L VEERANJANEYULU Vs. GENERAL MANAGER TELECOM DEPARTMENT

JUDGEMENT

(1.) THIS writ petition seeks a direction to the respondents to restore the STD public telephone No.52703 without insisting on payment of Rs.9,600/-.

(2.) THE petitioner had entered into an agreement on 3-8-1991 for having a public STD connection. One of the conditions of the agreement was that the public telephone hirer (the petitioner) agrees to give a guarantee of Rs.2,000/- per month as the minimum amount of revenue. It is stated that the recent guidelines had reduced that minimum amount to Rs.1,600/-. On 11-1-1993, the petitioner was found to be absent at the booth and the department took the view that since the petitioner was not present in the booth, the connction should be discontinued and gave a show-cause notice on 11-1-1993. THE petitioner gave a reply dated 23-3-1993 stating that he had been in the hospital on that date. However, the department discontinued the telephone on 8-2-1993. THE petitioner sought re-connection on 5-8-1993, whereupon the department made the demand for Rs.9,600/- being the minimum guarantee for the period 8-2-1993 to 4-8-1993. THE petitioner filed this writ petition questioning the validity of the demand. An interim direction was given on 20-9-1993 to the department to consider the restoration of the STD public telephone without insisting on payment of Rs.9,600/-, THE department did not grant the reconncction, instead filed a counter-affidavit with an application for vacating that interim direction. Since the matter in the interim petition and the mam petition is the same, I have heard the writ petition itself and both the sides have argued the case. In the counter-affidavit it is stated that it was a condition in the agreement that a monthly revenue of Rs. 1,600/- should be guaranteed irrespective of the functioning of the telephone and it is not open for the petitioner to commit breach of this agreement by not depositing the agreed amount THE learned counsel for the respondent submitted that restoration of the connection without the requisite deposit will have an impact on the revenues of the department and cannot be acceded to. I am afraid, I am unable to accept this contention. THE question of insisting on the terms of the agreement can arise only if the agreement itself can be performed.When the telephone connection was discontinued, there was a fundamental breach of the contract inasmuch as the necessary facility for earning the revenue was denied to the petitioner. It is not possible for the respondent to insist that the petitioner should pay the minimum guarantee amount without making available the telephone connection. I, therefore, accept the claim of the petitioner that as long as the telephone connection is not kept alive, the minimum guarantee condition in the agreement cannot be enforced. I, accordingly, direct the respondents to consider the application of the petitioner for restoration of the STD public telephone connection, without reference to the condition of the minimum guarantee for the period for which the telephone connection was not made available, within a period of one month from the date of receipt of this order. With this direction, the, writ petition is disposed of. No costs.