RAJIV KESAVAN Vs. UNION OF INDIA

JUDGEMENT

(1.) Short question that arises in all these Original Petitions relates to the quantum of commission payable to licencees, who operate S.T.D. public telephone booths. According to petitioners, they are entitled to 20% of unit call charges without any slab system. In other words, they contend that they are entitled to 20% of Rs.1.25, which is the tariff per unit call metered in the exchange and there cannot be any reduction in the commission, even if the number of unit calls go beyond 10,000 a month. On this basis, they pray for the issue of a writ of mandamus directing the respondents to give a commission of 20% of unit call charges on S.T.D./I.S.D. calls.

(2.) Since learned counsel representing the petitioner in O.P. No. 7180/93, led the argument in this batch of cases and counsel representing the petitioners in the other Original Petitions adopted the same contentions, I consider it advantageous to refer to the facts in O.P. No. 7180/93. Petitioner is maintaining a public call office from 1990 onwards. Department of Telecommunications invited voluntary organisations and private agencies to establish and work pay-phones on certain conditions. Operating agency was authorised to charge Re. 1/-per call. In case of local pay-phones, out of Rs.1/-, 0.40 paise per call was allowed to be retained by the agency and 0.60 paise to be paid to the Department. In the case of S.T.D. pay-phones, Department's share per unit call was 0.80 paise. From this, petitioner contends that the Telecommunications Department authorised to collect 40% of the call charges in the case of local call pay-phones and operators of S.T.D. public pay-phones have been authorised to retain 20% of the call charges. It is so notified as could be seen from Ext.P2. Pursuant to the notification and publications made by the Department to that effect, petitioners took up the job of running call offices. While so, Government of India increased call charges from Rs.1/- to Rs.1.25. There was no corresponding increase in the commission to the operators/franchisees. According to the petitioners the above stand taken by the respondents, is contrary to the terms of the agreement and arbitrary. It is also their contention that petitioners got the booths on the basis of the promise that they are entitled to 20% of the call charges realised from customers, who operate S.T.D. public telephones. Consequently, the Department is estopped from reducing the commission without the sanction or consent of the petitioners. Hence these Original Petitions.

(3.) Respondents have filed a detailed counter-affidavit. Contentions raised therein, are to the following effect: Petitioners were given permission to operate S.T.D. public call offices in accordance with the agreement executed between the petitioners on the one hand and the Department on the other. That agreement was subject to the terms and conditions laid down in the Government of India Notification No. 31-10/88-PHB, dated 6-7-1988. As per that notification, licensee was permitted to charge Rs.1/- per unit call, from the public made from the pay-phones. Licensee was to pay to the Department 0.80 paise per metered call unit in the case of S.T.D. pay-phones and 0.60 paise per metered call unit for local call pay-phones. Thus, the licensees can retain 0.20 paise and 0.40 paise for each metered call unit respectively. Thereafter, Government of India, by Notification No. 6-5/89/PHB, dated 1-9-1989, revised the tariff of local/S.T.D. public telephones. That underwent further change as per Notification No. 6-1/90-PHB, dated 1-5-1991. At no point of time, Department contracted with petitioners allowing them to retain 20% of the call charges in the case of S.T.D. public telephones and 40% of the unit call charges in the case of non-S.T.D. public telephones. Licensees were allowed to retain 0.20 paise per unit call in the case of S.T.D. public telephones and 0.40 paise per unit call in the case of non-S.T.D. public telephones. The question of percentage of unit call charges does not arise under any of the notifications issued by the Government of India or under the agreement entered into between the operators and the Department.