Judgment:
Manmohan Sarin, J.
1. Petitioner Mr. Sharad Vats by this writ petition seeks quashing of impugned notice dated21.5.1998, Annexure P.1 to the writ petition. Petitioner further seeks a direction restraining the respondents from disconnecting his telephone bearing No. 5543391 installed at Flat WZ-338, Lajwanti Garden, New Delhi. By the impugned notice petitioner was called upon to clear the outstanding dues amounting to Rs. 150254/- (one lac fifty thousand two hundred and fifty four only) in respect of telephone No. 5599211 in the name of petitioner's father Ltd. Col. S.M. Sharma.
2. The facts in so far as they are relevant for the disposal of the writ petition may be briefly noted:-
Petitioner's father Lt. Col. S.M. Sharma was the subscriber to telephone No. 5599211, installed at the same flat that is WZ-338, Lajwanti Garden, New Delhi. Ltd. Col. S.M. Sharma had complained about defects in the STD locking system in February, 1992, September 1992, November 1992 and on 4.4.1993. It is the case of the petitioner and his father Lt. Col. S.M. Sharma, that the letter left for USA on 30.4.1994, and remained there with his daughter that is petitioner's sister till 6.7.1994. It is contended that neither Lt. Col. S.M. Sharma nor any member of the petitioner or his family resided in the flat during the above period. The petitioner's father, however, received the following bills for the billing cycle mentioned belowin respect of telephone No. 5599211: Billing Cycle Amount16.11.1994 Rs.25109/-16.6.1994 Rs.71357/-16.8.1994 Rs.46894/-16.10.1994 Rs. 6019/-16.12.1194 Rs. 299/-16.8.1995 Rs. 476/-__________Total 150254/-__________
3. Aggrieved by the aforesaid billing, the petitioner's father Lt. Col. S.M. Sharma filed a complaint before the Consumer Disputes Redressal Forum. It was claimed that the flat was locked and petitioner was in USA. Lt. Col. S.M.Sharma sought a direction to the MTNL, not to disconnect the telephone and to charge him on the basis of the average calls made during the last 2 years prior to April 1994. Respondent MTNL filed its written statement and claimed that after investigation by the vigilance Department, it was found that there was no misuse or diversion of the lines and calls had been made from the petitioner's telephone by using the STD/ISD. It was also brought out that calls had been made utilising the AT & T service available at number 000117, wherein the billing to the subscriber was only Rs. 1/- and the call charges were paid by the person called in USA. Respondents also furnished the details/statement of the calls made. The District Consumer Forum in its detailed judgment dated 9.12.1997 dismissed the complaint. It reached the conclusion that it could not be said that calls were not made by the complaint Lt. Col. S.M. Sharma or from somebody else from his house. It was also brought out that the telephone had the facility of STD dynamic locking and the subscriber could have availed of the same. Ltd. Col.S.M. Sharma has preferred an appeal before the State Commission, in which notice had been issued and the appeal is pending consideration. Telephone No. 5599211 has since been disconnected for non-payment of the dues claimed. Petitioner Mr. Sharaf Vats, who was at the relevant time employed with the Indian Navy as a Lieutenant, assails the impugned notice dated 21.5.1998 Annexure-P.1, by which the respondents sought to disconnect his telephone No. 5543391, on account of the alleged dues of his father Lt. Col. S.M. Sharma in respect of telephone No. 5599211.
4. Mr. Vinod Kumar, counsel for the petitioner, urged that during the relevant period, for which dues are being claimed in respect of 5599211, the petitioner was posted at Kochi, Kerla and was not even in Delhi. It is claimed that neither the petitioner nor any member of his family were present in the flat and the same was lying locked. As such no liability, could be fastened on the petitioner for dues in respect of telephone No. 5599211. It is stated that petitioner reported and joined duty in Delhi only on 18.7.1995 and as such the petitioner could not have had any commonality of user with his father in respect of usage of telephone No. 5599211. Petitioner has filed along with the rejoinder, the photo copies of the transfer orders, joining report as well as goods receipt issued by the transporters in respect of transportation of luggage of the petitioner and petitioner's car. It is stated upon being transferred to Delhi petitioner had taken the flat on rent from his father in July 1995. Petitioner thereafter applied for the telephone connection which was sanctioned.
5. It would be also pertinent to notice at this stage that while the petitioner claims that neither he nor his family members had any access to telephone No. 5599211, the petitioner has also averred in the petition as under:
'In any case, petitioner submits that neither he nor his father nor any member of their family ever used the telephone in such manner, which could entitle the raising of such huge bills by the respondent.'
This would tend to dilute the plea of non-access. Learned counsel also reiterated that the demand raised by the respondent/MTNL against the petitioner's father Lt.Col. S.M. Sharma was unsustainable since the petitioner's father and his mother were both in USA, during the period when the major part of the calls are stated to have been made. Learned counsel for the petitioner relied on a decision in Rajiv Gosain v. Mahanagar Telephone Nigam Ltd. reported at 2000 VI AD (DELHI) 411. Learned counsel for the petitioner also relied on a Division Bench decision of this court in Smt. Krishan Kumar v. Delhi Mahanagar Telephone Nigam Ltd. Reported at 1989 Rajdhani Law Reporter 393 (DB), wherein it was held that for purposes of Rule 443 of Indian Telegraph Rules, the term subscriber will not include relations, who have independent connections and whose telephone the defaulter may be using. Learned counsel for the respondent on the other hand relied on another decision of the Division Bench in CW No. 33/89, wherein the court deprecated the obtaining of new connections in the name of a relation after subscriber's existing telephone had been disconnected for non-payment of dues and held the same to be a fraudulent acquisition. The court held that in such cases Rule 443 of the Indian Telegraph rules could be invoked. This Bench considered the various decisions and in CW No. 33/89 upheld the invocation of Rule 443, wherein telephone connections were installed in the same premises and there was close nexus and proximity between the subscribers and there was commonality of user.
