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2015 DIGILAW 1801 (HP)

Union of India v. Er. Deep Chand Mehta

2015-12-04

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 31.8.2005 rendered by the District Judge, Kinnaur Civil Division at Rampur Bushahr in Civil Appeal No. 13 of 2005. 2. “Key facts” necessary for the adjudication of this appeal are that appellants-plaintiffs (hereinafter referred to as the “plaintiffs” for convenience sake) filed a suit for recovery of Rs. 94,939/- against the respondent-defendants (hereinafter referred to as the “defendants” for convenience). According to the averments made in the plaint, telephone connection bearing No. 34160 was provided to the defendants at their request at Rampur Bushahr. Defendants availed and used the telephone facility. However, they did not pay the telephone bills for the period from November, 1995 to May, 1997 amounting to Rs. 94,939/-. Necessary bills were issued but the same were not paid by the defendants. 3. Suit was contested by defendant No.1. According to the stand taken by defendant No.1, the business was closed well before November, 1995. The company sent letter dated 24.8.1995 through U.P.C. and registered letters dated 27.2.1995 and 16.11.1995 to the officials of plaintiffs at Rampur Bushahr whereby it was intimated to disconnect their telephone connection. However, no action was taken by the officials of the plaintiffs. Defendant No.2 has also filed written statement. According to him, he was simply in the employment of defendant No.1 from October, 1993 to March, 1995. Telephone was never installed by him. 4. Issues were framed by the Civil Judge (Junior Division), Rampur Bushahr on 13.4.2004. He dismissed the suit on 28.8.2004. Plaintiff filed an appeal before the District Judge, Rampur Bushahr against the judgment and decree dated 28.8.2004. He dismissed the same on 31.8.2005. Hence, the present appeal. It was admitted on the following substantial questions of law: 1. Whether the courts below have travelled beyond the evidence and have based judgment on conjectures and surmises, thereby vitiating the judgments and decree of both the courts below? 2. Whether the both courts below have properly interpreted the section 7-B of Indian Telegraph Act, 1985 specially when there is no dispute concerning Telegraph line or apparatus or appliance as it was sent for recovery only thereby vitiating the judgment and decree of both the courts below? 3. Whether the courts below have properly decided the issue of jurisdiction and thereby vitiating the judgment and decree of both the courts below? 5. Mr. 3. Whether the courts below have properly decided the issue of jurisdiction and thereby vitiating the judgment and decree of both the courts below? 5. Mr. Ashok Sharma, learned Assistant Solicitor General of India, on the basis of the substantial questions of law framed, has vehemently argued that the courts below have travelled beyond the evidence and section 7-B of the Indian Telegraph Act, 1985 was not attracted. He has lastly contended that the Civil Court had the jurisdiction to decide the lis between the parties. 6. Mr. G.D. Verma, learned Senior Advocate has supported the judgments and decrees passed by both the courts below. 7. Proprietor of defendant No.1 Champa Lal Jain has died during the pendency of the appeal and her name was deleted vide order dated 7.10.2009. 8. I have heard the learned counsel for the parties and have gone through the records carefully. 9. Since all the substantial questions of law are interconnected and interlinked the same are taken up together for determination to avoid repetition of discussion of evidence. 10. PW-1 Gian Dass has categorically admitted that letter Ex.DA dated 24.8.1995, registered letter Ex.DC dated 27.9.1995 and letter Ex.DE dated 16.11.1995 were sent by defendant No.1 to the Assistant Engineer, Telecommunication Department, Rampur Bushahr under U.P.C. Ex.PB dated 24.8.1995, postal receipt Ex.DD dated 27.9.1995 and U.P.C. dated 16.11.1995. These were correctly addressed. Thus, it is presumed under section 27 of the General Clauses Act that the same were delivered to the addressee. According o letter Ex.DA, Ex.DC and Ex. DE, request for disconnecting telephone No.34160 provided to the company at its office at Chuhabag (Rampur Bushahr). It was incumbent upon the plaintiffs to prove that what action has been taken on these letters. PW-1 Gian Dass has admitted that these letters were not shown to him by the officials of the plaintiffs’ Department Rampur Bushahr. The plaintiffs also could not prove that defendant No.2 was in the employment of defendant No.1. It has come in the statement of DW-1 N.K. Mittal and DW-2 Deep Chand that business premises of defendant No.1 were locked by the landlord. It is in these circumstances, defendant No.1 had sent communication to the plaintiffs to disconnect the telephone connection. The plaintiffs under rule 443 of the Indian Telegraph Rule, 1951 are required to disconnect the telephone connection forthwith if anyone fails to pay the bills. It is in these circumstances, defendant No.1 had sent communication to the plaintiffs to disconnect the telephone connection. The plaintiffs under rule 443 of the Indian Telegraph Rule, 1951 are required to disconnect the telephone connection forthwith if anyone fails to pay the bills. It was always open to the plaintiffs to disconnect the telephone connection between November, 1995 to May, 1997. 