THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.19479 of 2005 Date : 24-1-2008 Between : K.Madhava s/o. K.Krishna .. Petitioner And The Chief General Manager (Telecom), Telephone Bhavan, Saifabad, Hyderabad and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.19479 of 2005 ORDER: 1. The Writ Petition is filed for a Writ of Mandamus or any other appropriate writ or direction declaring the award of the 4th respondent passed in No.DGM-1 (ATP)/Arbitration/Sri K.Madhava/Phone No.222900/2004-05/16 dated 10-3-2005 as illegal and consequently to set aside the same and allow the claim of the petitioner and to pass such other suitable orders. 2. Sri O.Manohar Reddy, Counsel representing the petitioner had taken this Court through the contents of the affidavit filed in support of the Writ Petition and also the contents of the counter affidavit and would maintain that in the facts and circumstances of the case, the order impugned cannot be sustained. 3. On the contrary, Dr.Bhaskar Mohan, the learned Counsel representing the respondents 1 to 3 had taken this Court through the counter affidavit and would maintain that in the light of the clear stand taken in the counter affidavit, the impugned award is perfectly justified and needs no disturbance at the hands of this Court. 4. Heard the Counsel. 5. The petitioner applied for ISDN connection of BSNL and the petitioner was issued a demand note of Rs.18,100/- towards deposit on 23-1-2001. The demand note amount was paid on the same day and the petitioner was given BSNL connection in the month of March 2001 and the same was being used for internet access. It is stated that at that time, the petitioner was informed that the pulse rate for internet access is 2 minutes per unit and the petitioner was using the same accordingly and regularly paying the bill amount pertaining to the calls. For the month of May 2003, the petitioner had received a bill for Rs.53,257/- for the period from 1-5-2003 to 31-5-2003 and was further asked to pay a surcharge amount of Rs.2000/- , thus totaling an amount of Rs.55,527/-. As the bill was excessive, the petitioner had complained to the Assistant General Manager, BSNL, Hyderabad and he was in turn informed that the internet through ISDN is a premium service as per BSNL policy and the charges applicable are as per the charging plan i.e., STD charges for above 50 K.Ms. from the internal node. Not satisfied with the explanation submitted by the Assistant General Manager, the petitioner submitted a representation to the D.D.G. (Internet) at New Delhi. The D.D.G. (Internet) BSNL had written a DO letter No.D.O.No.59-07/03-Internet dated 15- 10-2003 stating that the tariff for internet services from nearest node by dialing 172 xxx is charged as per local call pulse schedule for internet access in different time zones. It is immaterial whether a call is being made by PSTN or ISDN, only the rental varies. It was further mentioned in the D.O. letter that to the petitioner’s complaint, the circle office had responded that being the node distance greater than 50 K.ms. from the subscriber, the internet access call from ISDN subscriber are charged from premium rate as per the direction from the circle office. The D.D. had directed that the discrepancy has to be sorted out immediately and compliance to be sent to the office immediately. It is further stated that after receipt of the said clarification, the bill amount for the month of May had been revised and the petitioner had been asked to pay an amount of Rs.36,749/-. As the respondents are charging the bill at 2 minutes pulse rate and not at 3 minutes pulse rate, the petitioner demanded the respondents 1 to 3 to refund the excess amount that had been collected from the petitioner. In spite of making representations, as the respondents 1 to 3 had not refunded the amount the petitioner sought for reference to the Arbitrator as provided under Section 7(b) of the Indian Telegraph Act. As there was no reference to the Arbitrator, the petitioner was constrained to file W.P.No.3271/2004 in this Court and this Court by an order dated 25-2-2004 was pleased to direct the respondents to refer the dispute with due regard to excess billing to the arbitrator within a period of four weeks from the date of receipt of a copy of the order. Thereafter the matter had been referred to an Arbitrator and the 4th respondent was appointed as the Arbitrator. It is also further stated that before the Arbitrator the petitioner filed claim statement stating that demanding an amount of Rs.18,100/- towards deposit in stead of Rs.4500/- is illegal and further the billing from the month of March 2001 was to be charged at 3 minutes pulse rate and on the other hand the respondents 1 to 3 had collected at 2 minutes pulse rate and hence the petitioner is entitled for refund of the excess amount that had been collected. In support of the said case of the petitioner, the petitioner had enclosed the letters that had been received from the D.D.G. (Internet) and other papers and the same were marked as P.E. 1 to 4 and the respondents 1 to 3 in defence had marked documents R.E. 1 to 12. The Arbitrator after considering the claim statement came to the conclusion that the amount that had been taken as deposit is correct. The Arbitrator further came to the conclusion that the internet access charges which had been charged by the Department is correct. For arriving at a conclusion, the Arbitrator had relied on letter dated 9-11-2000 stating that the ISDN access is still allowed on local basis only from the SDCA/adjacent SDCA in which internet node with ISDN access is available for any other node and the calls will be charged as per the charging plan. The Arbitrator further held that the petitioner had admitted that the BSNL Kurnool had implemented the rulings correctly and hence rejected the claim of the petitioner. It is also further stated that the reasoning of the Arbitrator for rejecting the claim of the petitioner for refund of the excess amounts that had been collected from March 2001 is not legal and correct. The Arbitrator failed to see that the letter that had been written by the D.D.G. (Internet) dated 15-10-2003 was on the basis of the specific complaint that had been given by the petitioner and the explanation submitted by the circle office. It