MAHANAGAR TELEPHONE NIGAM LIMITED Vs. V P DHINGRA

JUDGEMENT

(1.) An order passed on 22.12.1993 by Shri J.K. Pali,Senior Sub Judge, Delhi is under challenge by the petitioner in this petition filedunder Article 227 of the Constitution of India by which a direction was made in apetition preferred by the respondent against the petitioner to restore the Public CallOffice Telephone No. 3278942 installed at 751, Sui Walan, Darya Ganj, Delhi. In thealternative, a prayer is made that revisional power under Section 115 of the Codeof Civil Procedure be exercised for questioning the impugned order.

(2.) The Public Call facility through telephone No. 3278942 was available at theaforementioned premises where the respondent has been doing the practice inmedicines for the last more than 30 years. It has been the case of the respondent thathe had been operating as a PCO Agent of the petitioner under an agreement and thefacility of PCO is available at the premises for the last about two decades. On25.1.1993 a show cause notice was issued by the petitioner to the respondentalleging that PCO Telephone was being misused which act was in contravention ofIndian Telegraph Rules, 1951 (for short the Rules). Reply to show cause notice wassubmitted on 5.2.1993 by the respondent denying the allegations. According to therespondent he did not receive any communication thereafter from the petitionerdespite the fact that on 1.3.1993 a letter was also addressed by the respondent to theGeneral Manager requesting him to look into the matter personally and to withdraw the notice. On 3.5.1993 another reminder was sent by the respondent to thepetitioner for withdrawal of show cause notice. It was further alleged that on18.5.1993 respondent received another notice dated 17.5.1993 from the petitionercalling upon the respondent to fill up a new proforma, being a revised agreementwithin two weeks failing which it was stated that the PCO Facility was likely to bewithdrawn. Respondent feeling aggrieved against the threatened action, ascontemplated in the letter dated 17.5.1993 took up the matter to the Court by filinga petition under Section 20 of the Arbitration Act read with Section 7-B of the IndianTelegraph Act, 1885 raising a dispute that the petitioner had no right to revise theterms and conditions of the previous agreement and prayed that in terms of Section7-B of the Act the question raised by him deserves to be referred to an Arbitrator.

(3.) Petitioner put in appearance in the aforementioned proceedings and filedits reply in which a preliminary objection was raised that in response to noticedated 25.1.1993 PCO actually stood disconnected on 1.3.1993, after giving duenotice under Rule 421 of the Rules. It was through a genuine bonafide mistake thatin routine letter dated 17.5.1993 was issued to the respondent. Since PCO telephonealready stood disconnected, there was no question of the respondent having anyright to approach the Court in seeking the appointment of an Arbitrator. Therespondent, in view of the petitioner's version, as contained in its reply applied tothe Court for an interim relief stating that for the first time on the basis of theaverments made in the reply of the petitioner that he has come to know that PCOtelephone has been disconnected on 1.3.1993. He was not made aware of this factearlier and moreover disconnection under Rule 421 was bad in law since Rule 421was not applicable, which is applicable only in the case of a subscriber of atelephone. He was not a subscriber of a telephone but was an agent under anagreement. According to him, paras 4 A and 5 as contained in petitioner'sNotification No. 2-7/71 PHA dated 23.3.1971 would apply and since there was nocompliance, therefore, order being bad, interim order deserves to be issued forrestoration of the PCO facility till decision.