Balachandran Nair v. General Manager, Telecom, BSNL, Kollam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940** ## **WP(C).No. 31385 of 2018** ## **PETITIONER:** **BALACHANDRAN NAIR, AGED 52 YEARS S/O APPUKUTTAN NAIR, MARATHAZHIKATHU VEEDU, KUREEPUZHA P.O., KOLLAM.** **BY ADV. SRI.ARUN BABU** ## **RESPONDENTS:** |**1**|**GENERAL MANAGER,**| |---|---| ||**TELECOM, BHARAT SANCHAR NIGHAM LTD (BSNL),**| ||**VELLAYITTAMBALAM, KOLLAM 691 012.**| |**2**|**DEPUTY TAHASILDAR,**| ||**REVENUE RECOVERY, TALUK OFFICE, KOLLAM-691001.**| |**3**|**TELECOM REGULATORY AUTHORITY OF INDIA,**| ||**REPRESENTED BY ITS CHAIRMAN, MAHANAGAR**| ||**DOORSANCHAR BHAWAN, JAWAHARLAL NEHRU MARG, NEW**| ||**DELHI-110002.**| ||**BY ADV. SMT.MOLY.E.V., CGC**| ## **OTHER PRESENT:** **GP K.M.RESMI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 31385 of 2018** -2- ## **JUDGMENT** The writ petition is filed seeking the following prayers; I) _“Issue a writ of Mandamus or any other writ, order or direction to the 1[st] respondent to initiate proceedings under Section 7B of the Telegraph Act for the Exhibit P3 demand notice disputed by the petitioner._ _ii) Issue a writ of Mandamus or any other writ, order or direction to the 2[nd] respondent to stop all further proceedings pursuant to Exhibit P4 notice till the proceedings under Section 7B of the Telegraph Act has been initiated and completed by the 1[st] respondent”._ 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the 1[st] respondent. 3. The learned counsel for the petitioner would submit that, the petitioner had availed an international roaming connection from the 1[st] respondent on 09.10.2015. It is stated that the petitioner had traveled to China. The petitioner ## **WP(C).No. 31385 of 2018** -3- could use the connection only for a few days and the connection was disconnected. It is stated that, a demand notice dated 27.10.2016 was issued by the 1[st] respondent demanding an amount of Rs.69125/-. The petitioner submitted Ext.P2 objection to the same. Further demand notice dated 18.01.2017 and revenue recovery notices were thereafter issued against the petitioner. It is stated that Ext.P5 application under the Right To Information Act seeking the issuance of the detailed bill. But inspite of further representations, no detailed bill was forwarded to the petitioner. 4. The learned counsel for the petitioner would submit that, since a dispute has been raised as regards the bill issued by the respondent, the matter ought have been referred for arbitration in terms of Section 7B of the Telegraph Act,1885. Riling on a decision of this ## **WP(C).No. 31385 of 2018** -4- Court in **S** _**ubaida Ashraf v. District General Manager and Another in 2010(1) KHC 162,**_ the learned counsel would contend that, where dispute has been raised, the only option available to the authorities is to settle the dispute through arbitration as provided in the Act. 5. A counter affidavit has been filed by the 1[st] respondent. It is contended that, the international roaming was activated on 08.10.2015 and the petitioner had paid Rs.5000/- as security deposit. A bill dated 03.11.2015 for the period from 09.10.2015 to 31.10.2015 had been issued to the petitioner. Ext.R1(3) is produced in evidence of this fact. Ext.R1(3) shows that the bill for an amount of Rs.68109/- has been raised and sent to the petitioner's residential address at Kureepuzha at Perinadu, Kollam. It is further submitted that, the petitioner had admitted that the bill had been received by him in Ext.R1(5) ## **WP(C).No. 31385 of 2018** -5- application under the RTI Act. It is stated that the commercial records with regard to the communications exchanged on the network are preserved only for a one year period, and that in the absence of such records, the settling of the dispute through arbitration is practically not possible. 