find that the number of calls have varied from month to month which reflected the proper working of the telephone and the bills were raised on the basis of the calls as found recorded. In this context, relevant to mention is that since 1996 the complainant had been able to get a stay of the arrears of demand, non-payment of which could invite disconnection of the telephone. Important to remember also is that the complainant had other telephones available with it and the non-operation of the aforesaid telephone could not have hampered its business as is its case. There is no direct or circumstantial evidence to show that the alleged excessive calls were not made by the complainant or its staff but by the third parties stated to be connected with the respondent authority. In the absence of any evidence placed before us, we are of the considered view that the complainant has not been able to establish that the excessive demand raised against it is due to the non-provision of the dynamic locking facility which is stated to be there right from 6.12.1990.
In view of the above, the unfair trade practice having been not established on the part of the respondent, Notice of Enquiry stands discharged. There will be no order as to the costs.