JUDGMENT 1. JANUARY 1, 1987In this group of writ petitions the grievance of the petitioners is that their telephone line went out of order but in spite of repeated complaints the telephone authorities have not rectified the line, but have been sending bills for it JANUARY 1, 1987 2. JANUARY 1, 1987 In C JANUARY 1, 1987O JANUARY 1, 1987 12259(w) of 1983, Sk JANUARY 1, 1987 Abdul Rahim, it has been stated that since JANUARY, 1983, the telephone became out of order intermittently and since March 1983 the telephone remained completely dead and inoperative JANUARY 1, 1987 The petitioner made repeated complaints to the respondent on various dates stated below : January 1, 1987 In spite of these complaints, no steps were taken by the respondent to restore the telephone connection but bills are being regularly sent towards rental of the telephone, for the period after the telephone became dead January 1, 1987 The petitioner paid all the bills under protest January 1, 1987 Ultimately he on 10th August, 1983 gave a legal notice to the respondents demanding restoration of the line within 48 hours failing which he will be compelled to move this Hon'ble Court January 1, 1987 But this also evoked no response January 1, 1987 At the admission stage this Court passed an order on 4-10-83 directing the respondents to restore the petitioner's telephone connection January 1, 1987 The telephone connection was restored immediately January 1, 1987 The respondents have not filed any affidavit-in-opposition in this case January 1, 1987 3. IN C January 1, 1987O January 1, 1987 15030 (W) of 1983, Chiranji Lal Murarka, the uncontroverted allegation is that the petitioner's telephone went out of order on 20th April, 1983 January 1, 1987 He made numerous complaints particularly on 9th January 1, 1987 June, 1983, 18th June, 1983, 18th August, 1983 and 30th August, 1983 but the telephone was not restored January 1, 1987 On the other hand, the petitioner was served with bill for rental of Rs January 1, 1987 200/- each in October and December, 1983 January 1, 1987 These bills were not paid by the petitioner January 1, 1987 The petitioner gave legal notice on 12th December, 1983 requesting restoration of the telephone within 7 days January 1, 1987 This also had no effect January 1, 1987 On 23rd December, 1983, this court passed an order directing the respondents/telephone authorities to restore the telephone line by 31st December, 1983 January 1, 1987 The Divisional Engineer was directed to submit his report January 1, 1987 He submitted a report stating that the telephone line has been restored January 1, 1987 4. IN C January 1, 1987O January 1, 1987 3629(W) of 1984, Deb Guru Ghosh, the uncontroverted allegation is that the petitioner's telephone became dead and is out of order since 27th July, 1983 January 1, 1987 He lodged complaints with the respondents and thereafter personally met the respondent authorities on 4th August, 1983 and on subsequent dates January 1, 1987 He again lodged a written complaint on 8th September, 1983 and thereafter sent the reminder on 28th November, 1983 but all these evoked no response January 1, 1987 The telephone line remained out of order January 1, 1987 The respondents, however, continued to send bills for the period subsequent to July 1983 January 1, 1987 Since the telephone is out of order, he did not pay the said bills The petitioner's case is that the respondents are not entitled to charge rental for the period during which the telephone remained out of order, for no fault of the subscriber He also alleged that the respondents have no system for maintaining the records correctly January 1, 1987 IN this case also, this Court on 30th January, 1984 directed the respondents to restore the telephone connection January 1, 1987 It was immediately restored January 1, 1987 In C January 1, 1987O January 1, 1987 4019(w) of 1984, Gangadhar Bajaj the uncontroverted allegation is that the petitioner's telephone went out of order since 29th June, 1983 January 1, 1987 In spite of complaints reminder, requests and representations, the telephone line has not been restored January 1, 1987 On the other hand, the telephone authorities continued to send bills for rental regularly January 1, 1987 The petitioner paid the bills in the hope that the telephone will be restored but the same remained out of order January 1, 1987 The petitioner claimed that he is entitled to get refund of the money paid by him January 1, 1987 The respondents had been negligent in discharging their duty to restore the telephone connection January 1, 1987 The further allegation is that the other telephones installed in different flats of the same building are still in working order January 1, 1987 In this case it has been alleged in paragraph 9 that the respondent No January 1, 1987 3 (The Divisional Engineer, "34" Exchange, Calcutta Telephones) ultimately told the petitioner to obtain order from the Court without which nothing would be done January 1, 1987 In this case, the Court passed an order on March 16, 1984 directing the telephone authorities to restore the telephone line of the petitioner January 1, 1987 The telephone line was thereupon restored January 1, 1987 5. SIMILAR allegations have been made in the various other writ petitions in this group January 1, 1987 It is unnecessary to multiply the instance January 1, 1987 6. SIMILAR allegations have been made in the various other writ petitions in this group January 1, 1987 It is unnecessary to multiply the instance January 1, 1987 6. IT appears that when the telephone line goes out of order, complaints are made repeatedly but they are not attended to, with any degree of seriousness or promptness January 1, 1987 The telephone line may remain out of order for