DE ALWIS V. SRI LANKA TELECOM AND OTHERS

009-SLLR-SLLR-1995-2-DE-ALWIS-V.-SRI-LANKA-TELECOM-AND-OTHERS.pdf


38
Sri Lanka Law Reports
[1995] 2 Sri LR.
DE ALWIS
v.
SRI LANKA TELECOM AND OTHERS
COURT OF APPEAL.
ISMAIL, J.
C.A. NO. 969/92
JANUARY 30, 1995, FEBRUARY 13, 1995.
Prerogative Writs – Subscription to Telephone – Agreement with Director ofTelecommunication – Failure to settle bills – Facility disconnected – PrerogativeWrits.
Petitioner is the occupant and owner of premises in suit and the subscriber to theTelephone installed in the premises by the Director of Telecommunications.
The Petitioner was called upon to pay Rs. 103,594.80 in respect of foreign andlocal calls. The Bills showed that the Foreign calls were connected withoutOperator’s assistance, by way of International Direct dialling or by inserting coinswhich constituted payment and therefore were not collect calls.
As the bills were not settled, the Telephone was disconnected. The petitionersought a Writ of Certiorari to quash the said decision and a Mandamus on theDirector of Telecommunication to restore the facility. ,
Held:
The petitioner, though he had entered into an Agreement with the Postmaster-General to provide a Telephone facility, it is, not one entered in pursuance of astatutory duty to provide such facility. The decision sought to be quashed is onefounded purely on contract, the Telephone being disconnected for failure to settle
CA
De AMs v. Sri Lanka Telecom and Others (Ismail, J.)
39
the Bills, as provided for in the agreement. It is a decision taken within the contextof the contractual relationship and not in the exercise of powers of a PublicAuthority.
Case referred to:
1. Jayaweera v. Wijeratne 1985 -2 Sri L.R. 413.
APPLICATION for Writs of Certiorari/ Mandamus.
Faisz Mustapha P.C. with M. S. M. Suhaid for petitioner.
S. Sri Skandarajah SSC for the respondents.
Cur. adv. vult.
March 27, 1995.
ISMAIL, J.
The petitioner is the lawful occupier and owner of premises No.131, Gettuwana Road, Kurunegala and is the subscriber to thetelephone No. 23285 installed in the premises by the Department ofTelecommunications in about 1965.
The petitioner received a telephone bill (X1) on 3.7.87 for a sum ofRs. 20,202/- in respect of collect calls originated from New York. Heprotested at this bill by his letters dated 27.8.87 (X2) and 8.9.87 (X3)and denied that he accepted the four collect calls referred to therein.
The petitioner has referred to the following information provided inthe telephone directory in regard to collect calls. “A collect call isbooked with the request by the calling party to collect the chargesfrom the called subscriber in the destination country.
When connecting a call the operator will inquire from the callednumber who answers whether the party is accepting theresponsibility of the charge of the call. It will only be connected if thecharge is accepted.
Collect calls should not be made to call boxes and vice versa orshould not be received on call boxes or coin boxes.”
40
Sri Lanka Law Reports
[1995] 2 Sri L.R.
The Regional Engineer, Kurunegala replied by letter dated 5.3.88(X4) stating that according to the report received by him these collectcalls had originated from a call box in New York.
A few years later the petitioner received further bills for collectcalls for the period from 1.3.92 to 31.3.92 for a sum of Rs. 43,923/-,for 1.5.92 to 31.5.92 for a sum of Rs. 15,609/- and for 1.6.92 to
for a sum of Rs. 7,744/-. He received a final letter dated
(X8) calling upon him to pay a sum of Rs. 103,594.80 inrespect of local and foreign calls and was given notice that thetelephone would be disconnected if the bill was not settled within 10days. The telephone was disconnected on 2.12.92 as the petitionerdid not pay the sum of money due on the bills.
It was submitted that the bills show that these calls wereconnected directly without operator assistance by way ofinternational direct dialling by inserting coins which constitutedpayment. It was contended therefore that the allegation that collectcalls had been received by the petitioner on his telephone and thathe assured the operator that he would assume responsibility forpayment of the charges cannot be accepted. The further submissionwas made that the letter dated 17.11.92 produced marked X9annexed to the petition constituted a clear admission that the SriLanka Telecom is unaware of the identity of the caller and cannottrace the origin and is unable to resolve the inexplicable occurrenceof these calls. It was alleged that the respondents are forcing thepetitioner into accepting liability for the payment of the bills in respectof these calls.
The petitioner has sought a writ of Certiorari to quash the decisionto disconnect the telephone of the petitioner and for a writ ofMandamus to restore the telephone facilities to his residence.
Learned State Counsel has taken a preliminary objection to thisapplication on the ground that as there is a contractual relationshipbetween the parties that the remedy by way of either a writ ofCertiorari or Mandamus is not available to the petitioner.
The petitioner as the subscriber entered into an agreement withthe Postmaster General, acting on behalf of the Government,
CA
De Alwis v. Sri Lanka Telecom and Others (Ismail, J.)
41
on 22.4.69 (2R3) and agreed to hire a telephone line and instrumentsfor the purpose of telephone service subject to the provisions andconditions referred to therein and the Regulations made under theTelecommunications Ordinance, No. 50 of 1944. Clause 7 of the saidagreement provides that the Postmaster General may cause thesubscriber to be disconnected without notice, if the subscriptions orany of the additional fees and charges payable by the subscriber isdue and is not paid.
Learned Counsel for the petitioner submitted that the agreement toprovide a telephone line is one entered into in pursuance of astatutory duty to provide telephone facilities and this application doesnot fall within the province of pure contract but within the realm of thestatutory function of a statutory body. I am unable to accept thissubmission. The decision sought to be quashed is a decisionfounded purely on contract. The telephone was disconnected forfailure to settle the outstanding bills as provided for in the agreement.This was a decision taken wholly within the context of the contractualrelationship between the parties and not in the exercise of the powersof a public authority. Neither Certiorari nor Mandamus will lie toremedy the grievances arising from an alleged breach of contract.Jayaweera v. Wijeratne(1), I therefore uphold the preliminary objectionto this application.
Application dismissed.