Karnataka High Court
Kanoria Fleurs And Naturales Limited, ... vs The General Manager, Department Of ... on 4 August, 2000
Equivalent citations: ILR2000KAR3222, 2000(5)KARLJ1
Author: R. Gururajan
Bench: Ashok Bhan, R. Gururajan
JUDGMENT R. Gururajan, J.
1. This appeal is filed by appellant aggrieved by the order of dismissal passed in Writ Petition Nos. 5516 and 5523 of 1998, dated 25-8-1999 on the following facts.
2. Facts: Appellant (petitioner) is a Company engaged in export business of flowers. It has subscribed to two telephones bearing Nos. 3312372 and 3344920. The respondents disconnected the telephone No. 3312372 on the ground of non-settlement of bills by another Company by name M/s. Bangalore Pesticides Limited. In addition respondents have also disconnected other telephone bearing No. 3344920. Aggrieved by the disconnections of these two telephones petitioner filed writ petitions in this Court in W.P. Nos. 5516 and 5523 of 1998.
3. Respondents had filed a detailed objection before the Single Judge.
4. Learned Single Judge in the impugned order has dismissed the writ petitions on the ground of withholding the required information and on the ground of the petitioner and its sister concerns having a bad track of record in the matter of settlement of bills.
5. It is this order that is challenged before us.
6. We have heard the Counsel appearing on either side.
7. Learned Counsel for the appellant took us through the pleadings to contend that the learned Single Judge has committed an error in failing to appreciate properly Rule 443 in the matter of disconnection. He invited our attention to the counter filed by the appellant to the statement of objection in which he has given details between the petitioner and the M/s. Bangalore Pesticides. He contends that there is no suppression of material facts as held by the learned Single Judge. Counsel also relies on two judgments in Hotel Bheema v Telecom District Engineer and Another and in Indravadan Pranlal Shah v General Manager, Ahmedabad Telephone District, Kharpur, Ahmedabad and Another .
8. Per contra the Counsel for the Department contend that the Department was justified in its disconnection in terms of the objection statement filed before the Single Judge. He wants us to dismiss the appeal filed by the appellant.
9. After hearing we are of the view that the whole case depend upon the power of disconnection by the respondent. Rule 443 of the Indian Telegraphic Rules provide for default of payment and disconnection of a telephone without notice. The said rule reads as under:
"443. Default of payment.--If, on or before the due date, the rent or other charges in respect of the telephone service provided are not paid by the subscriber in accordance with these rules, of bills for charges in respect of calls (Local and Trunk) of phonograms or other dues from the subscriber are not duly paid by him, any telephone or telephones or the telex service rented by him may be disconnected without notice ....".
(emphasis supplied)
10. A reading of the said rule would show that a power of disconnection is available in the event of default in respect of telephone services provided to subscriber in accordance with the rules. The power of disconnection is only with reference to failure on the part of subscriber. Unless the department shows that a subscriber to a telephone has failed to make the payment the telephones cannot be disconnected without notice.
(emphasis supplied)
11. In the case on hand we have to find out as to whether the Bangalore Pesticides can be termed as a subscriber of these two telephones owned by the present appellant. In the case on hand unfortunately no notice as such was issued to this appellant. On the other hand we find in Ex. R-l a letter addressed by the Department to M/s. Bangalore Pesticides for making payments. In the said letter a reference is made to telephone No. 3344920 owned by the present appellant. However, parties presumed that the disconnection of these telephones were on account of non-settlement of payment by M/s. Bangalore Pesticides Limited. In the case on hand we have to find out as to whether the Bangalore Pesticides can be termed as subscriber in terms of Rule 443. Unfortunately in the case on hand there are no proper pleadings in this regard. On the other hand we find that the respondents themselves say that one A.K. Kanoria is one of the Directors of M/s. Bangalore Pesticides and he has signed telephone application for telephone No. 3344920. The matter is being investigated and steps are taken to recover the dues and that it is not sure about relationship of the appellant with the Bangalore Pesticides. The matter is being investigated.