months and months January 1, 1987 When the subscriber approaches the Court and the Court passes an interim order, the telephone line is, as if by magic, restored quickly January 1, 1987 This has happened in each of the cases in this group January 1, 1987 In C January 1, 1987O January 1, 1987 8937(w) of 1983, Naresh Chandra Roy v January 1, 1987 Union of India, the respondents have filed an affidavit-in- opposition January 1, 1987 They have also filed as Supplementary affidavit January 1, 1987 They have annexed a copy of an order dated October 31, 1985 issued by the Director of Phones of Tele communication Board, Government of India January 1, 1987 It states that the matter has been considered by the Tele communication Board and it has been decided that rebate in rental would be admissible when the telephone or other service of a subscriber remains interrupted continuously for 30 days or more January 1, 1987 The free calls allowed in the billing cycle for the telephone will be reduced proportionately for the period for which rebate is granted January 1, 1987 Paragraph 3 of this order is relevant and material January 1, 1987 It states : "In order to prevent any abuse of this concession or difficulties to the subscribers, General Manager/District Managers should ensure that fault cards and fault registers showing the nature of fault, the time of reporting and restoration of the fault, are properly maintained January 1, 1987 Attention is particularly invited to instructions contained in Directorate letters No January 1, 1987 7-6/82 PHM dated 16-9-1982 and 23-4-1983 on prompt clearance of faults and fixing of responsibility for delay in clearance January 1, 1987 These instructions, inter alia, enjoin that the Junior Engineer in charge of an outdoor Section should enter all faults pending for more than six hours in a register and take necessary action to rectify the faults in shortest possible time January 1, 1987 In case the fault persists for more than 24 hours, the concerned Assistant Engineer-in-Charge should be informed, apart from continuing his efforts for fault rectification January 1, 1987 The Assistant Engineer should keep a watch on all such cases and would be responsible to get the faults cleared with due promptitude January 1, 1987 If the fault is not cleared within 48 hours, the concerned Divisional Engineer should take necessary action for rectifying the fault January 1, 1987 All long pending faults beyond 3 days should be monitored by the General Manager/District Manager through weekly returns from Divisional Engineers January 1, 1987 Responsibility has to be fixed by the General Managers in all cases of negligence January 1, 1987 In case a fault has continued for 30 days or more, an officer of the rank of Director or above should decide on the basis of available information whether this has been due to negligence or genuine reasons beyond control January 1, 1987" 7. IN none of the writ petitions of this group, the respondents made any effort to indicate whether they have followed the instructions contained in the Directorate letters dated 16th September, 1982 and 23rd April, 1983 January 1, 1987 They have not indicated' as to what steps were taken by the Divisional Engineer, General Manager/District Manager January 1, 1987 There is no indication whether General Manager has fixed the responsibility in any case of negligence January 1, 1987 There is no allegation that the Director had in any case decided whether the fault had continued for 30 days or more due to negligence or for genuine reasons beyond their control January 1, 1987 There is strict silence on the part of the respondents on these aspects January 1, 1987 8. ON the other hand, in affidavit-in-opposition as well as in the supplementary affidavit filed in the case of Naresh Chandra Roy, the stand is that S January 1, 19877B of the Telegraph Act provides for arbitration for cases of disputes January 1, 1987 Hence, a writ petition is not maintainable January 1, 1987 The subscriber enters into an agreement with the telephone department January 1, 1987 He is bound to abide by the provisions of the Indian Telegraph Act and the Rules January 1, 1987 It has been stated in the affidavit-in-opposition that the road space in Calcutta is only 6% of its total area as comparable to 30% and above as in other major cities in India January 1, 1987 Due to acute shortage of road space all utility services are to lay cables, pipes and construct drains, manholes etc January 1, 1987 either in the same alignment or cross-crossing each other vying for space January 1, 1987 Digging of road for maintenance and developmental work causes damage to these cables and pipes January 1, 1987 It has been alleged that the equipment of most of the exchanges have outlived their lives and require replacement for efficient service January 1, 1987 The solution of the problem lies in replacement of the old equipment, laying of additional cables, utilisation of modern sophisticated equipment like digital exchanges, PCM cables, optical fibers, Microwave systems, ducting for cables etc January 1, 1987 These require huge investment of money January 1, 1987 It has been further alleged that the approximate cost per line for installation of the telephone is nearly Rs January 1, 1987 20,000/- January 1, 1987 The cost of maintenance is Rs January 1, 1987 3000/- per annum but only Rs January 1, 1987 1200/- is collected from the subscriber as fixed rental January 1, 1987 It has been further alleged that the telephone often goes out of order because of digging of the road by various Government departments January 1, 1987 The affidavit-in-opposition thus gives a long lecture on the above aspects of the problem, but it scrupulously avoids any statement