Judgment:
ORDER
K. Narayana Kurup, J.
1. The petitioner who is thesubscriber of telephone No. 613326 Madrasprays for the issuance of a writ of certiorari toquash Exts. P5, P7 series, P9, P11, P11(b) andP11(c) and for the issuance of a writ ofmandamus directing the respondents 1 to 3 toreconnect the petitioner's telephone No.613326 and for other incidental reliefs. Thefacts of the case are as follows :
2. The petitioner's telephone No. 613326 was installed at his residence 2A, Temple Rock, No. 44, New Avadi Road, Madras. Since he shifted his residence from Madras, he made Ext. P1 application to the second respondent for keeping the telephone under safe custody with effect from 30-11-1988. Ext. P1 was followed by Exts. P2 and P3 reminders addressed by the petitioner to the second respondent to confirm action has been taken pursuant to Ext. P1. Ext. P4 is yet another representation submitted by the petitioner to the second respondent requesting him to confirm that his telephone has been kept under long duration safe custody as desired in Ext.P1 letter. But, to the utter consternation of the petitioner, he received Ext. P5 communication from the first respondent informing him that 'the telephone No. 613326 installed at the above address foryour use is being unauthorisedly used by a third party viz. Shir Yusuf Ahamed and that you are not available at the said premises 'and that he has contravened the provisions of the Indian Telegraph Rules under which the telephone was provided, making it liable for disconnection and recovery and further that 'Telephone No. 613326 will be closed and recovered on expiry of Seven Days from the date of this letter under Indian Telegraph Rules 420, for violation of I.T. Rules 429/433, without prejudice to your liability to pay all dues in respect of it.' The petitioner was also informed that he may make any representation on the subject and the same will be considered provided it is received before the expiry of the stipulated period. On receipt of Ext. P5 the petitioner submitted Ext. P6 reply expressing his surprise over the failure of the department in not taking the telephone under safe custody as requested by him with effect from 30-11-1988 and expressing his inability to pay the bills for the telephone calls not actually made by him. In Ext. P6 he has also made a request to the first respondent to take the telephone for safe custody and confirm action. To Ext. P6, the petitioner received Ext. P7 reply in which it is stated that the telephone No. 613326 provided to the petitioner at 2A, Temple Rock, No. 44, New Avadi Road, Madras-10 was found to be under misuse by one Shri Yousuf Ahmed and hence the line was disconnected on 4-4-1989. Ext. P7 further refers to a letter dated 9-3-1989 (Ext. P7(a)) issued by the Area Manager (North) Commercial Branch (North) 1/11, Madras Telephones, Madras to the petitioner narrating the circumstances under which the telephone 613326 could not be taken to safe custody. Ext. P7 also refers to another letter No. P.613326/20 dated 31-12-1988 (Ext. P7(b)) addressed by the second respondent to the petitioner in which it is for the first time stated that the telephone could not be taken to safe custody on 30-11-88 because the petitioner made a telephonic request to the second respondent in the last week of November, 1988 stating that he will be out of station for some time and requesting the second respondent not to act upon Ext. P1 letter until receipt of further communicationfrom the petitioner. Immediately on receipt of Ext. P7 the petitioner gave Ext. P8 reply in which he has categorically denied having made any request to the Area Manager (North) to cancel his request to take the telephone under safe custody. The petitioner has also complained in Ext. P8 that the respondents have failed to comply with the instructions regarding addressing communications to his Calicut address during the period safe custody. To Ext. P8, the second respondent issued Ext. P9 reply in which it is reiterated that the petitioner had requested over phone to the Commercial Officer in his residential phone No. 555486 in the last week of November, 1988 not to act on his request to take the telephone under safe custody and hence the telephone was not taken to safe custody. Immediately on receipt of Ext. P9, the petitioner sent Ext. P10 reply in which it is stated as follows :
'I confirm once again that neither did I make any telephone call to you nor did I authorise any one to make a call with such a request. If only you had advised me in writing to my Calicut address that the safe custody of the telephone has been kept in abeyance consequent to such a telephone call I would have immediately corrected the situation.'
Thereafter, to the surprise of the petitioner the third respondent issued Ext. P11 letter informing the petitioner that his telephone No. 613326 is under disconnection for nonpayment since 2-3-89 and the following bills are yet to be settled :
Bill dated 12-11-88 .. Rs. 5215.0012-01-89 .. Rs. 8367.0012-03-89 .. Rs. 52478.00
Ext. P11(a) is a bill for a sum of Rs. 5,215/-, Ext. P11(b) is a bill for a sum of Rs. 8,367/-and Ext. P11(c) bill is for Rs.52,478/-. Aggrieved by these bills, the petitioner has approached this court with the instant writ petition seeking the reliefs as already noticed above.