6. I have heard the counsel for the parties and perused the pleadings and documents on record. The position, which emerges is that petitioner's father Lt. Col.S.M. Sharma claims that the outstanding payment in respect of telephone No. 5566211 was a result of misuse and diversion of its telephone lines. This is primarily on the ground that he and his wife were in USA and the flat was allegedly locked. Lt. Col. S.M. Sharma however failed in his complaint before the Consumer District Redressal Forum, wherein the Forum had considered the pattern of the calls made and the statement of the international numbers called as also simultaneously availing of the calls through the AT & T wherein the subscriber of the number called pays the charges. The Forum reached the conclusion that the calls had been made from the said telephone and some of them were Astra calls to Australia. These are disputed questions of fact, which cannot be determined in the exercise of writ jurisdiction.
7. The question, with which we are concerned is the claim of the petitioner that neither he nor members of his family were present when the alleged calls in respect of telephone No. 5599211 were made. It is claimed that there was no commonality of user during the period to which the outstanding amount relates. However, the parties reside together in the same premises and there is admitted commonality of user at present and after the petitioner claims to have moved in July, 1995. The petitioner happens to be the only son of Lt. Col. S.M. Sharma even if the petitioner was posted at Kochi at the relevant time, it cannot be said with certainty that no member of the petitioner's family or that of his parents resided in the flat or did not have access to the telephone No. 5599211. Case of the respondents is that the calls have been actually made from the said numbers as discussed in detail in the order of the Consumer District Forum. Petitioner as the only son of Lt. Col. S.M. Sharma has moved in the same flat and obtained another telephone connection. There is commonality of residence and the defaulting subscriber Lt.Col. S.M.Sharma also has the benefit of petitioner's telephone. As noted above, it cannot be said that no member of the petitioner's family had access to the defaulting telephone, even when petitioner was posted at Kochi, the commonality of user cannot be totally excluded.
8. In this view of the matter, it was put to the petitioner that the appropriate course of action would be adjudication of the disputes through arbitration as provided for in Section 7B of the Indian Telegraph Act. While the respondents were amenable to the same, petitioner was not. Counsel for the petitioner submitted that petitioner was not inclined to accept any liability for the dues of the telephone connection in the name of his father, especially as the petitioner's father had preferred an appeal before the State Commission in which notice had been issued. Counsel for the respondents, after judgment had been reserved, moved an application bearing No. 11767/2002 to bring on record that the appeal before the State Commission had been preferred by Col. Sharma through the petitioner as Attorney. Besides, it had been preferred through Mr. Vinod Kumar, the present counsel. It was further stated that the appeal before the State Commission was dismissed on 12.8.1999 for non-prosecution. Learned counsel for the respondents Mr. Agnani submitted that even from this, it was clear that petitioner was really fighting the case for his father Lt. Col. S.M. Sharma and, thereforee continued to be commonality nexus between the two. It is unfortunate that neither the petitioner who was the attorney for Lt. Col. S.M. Sharma nor his counsel brought to the attention of the Court earlier that the appeal before the State Commission had been dismissed for non-prosecution. Be it may, in view of the unwillingness of the petitioner and his father to accept arbitration, certain directions are called for while disposing of the writ petition.
In the instant case, when notice to show cause was issued in the writ petition and interim stay was granted restraining the respondents from disconnecting the telephone connection of the petitioner, namely, 5543391 upon the petitioner depositing Rs. 50,000/- within 2 weeks. Petitioner sought extension of time. Sum of Rs. 50,000/- is said to have been deposited on 15.7.1998 in the Registry of this Court.
In view of the discussion in para 6 to 8 and the factors enumerated therein, a fair and equitable order meeting the ends of justice in the instant case would be to confirm the interim order against disconnection of the petitioner's telephone No. 5543391 on terms. Telephone connection of the petitioner be not disconnected upon the petitioner continuing to pay the current charges. The amount of Rs. 50,000/- deposited by the petitioner in Court be released to the respondent/MTNL. Respondent/MTNL shall be free to avail of its remedies for recovering the outstanding amount from the petitioner's father Lt. Col. S.M. Sharma in respect of telephone No. 5599211 by invoking arbitration or otherwise as admissible at law. In case petitioner's father is ultimately found not liable to pay any amount, then the amount of Rs. 50,000/- shall be refunded to the petitioner together with interest at the rate of 9% from the date of receipt by respondent/MTNL. In case, it is held that amount as claimed is payable or a lesser amount is payable in respect of telephone No. 5599211 MTNL shall be entitled to adjust the aforesaid amount of Rs. 50,000/- paid by the petitioner against the dues and recover the balance amount from the subscriber.
Writ petition stands disposed of in the above terms.