TAMIL NADU STD/PCO FRANCHISEES WELFARE ASSO. vs DEPARTMENT OF TELECOMMUNICATIONS THROUGH THE CHIEF GENERAL MANAGER

IN a complaint filed, the complainants, namely The Tamil Nadu STD/PCO Franchisees Welfare Association and St. John Ambulance Association had charged the respondent, i.e. Department of Telecommunications with the adoption of and indulgence in restrictive trade practices within the meaning of Section 10(a)(i) read with Sections 2(o), 33(1), and 37 of the Monopolies Restrictive Trade Practices Act, 1969 (in brief MRTP Act).

IT is stated that the complainant No. 1 is a trade association comprising of 1,000 STD/ PCO operators who have been granted licences under the first proviso of Section 4 of the Indian Telegraph Act, 1885 to install, maintain and operate Public Call Offices (PCO) in their respective designated operation areas subject to the terms and conditions as contained in the respective licences. Complainant No. 2 is a voluntary organisation engaged, inter alia, in rescue and relief work at all emergencies rendering first aid for basic life support in cases of accidents, illness and in the transportation of sick and injured people. On 10.7.1999, the respondent by way of publication in the newspaper The Hindu'' issued a warning to the STDPT Franchisees that "Any PT PCO franchisee found using cellular phones in the PCOs, their PTs will be disconnected without any further notice". The advertisement so issued constitutes restrictive trade practice within the meaning of Section 2(o) of the Act imposing unjustified cost and restriction on the consumer on such services. IT is, therefore, prayed that the respondent be directed to withdraw the said warning contained in the advertisement published in the newspaper, namely ''The Hindu'' on 10.7.1999 and be restrained from implementing the said restrictive trade practice in not allowing members to use mobile telephones connection to provide STD/ ISD facilities to the customers. The complainant also filed an application under Section 12A of the Act for interim relief seeking relief that the respondent be restrained from giving effect to the impugned advertisement dated 10.7.1999 as well taking steps not to cancel or terminate the licence agreement with any STD/PCO operators on the alleged ground that the use of cellular, mobile telephone connections for public is illegal and violative of agreement.

On receipt of complaint, a Notice of Enquiry was ordered to be issued making it returnable on 25.1.2000 requiring the respondent to file its reply to the complaint application. A notice with respect to the interim relief application was also issued making it returnable on 11.11.1999 requiring the respondent to file a reply to the interim relief application. Liberty was also granted to the applicant to file a rejoinder to the reply, if so filed.

BOTH the parties have been heard through their respective Advocates on interim relief application. Mr. A.N. Haksar, Sr. Advocate with Mr. Thomas Joseph, Advocate on behalf of the complainants stated that there is no misuse of the land line telephone connections allotted to the licensees. The use of cellular phones is rather for public convenience. By not restraining the respondent the complainants would suffer irreparable loss and the balance of convenience being in their favour, the relief as sought need be granted. The respondent on the other hand through its Advocate Mr. R.B. Sinha stated that interpolating DOT line with that of cellular service is detrimental to the interest of the DOT. In doing so the land line belonging to the DOT running upto sub-office is interconnected with cellular service and STD connections are put through cellular service to the subscribers by an arrangement through an adapter. While cellular to cellular calls from one area to another are charged on local calls rate, DOT charges STD calls on periodic pulse basis, based on Zone concept. Therefore, the interim relief application filed under Section 12A needs to be dismissed. We have heard both the parties at length. Prima facie no case has been made out for grant of immediate relief in restraining the respondent from taking any action as contemplated in the notice of warning. The complainants have failed to show that the warning issued by the Deptt. of Telecommunications Tiruchi Telecom District is in violation of the terms and conditions of licence agreement and infringes the existing right of the complainants. It has also not been shown that the remedy sought in issue of general injunction for apprehension in respect of impending action on the part of the respondent is to prevent public wrong and not personal relief. Whether the restraint on the use of cellular phones for purpose other than personal constitutes restrictive trade practice is a matter of enquiry which has already been instituted against the respondent. Incidentally it may be mentioned that in para 4(o) of its reply to the complaint the respondent '' has stated that the disconnection of public telephones in Truchi was done primarily on the ground of misuse of the PTs, i.e. being operated by a person other than the original allottee.

AS stated earlier apparently there is no violation of the complainants'' legal right as given under the existing licence agreement. What is sought by the complainants is additional right/ facility for user of cellular phones for commercial and not personal purposes. Rather, the respondent is asking for protection of its legal rights as contained in licence agreement. Thus the balance of convenience is not tilted towards the complainants. The refusal of injunction as sought at this stage would in no way cause irreparable loss or damage to the complainants as in the notice the already existing facility is only denied in case there is any violation of the terms and conditions of the licence agreement. Section 7B of the Telecom Act to which our attention has been drawn also provides an alternative remedy in the regard. On perusal of the facts and the arguments as advanced on both sides, in our considered view, interim relief as sought is not allowable and as such application filed under Section 12A of the Act stands rejected. Application rejected.