12. In these state of affairs we are of the view that the department ought to have issued a notice to find out factually as to whether M/s. Bangalore Pesticides can be equated to a subscriber in terms of the Rule 443 insofar as these two telephones are concerned. No such attempt is made. On the other hand they only mention in the counter-statement that M/s. Bangalore Pesticides was somehow got linked with this telephone resulting in disconnection. Before the Single Judge information was sought for with regard to M/s. Bangalore Pesticides vis-a-vis Mr. A.K. Kanoria. We find in the counter to the objections filed by the petitioner wherein the petitioner has given some details with regard to the various Companies in the said premises. Petitioner has also given details of the Bangalore Pesticides, Durga Enterprises, appellant-Company etc. In the circumstances it cannot be said that any information as such is withheld by the appellant and the dismissal of the petition on this ground according to us require our interference.
13. The learned Judge has also rejected the writ petition on the ground of the appellant and its sister concern having a bad track regarding the matter of payment of bills. We are of the view that the disconnection of a telephone is provided under Rule 443. Unless the department comes to a conclusion that the default is committed by the subscriber owning a telephone, the same cannot be disconnected without notice. As mentioned earlier whether the appellant and its sister concern can be clubbed and called as subscriber of these 2 telephones one has to find out the impact of Rule 443 of the Rules on the facts of the case.
14. We have already mentioned in detail about the impact of Rule 443 of the Rules. This rule has been interpreted by various High Courts on same or similar circumstances.
15. A Division Bench of the Gujarat High Court in the case of Indrauadan Pranlal Shah, supra, after noticing Rule 443 has ruled as under:
"This question was considered in the case of Bhagwanji Devraj v Union of India, by the learned Single Judge. There also, the contention was that one Shakti Oil Mill, a partnership firm was in default of payment of the telephone charges and it was contended that the firm was a distinct entity from partners constituting the firm and the personal telephone of a partner could not have been disconnected on account of the default committed by the partnership firm. The learned Single Judge considered the nature and character of a partnership firm and relied on the judgment of the Supreme Court in the case of Mandalsa Devi v M. Ramnarain Private Limited, wherein it was laid down that the partnership firm has a limited status for the purpose of Order 33 of the Civil Procedure Code and that legal fiction created by Order 30 cannot be carried too far. A partnership firm has no legal personality and persons who are individually partners and collectively called a firm and therefore the proceeding against a firm is really a proceeding against all the partners of the firm and if decree is passed in such a suit, it is in effect against all the partners though, in form, it may be against the firm only. Thus, it was held that the firm and its partners are interchangeable terms and therefore if a partnership firm incurs any liability, it is the liability of all the partners. Section 25 of the Indian Partnership Act, 1932 provides that every partner is liable, jointly with all the other partners and also severally for all acts of the firm done while he is a partner. Thus, the liability of the partnership firm is a joint and several liability of each and every partner. Applying this principle, the learned Single Judge held that the telephone rented by the partnership firm was really rented by all its partners and therefore the liability for payment was of each partner jointly and severally and the same could have been recovered from any partners. It is thus clear that when a telephone subscriber is a partnership firm, really speaking, all the persons constituting such firm, its partners are the owners of the telephone and subscribers and each one of them has rights and liabilities of a subscriber. Therefore, when such partner subscriber is in default in payment of telephone dues because the partnership firm has failed to pay those bills Rule 443 is attracted and any telephone rented to such subscriber-partner even in his individual capacity is liable to disconnection. We are in complete agreement with the learned Single Judge in this regard. The learned Counsel for the petitioner could not distinguish or indicate as to how this judgment is erroneous".
16. In y. Pridhvi Kumar v General Manager, Telecom District, Hyderabad , it was held that disconnection of telephone of son would be arbitrary and unreasonable and violative of Article 14 of the Constitution of India. The Delhi High Court in Smt. Krishan Kumar v Delhi Mahanagar Telephone Nigam Limited , held the term "subscriber" means a person or firm, who have subscribed and it would not include the relations, who have independent connections and whose phone the defaulter may be using and therefore, DMT Nigam cannot demand dues (or give threat of disconnection) to relations of defaulter.
