1995 PLP 476 (CLC)

The respondents, admitted the disconnection of official telephone of the petitioner bearing No. 2556 but asserted its authority to do the same under rules on account of the failure of the petitioner to clear the dues outstanding against the petitioner for the use of Tele No. 2012 installed at the residence of Registrar, Cooperative Societies. The respondents, first in the para‑wise comments upon the writ petition, and subsequently in the detailed written statement, relied upon Rule 8(ii) of Chapter I to Telegraph and Telephone Manual, Vol. VI, the extract of which is as follows: "(ii) Connection of subscriber against whom arrears are due in respect of a closed connection or connections, should not be allowed to continue. In such cases the Divisional Engineer or the Accounts Officer, Telephone Revenue should disconnect the working connection of defaulters after giving them a week's notice under condition 4 of the Hiring Contract in form Eng‑15". I've heard the learned Advocates. During the course of arguments, the respondents were asked to furnish the detailed monthly bills to the petitioner with respect to Tele No. 2012. The same was furnished to the petitioner with a copy thereof to the Court on 25‑8‑1994. It is admitted position between the parties that Tele No. 2012 was shifted to the residence of Registrar, Cooperative Societies in April 1988, thus the petitioner under law, is bound to make the payment for the outstanding dues for the above‑referred telephone from the date it was installed at his residence (or the residence of his predecessor). The detailed bill supplied reveals that an amount of Rs.9019.15 is outstanding against the Registrar, Co‑operative Societies for the use of Tele No. 2012 at his residence at Gojra with effect from 27‑4‑1988. An amount of Rs.1,083.04 is the amount which remained outstanding against the above referred telephone before its shifting to the residence of Registrar, Co?operative Societies. A letter of the petitioner addressed to the respondents dated 18‑7‑1988 reveals that it was expressly brought to the notice of respondents that Tele No. 2012 was first installed at the residence of Secretary Revenue and on his retirement, it was shifted for the use of Deputy Director Local Government. The respondents have admitted the receipt of the letter of the petitioner dated 18‑7‑1988 vide their reply sent to the petitioner on 1‑8‑1988, wherein it is stated that "this office maintains its accounts mainly on telephones Nos. which has been recorded on ledgers/registers. Any outstanding balance against a particular telephone will properly be accounted for in the ledger/register pertaining to that particular telephone number. In fact it is the telephone numbers around which everything revolves. Government Departments/subscribers keep on changing on one pretext or the other but the outstanding amount of the telephones cannot be changed/separated from the telephone". The above‑stated admitted facts make it clear that the petitioner was bona fidely disputing his liability for the reasons that his letter dated 18‑7‑1988 is not denied, the split bill was not supplied to him until ordered by Court, the split bill supplied, prima facie reveals an over‑charging of Rs.1,083.04 etc. The letter of the petitioner dated 18‑7‑1988, thus speaks of the petitioner's credibility. The reply letter of respondents dated 1‑8‑1988 in which the contentions of the petitioners referred in his letter dated 18‑7‑1988, have not been denied by the respondents and it is surprising to note that the outstanding amount against the telephone number is stated by the respondents to be charageable from the subscriber to whom the defaulting telephone is allotted. Logic of the respondents is not only against the common sense and natural justice but against the spirit of rule (s) relied upon by them as well, that the subsequent subscriber for whose use a defaulting telephone number is shifted is held responsible for the outstanding amount against a telephone number which was not in his use. It is for the Department/Organization not to shift the defaulting telephone number for use of any other subscriber unless the outstanding dues are cleared by the earlier defaulting subscriber or make the new subscriber aware about the default of payment against the telephone number or allot a new number to him. There is no doubt that telephone numbers keep on changing by shifting or by renumbering but it does not mean that a defaulting number carries its default for a person who has never been a defaulter for whole or any part of the amount or in use of a number. Every one is accountable and answerable for his own deeds or misdeeds. The Almighty has settled the principle by revealing: "Each soul earneth only on its own account, nor doth any laden bear another's load." (Sura Al‑Anam: Verse No. 164‑‑AI Qur'an) Thus the petitioner was not responsible for payment of the outstanding amount when Telephone No. 2012 was not in the use ‑of Registrar, Cooperative Societies for office or residence and is in fact bound to clear the outstanding amount due against him only. Thus it is not the number but the subscriber in whose use the number was, who is responsible for clearing the outstanding amount. Now the question as argued at bar is as to whether the petitioner is a defaulter and if so, whether his official telephone number could do disconnected for the default if any? The rule under which the respondents are deriving their authority to disconnect the working connection, of the defaulters, revolves around the word "defaulter". None of the learned counsel for the parties has placed before the Court the definition, if any, of the word defaulter prescribed by the rules or Manual of the Telecommunication. Thus resort will have to be made to its dictionary meanings. Ballentine's Law Dictionary, defines the word "default" as follows: "Fault; neglect; omission; the failure to perform a duty or obligation; the failure of a person to pay. money when due or when lawfully demanded." . In Black's Law Dictionary, the word "defaulter" is defined as: "defaulter". One who is in default. One who misappropriates money held by him in an official or fiduciary character, or fails to account for such money". Similarly the word "default" is defined as: "By its derivation, a failure. An omission of that which ought to be done. Specifically, the omission or failure to perform a legal or contractual duty; to observe a promise or discharge an obligation (e.g. to pay interest or principal on a debt when due)." The petitioner in view of above‑referred definitions, does not fall in the category of default or defaulter. As said somewhere above, the petitioner has through his letter dated 18‑7‑1988 denied his liability and contended that the telephone, before its shifting to the residence of the petitioner or his predecessor, was in use of Secretary, Revenue and Deputy Director, Local Government, who are responsible to make the payment; the petitioner has been asking the respondents to supply him with the details of the bill, which they have not supplied; the petitioner has undertaken to make the payment if found due against him vide his letter dated 5‑1‑1994. The respondents have acted without lawful authority in holding the petitioner defaulter and liable to action under the above‑quoted rule. As for the objection that the petitioner could not file the petition without permission of the Government is concerned, same cannot be accepted as under section 44(2) of the AJ&K Interim Constitution Act. 19'74, a petition can be filed by any `aggrieved party'. The petitioner is a party aggrieved by the therefore, competent to invoke the action of the respondents and is, jurisdiction of the Court. The remedy under the Constitution is extraordinary, which is not like other litigations ordinarily fought in the Courts. The moment High Court assumes jurisdiction in a matter under its extraordinary jurisdiction, it is then left to the discretion of the Court to see as to whether the relief should be granted or not. The benefit of the relief under section 44 of the Constitution, no doubt, flows in favour of a party, but it is actually the command of the law to which the public authority is ordered to adhere to and the rule of law is restored. The Court is obliged to set the course of law straight, if in its judgment and knowledge, the public authority has exceeded its limits. Notwithstanding the above, the Law Department has authorized the Advocate in the case to initiate legal proceedings against the Tele? communication. The point as to whether another functional number of a defaulter (if a person found to be defaulter) can be kept hostage or disconnected for default of payment of other disconnected number of the, subscriber, is left open and shall be decided in some other case, when it is argued at length. In view of above, the order of disconnection of Telephone No. 2556 is hereby held to be without lawful authority and it is ordered to be restored forthwith. The liability for the payment against the Telephone No. 2012 may be settled by the parties in accordance with law. In the circumstances of the case, no order as to costs. A.A./57/AJK?????????????????????????????????????????????????????????????????????????????????????? Petition accepted.