6. It is further submitted that, the petitioner had been informed by the respondents that his complaint is belated and that no action can be taken since the commercial records were not preserved since the complaint raised by the petitioner was beyond the period of one year. Ext.R1(6) communication dated 19.05.2018 issued by the 1[st] respondent to the Telecom Regulation Authority of India is also relied on in support of this contention . 7. A reply affidavit has also been placed on record by the petitioner contending that ## **WP(C).No. 31385 of 2018** -6- Ext.R1(3) bill allegedly generated on 03.11.2015, shows only an international roaming charge of Rs. 59223/-. It is stated that, such bill was never received by the petitioner and that as soon as the 1[st] demand dated 27.10.2016 was received by the petitioner, she had raised her objection to the same, which is liable to be considered as a 8. I have considered the contentions advanced, it is clear that, Section 7B of the Telegraph Act, 1885 provides statutory arbitration in case a dispute regarding the services is raised by the petitioner. Section 7(B) specifically states that, if any dispute concerning any telegraph lines or apparatus arises between the Telegraph Authority and the persons for whose benefit the line, appliance or apparatus is providing. The dispute shall be determined by arbitration. This Court in the ## **WP(C).No. 31385 of 2018** -7- decision _**Subaida Ashraf** (supra)_ has specifically held that the arbitration provided under Section 7B is statutory arbitration and as such, its ousts the jurisdiction of all other fora to consider such dispute. It is a specific case of the petitioner that the 1[st] demand received by the petitioner was the one dated 27.10.2016 and that she has immediately submitted an objection. It is clear from Ext.R1(6) communication that a complaint had been raised by the petitioner. It is stated that, the complaint has been inquired into and found that the bill is correct. I am of the opinion that the contention raised by the learned counsel for the petitioner that the dispute raised ought to have referred for arbitration, appears to be a tenable contention. 9. In the above view of matter this writ petition is disposed of directing the respondent to refer the dispute received by the petitioner **WP(C).No. 31385 of 2018** -8- to arbitration and to settle the same through the procedure as provided in Section 7B of the Indian Telegraph Act,1885. The petitioner shall remit a further amount of Rs.15000/- within one month as condition for consideration of the matter. In case such amount is remitted, further coercive proceedings shall await a decision in terms of Section 7 B of the Telegraph Act The writ petition is disposed of accordingly. ## **SD/-** ## **ANU SIVARAMAN** ## **JUDGE** SJ 06.02.2019 ## **WP(C).No. 31385 of 2018** -9- ## **APPENDIX** ## **PETITIONER EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE DEMAND NOTICE DATED 27.10.2016 ISSUED BY THE 1ST RESPONDENT EXHIBIT P2 THE TRUE COPY OF THE POSTAL SLIP DATED 5.12.2016** - **EXHIBIT P3 THE TRUE COPY OF THE NOTICE DATED 18.1.2017 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT** - **EXHIBIT P4 THE TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 25.10.2017** - **EXHIBIT P5 THE TRUE COPY OF THE REPLY DATED 5.12.2017 ISSUED BY THE DEPUTY GENERAL MANAGER (PLG) AND CPIO, BSNL** - **EXHIBIT P6 THE TRUE COPY OF THE REPRESENTATION DATED 26.6.2018 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT** - **EXHIBIT R1-1 THE TRUE COPY OF THE CUSTOMER APPLICATION FORM** - **EXHIBIT R1-2 A TRUE COPY OF THE INSTRUCTIONS RELATED TO DATE USAGE ON INTERNATIONAL ROAMING AVAILABLE IN THE WEBSITE http://ir.bsnl.co.in** - **EXHIBIT R1-3 THE TRUE COPY OF THE BILL DATED 03.11.2015** - **EXHIBIT R1-4 THE DETAILS OF THE SMS SENT BY THE BILLING SYSTEM** - **EXHIBIT R1-5 THE TRUE COPY OF THE RTI APPLICATION EXHIBIT R1-6 THE TRUE COPY OF THE LETTER DATED 19/05/2018**