as to whether they have complied with instructions in the Directorate letters dated 16th September, 1982 and 23rd April, 1983 with regard to the rectification of the faults and restoration of the line as quickly as possible January 1, 1987 9. THE burden of the respondents appears to be that they were helpless in rectifying the telephone line early because of reason beyond their control January 1, 1987 But it is significant that the telephone lines of the petitioners in this group were restored immediately after the Court had passed an interim order January 1, 1987 10. IN this situation it is difficult to believe that the respondents actually made any effort to carry out their duty as enjoined in the Directorate letters mentioned above January 1, 1987 One would have expected them to produce records and registers etc January 1, 1987 in which the complaints are entered and the necessary entries made in respect of the actions taken, to corroborate their case January 1, 1987 But nothing has been done January 1, 1987 The irresistible conclusion appears to be that the respondents slept over the complaints January 1, 1987 They did nothing to rectify the fault but continued to send the bills to the subscribers, they woke up only when this Court made an interim order January 1, 1987 Then the telephones were restored at once January 1, 1987 11. THE respondents' case is that under the Rules the subscriber is liable to pay the rental fee even though the telephone may be out of order January 1, 1987 There is no provision for refund of the rental In this situation ii is apparent that the claim of the petitioner for refund of the rental or the complaint that the respondents are not entitled to charge rental for the period when the telephone is out of order, cannot adequate alternative remedy by way of arbitration January 1, 1987 THE writ petition is maintainable January 1, 1987 12. LET us have a look at the Rules framed under the Indian Telegraph Act January 1, 1987 Rule 412 in Part 7 "Rules for telephone" is headed "supply and maintenance of equipment" January 1, 1987 It provides : "1 January 1, 1987 The Divisional Engineer, Telegraphs, shall install and subject to the observance of these rules by the subscriber, maintain in good working order the equipment and apparatus provided by the Department and when necessary, substitute a different apparatus with all reasonable dispatch January 1, 1987" Thus, the Divisional Engineer is liable to maintain the telephone connection in working order January 1, 1987 It appears that in pursuance of this Rule, the Directorate had issued instructions contained in the letters dated 16th September, 1982 and 23rd April, 1983 laying down the procedure for prompt clearance of faults and fixing the responsibility for delay in clearance January 1, 1987 Rule 434 provides for fees and other charges January 1, 1987 Section III deals with the scale of charges for departmental exchange connections January 1, 1987 13. A fixed rental of Rs January 1, 1987 200/- is charged for two months, during which period 200 calls are allowed free of charge January 1, 1987 14. A fixed rental of Rs January 1, 1987 200/- is charged for two months, during which period 200 calls are allowed free of charge January 1, 1987 14. UNDER Rule 436 the subscriber shall pay the charges for installation or shift or the rent for a telephone connection or similar service for such periods and at such times as may be prescribed by the Telegraph Authority January 1, 1987 Rule 443 deals with default of payment January 1, 1987 It says : "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 or any telex service rented by him may be disconnected without notice January 1, 1987" This rule deals with two situations January 1, 1987 It says that the rent in respect of the telephone service shall be paid on or before the due date January 1, 1987 In the next place, bills for charges in respect of calls or phonograms or other dues shall be duly paid January 1, 1987 The rent is to be paid for the telephone service provided January 1, 1987 Bills for calls etc January 1, 1987 actually made are to be paid when presented January 1, 1987 The noticeable point is that the rent is payable for "telephone service provided" January 1, 1987 If the telephone goes out of order, it cannot be said that the telephone service is provided January 1, 1987 Free calls is only a part of the telephone service January 1, 1987 Trunk calls, phonograms, receiving the calls, morning alarming calls, time service etc January 1, 1987 are also telephone services which are provided to a subscriber January 1, 1987 This rule contemplated that if the rent or the bills are not paid, the telephone may be disconnected without notice January 1, 1987 The power to disconnect arises when there is a default by the subscriber in paying legitimate dues : for instance, in not paying rent, even though the telephone service is being provided January 1, 1987 This rule does not authorise disconnection for non-payment of a bill for rental in a case where, for the period for which rental is being charged, the telephone service was not provided, inasmuch as the telephone was dead or out of order January 1, 1987 15. THE respondents invited my attention to Rule 474 which provides : "474 January 1, 1987 Maintenance of Circuits : While the Posts and Telegraphs Department shall make every endeavour to keep the circuits (including local leads) free from interruptions, the Department shall not be responsible for any loss, damage or inconvenience caused to the user as a result of interruptions nor shall any rebate be allowed in the charges for circuit failures January 1, 1987 Provided that where the user complains about the interruption in the circuit, the Posts and