3. This court by order in C.M.P. No. 16327/89 dated 30-6-89 issued an interim stay on condition that the petitioner remitsthe amount covered by Ext. P. 11(a) within two weeks from the date of order. As per order in C.M.P. No. 24243/89 dt. 29-9-89 this court issued an interim order staying all further proceedings 'to recover telephone 613326 on the basis of Ext. P. 12' which is a letter addressed by the office of the Area Manager informing him that orders are being issued to recover the telephone for reasons explained in the said letter.
4. Having heard learned counsel for the petitioner and learned counsel for the respondents, I am of the view that the petitioner is entitled to succeed in this original petition.
5. According to me, this is yet another instance of official lethargy and inaction causing hardship and suffering to a citizen which could have been avoided had timely action been taken by the respondents concerned. The question for consideration is whether once a request for disconnection and taking it under safe custody is validly made, thereafter can a subscriber be saddled with pecuniary liability on the ground that the telephone in question was misused by somebody else? In my considered opinion, the answer is, and must be, clearly in the negative. The relation between the subscriber and the department is one of contract and the mere fact that some rules/regulations have been framed by the respondents from time to time to regulate the terms of contract will not take the transaction out of the realm of contract. Being so, it is open for one of the contracting parties to terminate the contract by giving reasonable notice to the other party. In such an event, it is not open for the respondents to say that the contract still subsists -- notwithstanding the fact that it has already been terminated -- and the subscriber is liable for enjoyment of the facility. In other words, a facility which a subscriber has suspended for a time cannot be foisted on him and saddle him with pecuniary liability for the period during which the facility was not enjoyed by him.
6. It is the specific case of the petitioner that as per Ext. P. 1 application dated 20-9-1988 submitted by him before the second respondent (which was duly acknowledged bythe second respondent) he had requested that his telephone be kept under long duration safe custody with effect from 30-11-1988. Ext. P. 1 application cannot be stigmatised as vague so as to warrant further correspondence in the matter. In Ext. P. 1 both the petitioner's Madras address where the telephone is installed as also his Calicut address for further communication is seen expressly mentioned. The period of safe custody required as 3 to 6 months with effect from 30-11-1988 is also explicitly stated in Ext. P. 1. Over and above Ext. P. 1 it is seen that the petitioner has issued Ext. P. 2 letter dated 13-1-89, Ext. P. 3 letter dated 3-2-89 (Regd. A/D.) and Ext. P. 4 reminder dated 7-4-89 to the second respondent seeking confirmation of action taken pursuant to Ext. P. 1 application. But, instead of taking the telephone under safe custody by disconnecting the telephone at the exchange which the respondents alone can do by removing the heat coil and jumper, the respondents confronted the petitioner with Ext.P.5 Letter No. P. 613326/28 dated 16/ 19-4-89 wherein it is stated that the telephone No. 613326 installed at the petitioner's Madras premises for his use is being un-authorisedly used by a third party thereby contravening the provisions of the Indian Telegraph Rules rendering it liable for disconnection. In response to Ext. P. 5 the petitioner submitted Ext. P. 6 reply dated 21-4-1989 expressing his surprise over the failure of the department in not taking the telephone under safe custody so far. In Ext. P. 6 the petitioner reminded the first respondent to take over the telephone for safe custody and confirm action. Ext. P. 7 is the reply received by the petitioner for Ext. P. 6 in which it is stated that 'you were already addressed explaining the circumstances under which this phone could not be taken to safe custody vide letter No. P. 613326/20 dated 31-12-88. In response to your letter dated 3-2-89 you were again addressed vide letter No. P. 613326/ 25 dated 9-3-89 on this subject but the same was returned with postal remarks 'not found'. In Ext. P. 7 there is a reference to a letter dated 9-3-89 (Ext. P. 7(a)) alleged to have been issued in reply to Ext. P. 3 as also to another letter No. P 613326/ 20 dated 31-12-88(Ext. P. 7(b)). Ext. P. 7(b) letter of the second respondent addressed to the petitioner says that the telephone could not be taken into safe custody 'in response to your request to the undersigned in the last week of November 1988 stating that you will be out of station for some time with a request not to act on the letter until a further communication from you on this subject is sent by you.'