17. The Division Bench of Orissa High Court in the case of Kailash Prasad Modi v Chief General Manager, Orissa Telecommunication , rules as under while considering Rule 443 of the Indian Telegraph Rules:
"It is fairly conceded by Mr. Panda, learned Counsel appearing for the opposite parties that the only power in the Department for disconnection of telephone is as found under Rule 443 of the Indian Telegraph Rules. That rule inter alia states, so far as relevant, that in the event of default on account of one telephone, other telephones of the subscriber of the defaulting telephone may be disconnected. The liability is of a son to have his telephone disconnected in the event of default in respect of a telephone belonging to his father has already been negatived by this Court by judgment in Om Prakash Sharma v T.D.M. delivered on 5-4-1993. In another case i.e., Panchanan Misra v Union of India, decided on 15-4-1993, the liability of an employee of a company as regards default in respect of company's telephone was also negatived. 'Subscriber' has been defined in Rule 2(pp) of the same rules as to mean a person to whom a telephone service has been provided by installation under the rules or under an agreement. Admittedly, as per the stand revealed by the opposite party Department in the counter-affidavit, the subscriber in respect of telephone No. CK 21526 was a private limited company M/s. R.L. Modi and Sons Limited. The petitioner has filed an affidavit today furnishing copy of the complete resolution of M/s. R.L. Modi and Sons Private Limited of 3rd March, 1980 as Annexure-8 showing that since, that date the petitioner has resigned from the directorship of the company and to have ceased to be a director. The petitioner as such has no relationship with the company after 3rd March, 1980 and therefore could not have been saddled with making good the default in respect of the company's telephone No. CK 21526. Apart from it, the company is a juristic person having a separate legal entity and when it is the subscriber, its liability is not automatically transferred to the directors. In a private limited company, the liabilities of the directors are limited and as such they being not the subscribers of the company's telephone, a director's personal telephone is not to be disconnected by applying Rule 443 on account of any default in respect of the company's telephone".
18. In Dr. B.V. Manek v Mahanagar Telephone Nigam Limited, after noticing judgments of Gujarat and Gauhati High Courts, the Bombay High Court ruled as under:
"On a plain reading of the definition of "subscriber", it is seen that a subscriber is a person, who has subscribed for a particular telephone whether it be an individual or a partnership firm or a corporate body. In the present case, the telephone's dues are in respect of telephone No. 5603314, which was admittedly subscribed by V.N. Manek, the petitioner cannot be described to be the subscriber of the said telephone and the said telephone alone can be disconnected in the event of the subscriber not having paid the dues to the Department. Even the Madras High Court in S.M. Ayua's case, supra, observed that the words "rented by him" in Rule 443 refers to the subscriber only. In a similar situation the Andhra Pradesh High Court in Y. Pridhvi Kumar's case, supra, held that disconnection of telephone of son would be arbitrary and unreasonable and violative of Article 14 of the Constitution. Similarly, the Delhi High Court in Smt. Krishan Kumar's case, supra, held that the term "subscriber" means a person or firm, who have subscribed and it would not include the relations, who have independent connections and whose phone the defaulter may he using and, therefore, DMT Nigam cannot demand dues (or give threat of disconnection) to relations of defaulter".
19. The learned Single Judge of this Court in the case of Hotel Bheema, supra, after noticing Rule 443 has to hold as under:
"5. On a plain reading of Rule 443 of the Rules, it is clear that the said rule authorises or empowers the department to disconnect the telephone of the subscriber only, and not of any other person for the arrears amount, if the said subscriber fails to pay the rent or other charges in respect of the services provided within the time prescribed in accordance with the rules. Therefore, under Rule 443 of the Rules, if the amount due by the subscriber in respect of the rent or other charges towards the telephone services provided are not paid by the subscriber in accordance with the rules, any telephone or telephones or any telex service rented by him could be disconnected by the department. Rule 443 of the Rules in my opinion, does not empower the respondents to disconnect the telephones of the petitioner in respect of the arrears of telephones rent due in respect of telephone bearing No. STD PT 27198 in respect of which one Aslam was the subscriber. Therefore, I am of the view that even for the misuse of the telephone bearing No. 27198 in respect of which one Aslam is the subscriber, does not permit the respondents to call upon the petitioner to pay the amount claimed in the order at Annexure-H and Demand Note at Annexure-G.