is also further stated that the letter that had been written does not state that the same is applicable only for the month of May and on the other hand it is clear that the tariff for internet access from the nearest node by dialing 172 xxx is charged as per the local calls pulse. Further it is stated that the said letter was treated as an order by the respondents 2 and 3 and had revised the bills. The burden of proof lies on the respondents to show from which date the said procedure had been adopted and in the absence of the same, the Arbitrator ought to have held that the Department is liable to charge only at 3 minutes pulse rate and not 2 minutes pulse as had been done in the case of the petitioner and hence the reasoning of the Arbitrator in refusing to award the claim in respect of refund of the amount is based on no material and the decision of the Arbitrator for arriving at the said conclusion is not legal and valid. It is also further stated that the Arbitrator failed to see that the Department had all the documents in custody and the burden of proving that the amount charged from the petitioner is in consonance with the policy of the Department. Further it is stated that no material had been placed by the Department to justify their stand. In the absence of the same, the Arbitrator ought to have accepted that the calls made between 1-5-2003 to 31-5-2003 were subsequently revised on the clarification received by the respondents and the finding that the claim of the petitioner is proved wrong is wholly untenable. Further, the Arbitrator failed to see that the whole claim of the petitioner is on the ground that the billing was not done from inspection of 3 minute pulse rate and was charged for 2 minute pulse rate and was not restricted for the particular period and hence entitled for excess amount paid. The Arbitrator without taking the said factor into consideration had erroneously passed the impugned order and hence the award of the Arbitrator is not legal and valid. In such circumstances, the writ petitioner approached this Court by filing the present Writ Petition. 6. This Court issued rule nisi on 2-9-2005. 7. Respondents 1 to 3 filed counter affidavit and the counter affidavit was sworn to by the Assistant General Manager (Legal) in the office of the Chief General Manager, BSNL, Hyderabad. Several averments had been specifically denied. However, it is admitted that the petitioner applied for ISDN connection on payment of Rs.18,100/- towards deposit and he was given the connection in the month of March 2001 with the Indicator No.Adoni-222900 and the same was being used for Internet access with 2 minutes per unit pulse rate. It is further stated that the allegation of the petitioner that he received a bill for Rs.53,257/- for the period from 1-5-2003 to 31-5-2003 is not correct. It relates to the bills dated 7-3- 2003, 7-6-2003, 7-7-2003 and 7-8-2003. The revised bill was issued for an amount of Rs.36,749/- as per the orders of the Circle office vide Lt.No.CMGT Endt No.TA/NS/Internet/Vol-VIII dated 20-10-2003 and Lt.No.TA/NS/Internet/Vol-II/2003-04 dated 23-10-2003 of Sri T.Syam Sunder, AGM (NS) to implement the BSNL directions given in D.O.No.59-07/03 dated 15-10-2003 of Sri R.N. Padukone, D.D.G. (Internet), New Delhi. The Arbitrator relied on the letter of BSNL HQ Lr.No.22-8/97- PHT dated 9-11-2000 wherein it is clarified that ISDN access is to be allowed on local basis only from the SDCA to adjacent SDCA in which Internet Node with ISDN access is available. In the instant case, Kurnool is not adjacent SDCA to Adoni. The petitioner paid the revised bill amount of Rs.36,749/- on 13-4-2004 and the ISDN connection was reconnected immediately. The petitioner was also informed by letter dated 17-6-2003 that the Internet through ISDN is a premium service as per the policy of the BSNL and STD charges are applicable or above 50 K.Ms. Node. Accordingly, the petitioner was being charged applicable tariff STD charges between Adoni and Kurnool for Internet through ISDN service right from the date of installation. It is also further stated that before the Arbitrator, the petitioner contended that the deposit of Rs.18,100/- paid by him in stead of Rs.4500/- is illegal and the said contention is not correct. The charges collected from the petitioner while issuing demand note dated 23-1-2001 for provision for ISDN connection are as hereunder : Registration Fees Rs.3,000-00 Advance Rental Deposit (ARD) Rs.9,000-00 Monthly Advance Rental Rs.1,000-00 Security Deposit Rs.4,500-00 Installation charges Rs. 600-00 ---------------- Rs.18,100-00 ========= The aforesaid amount was collected as per the Departmental Rules only and no excess amount was collected from the petitioner. The allegation of the petitioner that the deposit is only Rs.4500/- is not correct. The said amount is only security deposit and the same is refundable at the time of finalisation of accounts. It is also further stated that the allegation of the petitioner that the Arbitrator relied on the letter dated 9-11-2000 and did not see the letter dated 15-10-2003 of D.D.G. (Internet), New Delhi is not correct. In the said D.O. letter, the date from which the new Rules are applicable is not mentioned. In letter No.TA/NS/Internet Complaints/2003-04 dated 9-2- 2004 addressed to the AGM (Legal), office of CGMT, Sri T.Syam Sunder, AGM (NS) office of CGMT, HD informed that the new BSNL Rules came into force from 18-8- 2003. Whereas the ISDN connection of the petitioner was disconnected on 21-7-2003 itself, earlier than the date the rules came into force under DNPD and hence the question of refund does not arise. Since the new Rules are applicable w.e.f 13-8-2003, all the Internet calls are charged with 3 minutes pulse rate after 13-8-2003. Thus, there are no merits in the case. 8. In the light of the stand taken in the affidavit filed in support of the Writ Petition and also the specific stand taken in the counter affidavit, especially in paras (c) and (d) of the counter affidavit, this Court is thoroughly satisfied that the award made by the 4th respondent impugned in the present Writ Petition does not suffer from any illegality whatsoever. 9. Accordingly, the Writ Petition shall stand dismissed. No costs. _________________ Justice P.S.Narayana Date : 24-1-2008 AM