7. Having considered the entire gamut of the case 1 find it difficult to believe the version of the respondents in Ext. P. 7(b) regarding the telephonic request alleged to have been made by the petitioner in the last week of November 1988 requesting the respondents not to act upon Ext. P. 1 application. In this connection, it has to be noted that neither in Exts. P. 2, P. 3 and P. 4 reminders issued by the petitioner nor in Ext. P. 6 letter of the petitioner is there any whisper about the telephonic instruction alleged to have been issued by the petitioner during November, 1988 to the second respondent. Ext. P. 3 was duly acknowledged by the second respondent on 7-2-1989. Till Ext. P. 5 dated 16/19-4-89 no communication is seen sent to the petitioner who was at Calicut, regarding any action by the respondents in furtherance of Exts. P. 1 to P. 3. Ext. P. 5 communication to the petitioner is also conspicuously silent about any telephonic request on the part of the petitioner. Viewed in the above background, I have no hesitation in holding that the telephonic instruction alleged to have been issued by the petitioner to not to act upon Ext. P. 1 application is a cooked up story to cover up the laches on the part of the respondents in not taking the telephone under safe custody at the proper time. In this connection, it has to be remembered that according to the normal departmental practice, when a written request is made to take the telephone under safe custody the department will not normally act contrary to the written instruction unless there is a latter instruction cancelling the earlier one. Here, admittedly no such instruction has been issued by the petitioner cancelling the request contained in Ext. P. 1 application. But, on the contrary, the pleadings and circumstances and normal human conduct show a contrary indication. I therefore hold that the respondents are guilty of laches in not effecting disconnection of the petitioner's telephone in time thereby rendering themselves liable for the resultant consequences.
8. It is the stand of the respondents in Ext. P. 7 that the petitioner's telephone was found to be under misuse by one Shri Yousuf Ahmed and hence the line was disconnected on 4-4-1989. As already noticed, the alleged misuse would not have occurred had the respondents been vigilent and had they taken the telephone under safe custody by making necessary disconnection at the exchange. This having not been admittedly done, the petitioner cannot be mulcted with pecuniary liability for the alleged lapses on the part of the respondents. Moreover, in view of the decisions of this court reported in Anthappan v. District Manager, Telephones, 1980 Ker LT 417 : (AIR 1980 Kerala 201) and Dr. Vijayan v. General Manager, (1988) 2 Ker LT 572, holding that mere permissive use of telephone by another cannot be said to constitute misuse, it is highly doubtful whether there is any misuse at all in the instant case even admitting that the telephone was under use by the said Yousuf Ahmed.
9. Apart from all these, it has to be noted that the disconnection itself was effected without due notice to the petitioner in violation of Rule 420 of the Indian Telegraph Rules. By the time Ext. P. 5 notice dated 16/19-4-89 was issued by the respondents to the petitioner at his Calicut address, the telephone was already disconnected as early as on 4-4-89. It is needless to emphasis that any administrative action entailing civil consequences to the subject has to be passed only in strict conformity with the rules of natural justice. Since no valid notice has been issued to the petitioner prior to the disconnection of his telephone, the order of disconnection has only to be set aside.
10. At the outset, learned counsel for the respondents raised a preliminary objection regarding the maintainability of the petition before this court as according to him, this court has no territorial jurisdiction over the Subject matter of the case. Having regard to the fact that the petitioner is threatened with disconnection of his Calicut telephone as perExt. P. 11 letter, I hold that this Court has jurisdiction to entertain this original petition and the preliminary objection relating to jurisdiction is overruled.
11. In the light of the above discussion, I hold that :
(i) there was a valid request from the petitioner as per Ext. P. 1 for keeping his Madras Telephone 613326 under long duration safe custody;
(ii) there is no material on record to hold that the petitioner did make any telephonic intimation to the respondents cancelling the request contained in Ext. P. I application;
(iii) respondents are guilty of laches on their part in not effecting disconnection intime;
(iv) there is no misuse of the petitioner's telephone at Madras;
(v) the petitioner is not liable to clear the arrears due from his Madras telephone evidenced by Ext. P. 1 l(b) and P 1 l(c); and
(vi) his Calicut telephone is not liable to be disconnected as informed by Ext. P. 11.
In the result, I allow this original petition. Exts. P. 5, P. 1 series, P. 9, P. 11 (excluding bill dt. 12-1 i-88 for Rs. 5,215/-) P. 11 (b) and P. 11(c) are quashed. There shall be a direction to respondents 1 to 3 to reconnect the petitioner's telephone No. 613326 at Madras forthwith. There shall be a further direction to the 4th respondent restraining him from taking any steps to disconnect the petitioner's telephones Nos. 73732 and 63816 at Calicut.
Original petition is allowed as above. No order as to costs.