6. The view I have taken above is also supported by the decision of the Bombay High Court in the case of Dr. B.V. Manek, supra, relied upon by Sri Ram Bhat, the learned Counsel for the petitioner.
7. In the said decision at para 5, the Bombay High Court has taken the view that it is not permissible for the department to disconnect the telephone of a relation or an associate of a subscriber for the default committed by such subscriber.
8. I am unable to accept the submissions of the learned Central Government Standing Counsel Sri Ashok Harnhalli that since the telephone No. STD PT 27198 has been misused by the petitioner, the authorities are entitled to disconnect the telephone of the petitioner. It is only Rule 443 of the Rules which authorises the respondents to disconnect the telephone for the amount due by the subscriber. No other rules have been placed or brought to my notice by the Senior Government Standing Counsel, which empowers the respondents" to disconnect the telephone of the petitioner for the arrears of the amount due in respect of the telephone belonging to some other subscriber. If the telephone bearing No. STD PT 27198 was being misused, it is for the authorities to take steps on that behalf, in accordance with law".
No judgments of Supreme Court is brought to our notice by the Counsels.
20. In the light of these various judgments referred to above we are of the view that a duty is cast on the department to find out as to whether the person whose telephone is disconnected is a subscriber within the meaning of Rule 443. A finding as to whether a party is a subscriber or not is a finding of fact and it has to be gathered by the department after collecting details before disconnection. In the present case the department itself says that they are still investigating the matter. We are of the view that the appellant has made out a case for reconnection in the absence of any finding as to whether M/s. Bangalore Pesticides is also a subscriber of these two telephones. In the circumstances we deem it proper to direct the department to hold an enquiry and find out the facts and details as to whether M/s. Bangalore Pesticides can be termed as a subscriber in terms of these two telephones. If on facts the department comes to a conclusion the Bangalore Pesticides is a subscriber it is needless for us to say that the department was justified in invoking its power under Rule 443 of the Rules. In our view the learned Single Judge has committed an error in dismissing the writ petition solely on the ground of past history of M/s. Bangalore Pesticides Limited and the appellant without giving a finding with regard to the term "subscriber" as required under Rule 443. Therefore, we deem it proper to set aside the order of learned Single Judge with a direction to the department as mentioned earlier to give a finding with regard to status of M/s. Bangalore Pesticides Limited as "subscriber" for these telephones and thereafter proceed to pass orders in accordance with law and in the light of judgment of this Court.
21. Insofar as telephone No. 3312372 is concerned the pleadings reveal default of payment by the subscriber and denial of payment. Without going into this controversy, we deem it proper to direct the appellant/petitioner to pay all the arrears in respect of this telephone within two weeks from today, in which case the said telephone would be reconnected by the department with liberty to invoke Rule 443 if there is any default of payment.
22. We cannot but observe that in these days of quick communication the telephone facility has become a necessity rather than luxury as it was considered at one point of time. Judicial notice can be taken that use of telephone is an effective communication in the modern era. The disconnection of a telephone without appreciating the material on record has to be deprecated.
23. With these observations we pass the following order:
Writ appeal is accepted. The order of the learned Single Judge is set aside. A direction is issued to the respondents to reconnect the telephone No. 3312372 within 2 weeks subject to the petitioner clearing all the arrears in respect of this telephone with liberty as mentioned in our order.
24. A further direction is issued to the respondents to complete the enquiry with regard to the status of M/s. Bangalore Pesticides Limited being a "subscriber" in respect of the telephone No. 3344920 within 2 months. If a finding is given in favour of the petitioner/appellant it is needless for us to say the telephone is to be reconnected forthwith. While deciding the status of "subscriber" the department may keep in view the various judgments referred to in this order in addition to our finding while giving a finding with regard to the status of M/s. Bangalore Pesticides Limited as "subscriber".
25. Writ appeals are accepted. The impugned order is set aside with these directions. Parties are to bear their respective costs.