11. Learned Single Judge of the Orissa High Court in Smt. Makhani Devi Banka vs. Union of India, AIR 1981 Orissa 11 has held that the telephone set provided to subscriber being apparatus within section 7-B (1) the claim is covered by that section and the civil court’s jurisdiction to entertain it stands ousted. Learned Single Judge has held as under: “[4] The legislative intention behind in-corporation of Section 7-B of the Act seems to be that disputes relating to telephone lines, appliances or apparatus between the subscriber and the telegraphs authority should be arbitrated upon and finality has been attached to the award. There is no dispute before me that the telephone set provided to the defendant as a subscriber is an apparatus within the meaning of Sub-section (1) of Section 7-B of the Act. Sub-section (1) is in wide terms and any dispute concerning the apparatus is covered by it. The bills in question related to the user of the apparatus. In the circumstances, I see no justification to accept the stand of learned Standing Counsel for the Union of- India that the dispute in question was not covered by Sub-section (1) of Section 7-B of the Act. [5] Sub-section (2) of Section 7-B clearly shows that the Civil Court's jurisdiction is ousted in regard to disputes covered by Sub-section (1). Since I have taken the view that the dispute in question is one which would come within the ambit of Section 7-B (1) of the Act, the Civil Court would have no jurisdiction to try the suit. The learned Subordinate Judge relied upon a single Judge decision of the Allahabad High Court in the case of Raghubar Dayal Manodia v. Union of India, AIR 1970 All 143 . The Allahabad High Court was examining the matter under Article 226 of the Constitution and the observations made therein were with reference to the constitutional jurisdiction of the Court. I do not think, any support is available from that decision for disposing of the present dispute.” 12. The Allahabad High Court was examining the matter under Article 226 of the Constitution and the observations made therein were with reference to the constitutional jurisdiction of the Court. I do not think, any support is available from that decision for disposing of the present dispute.” 12. The Division Bench of Gujarat High Court in Govindbhai Premjibhai Chovatia vs. Chief General Manager, Gujarat Telecom Circle, Ahmedabad and others, AIR 1996 Gujarat 153 has held that dispute with Department of Telecommunications regarding recording of calls, remedy is before arbitrator as provided under section 7-B of Telegraph Act and the civil suit is barred. The Division Bench has held as under: “[8] In our opinion, Sec. 7-B of the Act has to be widely construed. Section 7-B, like any arbitration clause, provides that 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 apparatus is or has been provided, the dispute would be determined by arbitration. A dispute with regard to the recording of the calls would necessarily fall within the ambit of Sec. 7-B of the said Act. In this connection we are fortified by the decisions of the different High Courts, which have held that the provisions of Sec. 7-B of the Act would be applicable. These decisions are reported at 1964 MPLJ 831; AIR 1982 Delhi, 111 (Union of India v. Usha Spinning & Weaving Mills Ltd.); AIR 1977 Delhi 132 (M/s. Om Oil & Oilseeds Exchange Ltd. v. Union of India); AIR 1977 Orissa 48 (Nityananda Sahu v. Post Master General Orissa, Bhubaneswar); AIR 1981 Orissa 11 (Smt. Makhani Devi Banka v. Union of India); AIR 1980 Kerala 201 (P. S. Anthappan v. The District Manager, Telephones). [9] The learned single Judge was, therefore, right in coming to the conclusion that an adequate alternative remedy, under the Telegraphs Act by way of arbitration, was available. In fact, due to the existence of Sec. 7-B, even the jurisdiction of the Civil Courts under Sec. 9 of the Code of Civil Procedure, would be regarded as impliedly ousted. Therefore, even a Civil suit challenging the correctness of the bills so raised would not be maintainable in a Civil Court. It is no doubt true that the interim order had been issued requiring the appellant-petitioner to pay only 25% of the bill to be paid. Therefore, even a Civil suit challenging the correctness of the bills so raised would not be maintainable in a Civil Court. It is no doubt true that the interim order had been issued requiring the appellant-petitioner to pay only 25% of the bill to be paid. It is pertinent to note that now it has been held by a catena of decisions that the demand which has been raised by such tax authorities providing public facilities should not be lightly interfered with or stayed. The Court should rarely, if ever, interfere with the payment of the bills which are raised. Of course, if there is dispute with regard to the amount which is being demanded that dispute has to be decided in accordance with law but merely because a dispute is raised should be no ground to grant the stay of the demand. The proper exercise of the jurisdiction would be to see that the payment of the bill as demanded is made and if the grievance is upheld in Arbitration the excess amount paid can be adjusted in future bills and if need arises or the Court so determines, even the interest on the excess amount paid can be awarded. The public Corporation do not and cannot continue to function and provide the requisite services without due payments being made. Even the direction of providing bank guarantee in place of payment of tax is of no assistance because public Corporations cannot run merely on bank guarantees.” 13. The courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments and decrees passed by both the courts below. 14. The substantial questions of law are answered accordingly. 15. In view of the analysis and discussion made hereinabove, there is no merit in the present appeal and the same is dismissed. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.