Telegraphs Department, may wherever practicable substitute a spare circuit January 1, 1987" This Rule 474 occurs in Part VIII of the Rules which is headed "Rented Telegraph and Telephone Circuits General Provisions" January 1, 1987 This has nothing to do with the local telephones which are dealt with in Part V January 1, 1987 Similarly, Rule 519A which occurs in Chapter IX relating to Telex is equally not material January 1, 1987 Rule 519A provides : "(1) No rebate or refund shall be admissible to a subscriber by reasons of breakdown; disrepair, interruption, disturbance, stoppage of communication or of any other cause whatsoever January 1, 1987 (2) THE Telegraph Authority shall on a written notice received from the subscriber that his Telex line is not in working order, repair and restore the communication with all reasonable dispatch and the subscriber shall render all reasonable assistance for the purpose January 1, 1987" This rule lays down reciprocal responsibilities : "THE Telegraph Authority with all reasonable shall repair and restore the communication" and then no rebate or refund shall be admissible January 1, 1987 16. THE respondents have pleaded that since the subscriber has entered into an agreement the relationship between the subscriber and the telephone authorities is contractual in nature January 1, 1987 Assuming this so, it is evident that in view of rule 412(2) the Telegraph authorities are bound to maintain the telephone connection in working condition January 1, 1987 If the telephone line goes out of order the officials are liable to rectify the telephone line with reasonable as laid down in the Directorate letters mentioned above January 1, 1987 If they failed to do so, they are clearly guilty of breach of contract January 1, 1987 In that event, they cannot claim payment of the rental for the period for which the telephone remained out of order January 1, 1987 THE rental is for providing telephone service; else it would amount to a case of unjust enrichment of a party in breach January 1, 1987 Such a situation is not favoured by the law of contract January 1, 1987 A party in breach cannot claim enforcement of the duties of the other party January 1, 1987 It cannot take advantage of its own wrong January 1, 1987 By its order dated October 31, 1985 the Telecommunication Board has provided for grant of rebate of rental if the telephone service of a subscriber remained interrupted for 30 days or more January 1, 1987 It has been argued by learned counsel for the respondents that the order is not retrospective January 1, 1987 This is correct January 1, 1987 This order cannot be enforced retrospectively January 1, 1987 No relief can be granted under this order in cases where the telephone service remained interrupted or inoperative prior to October 31, 1985 January 1, 1987 17. THE rental is charged for telephone service provided January 1, 1987 Ex hypothesis, there seems no liability to pay when telephone service is not provided at all January 1, 1987 This is all the more so when the telephone authorities do not do their duty January 1, 1987 In spite of repeated complaints they just sit tight January 1, 1987 They act with alacrity when this Court directs them to restore the telephone January 1, 1987 Then they forget their complaint about lack of space, constant diggings etc January 1, 1987 and restore the telephone almost immediately January 1, 1987 In such cases to allow them to demand payment of rental appears to be gross violation of all notions of justice and fair play and also of the true import of the Rules January 1, 1987 It wilt only whet their appetite for callous disregard of statutory duties no doubt, THE telephone department will suffer loss of revenue January 1, 1987 THE department will be free to compensate the loss by directing recovery from the salary payable to the negligent officers of the department January 1, 1987 It is time some such action is taken January 1, 1987 It may then inspire them to take their duties seriously January 1, 1987 18. IF the telephone became dead during the course of the cycle, only the proportionate rental for the period the telephone was in working order would be chargeable January 1, 1987 For the rest period or for cycles during which the telephone remained dead, the telephone authority will not be entitled to charge rental January 1, 1987 In cases where payment has been made for such periods it will be liable to be refunded or adjusted against future bills January 1, 1987 In case there is a refund or adjustment for any broken period of cycle the number of free calls will be reduced proportionately January 1, 1987 In case where there is a dispute whether the telephone became dead and continued out of order for a particular period, the same may be decided by arbitration under S January 1, 19877B of the Indian Telegraph Act January 1, 1987 The telephone will not be disconnected for non-payment of rental for a period when it was dead January 1, 1987 The respondents submitted that the "usual order" made by a learned single Judge was not justified January 1, 1987 One of the directions given was that if the telephone goes out of order in future, it will be restored in three days January 1, 1987 With respect it is difficult to agree to such a position January 1, 1987 It is unnecessary to examine it any further, because an interim order lasts during the pendency of a case and it comes to an end with its final disposal January 1, 1987 The "usual order" made in the present group of cases was an interim order January 1, 1987 It comes to an end now January 1, 1987 19. IN the result, the applications are allowed in terms of the directions laid down above no order as to costs January 1, 1987 Order accordingly January 1, 1987.