ARUN PAPER PRODUCTS, AHMEDABAD v. UNION OF INDIA — 1988 DIGILAW 123 (GUJ)

P. R. GOKULAKRISHNAN, J. ( 1 ) THIS is a typical case where a defaulter is able to invoke various principles of law for the purpose of getting a mandatory order to re-connect his disconnected telephone. The admitted facts are that the telephone which stands in the name of the appellant fell into arrears regarding the telephone charges and the said telephone was disconnected and subsequently the other telephone which is also in the name of the appellant was disconnected for the arrears that fell due in respect of the disconnection of the previous phone. The appellant herein came forward with the Special Civil Application praying for a writ of mandamus directing the respondents therein to re-connect telephone No. 877267 lying at A/1/1 Arun Products GIDC Vatva Ahmedabad stating that the action of disconnection and the intimation dated 11-2-1986 are clearly illegal mala fide erroneous and as such it has to be set aside. The learned single Judge of our High Court after issuing notice and getting the affidavit-in-reply on the C. A. filed on behalf of the Telephone Department dismissed the Special Civil Application. It is as against that order the present Letters Patent Appeal has been filed. ( 2 ) THE short facts of this case for the purpose of deciding the issues in this case are that the appellant got telephone connections for numbers 54146 and 877267. Telephone No. 54146 was first installed at No. 45 Kalyanbag Society in 1974. Telephone No. 877267 was installed at A/1/1 Arun Products GIDC Vatva Ahmedabad in the year 1971. It is the case of the appellant that the appellant along with his cousins and father was carrying on business jointly and the business came to be dissolved in 1983. It is the further case of the appellant that his cousin made a transfer application to transfer telephone No. 54146 in order to instal the same at No. 64 N. S. Market Ratan Pole Ahmedabad. 387876 is the present number for the phone originally installed viz. 54146. In as much as the arrears fell due in respect of this telephone which according to the appellant herein he is not responsible the Telephone Department not only disconnected the telephone No. 387876 but also telephone No. 877267 for. the alleged arrears of over Rs. 18 0 ( 3 ) MR. 54146. In as much as the arrears fell due in respect of this telephone which according to the appellant herein he is not responsible the Telephone Department not only disconnected the telephone No. 387876 but also telephone No. 877267 for. the alleged arrears of over Rs. 18 0 ( 3 ) MR. Gandhi the learned counsel appearing for the appellant submitted as his first contention that disconnection can be in respect of the phone where there is a default and not in respect of the phone where there is absolutely no arrears in respect of the telephone bills. In this connection we can usefully refer to Rule 443 which deals with default of payment. This rule is clear to the effect that any telephone or telephones or any telex service rented by the subscriber may be disconnected without notice if the bills for charges remained due from the subscriber in respect of the telephone or telephones. Reading the rule as such it is clear that the arrears that fell due in respect of one connection in the name of the subscriber may be a ground for dis-connecting the other connections also if the arrears remained unpaid. Mr. Gandhi next submitted that the Department should not have transferred the phone on the application made by his cousin to a different place and if it has done so any arrears that fell due in respect of the phone that has been transferred without the authority of the subscriber cannot be the liability of the subscriber himself. In this connection we can usefully refer to the transfer application made both by the appellant and his cousin which is dated 4-6-1987. This letter is addressed to the Commercial Officer (East) Ahmedabad Telephones Ahmedabad requesting the authority concerned to shift telephone No. 54146 to 64 N. S. Market Ratan Pole Ahmedabad. In this application dated 4-6-1987 we are able to see the signature of both the appellant and also his cousin. Mr. Gandhi states that this is a forgery. In the first place such a disputed question of fact cannot be looked into in a petition filed under Art. 226 of the Constitution. Secondly the authorities concerned have acted on the request made by the subscriber and there cannot be anything wrong in shifting the phone to the place mentioned in that letter. In the first place such a disputed question of fact cannot be looked into in a petition filed under Art. 226 of the Constitution. Secondly the authorities concerned have acted on the request made by the subscriber and there cannot be anything wrong in shifting the phone to the place mentioned in that letter. The fact remains that the telephone stands still in the name of the appellant herein and he has not taken any steps either to disown the service connection or write to the Department for the purpose of disconnecting the same on the ground that he is no more using the said phone. It is too much for a subscriber to say that he does not know what has happened to his phone which he got after making necessary deposits and which he was using for a number of years. Hence this contention of Mr. Gandhi cannot have any substance. ( 4 ) THE next contention urged by Mr. Gandhi is that in disconnecting phone No. 877267 for the arrears due for phone No. 387876 no notice was given and as such there is a failure of principles of natural justice. It is stated that the appellant came to know that there were dues for telephone No. 387876 only when the notice of disconnection dated 17-3-1988 which was received on 22-3-1988 was sent to the appellant herein. For the proposition that there is a failure of principles of natural justice Mr. Gandhi brought to our notice various rules. Rules framed under the Indian Telegraph Act 1885 According to the learned counsel Rule 421 clearly visualises issuance of a notice before any disconnection or any action is taken in respect of a service connection. Rule 421 reads as follows:"421 Disconnection of Telephones :- Where the Divisional Engineer is satisfied for reasons to be recorded in writing that it is necessary to do so he may after giving the subscriber a notice in writing for a period which shall not except in emergent eases be less than 7 days disconnect the telephone and in such ease the subscriber shall be entitled to refund of rent for the unexpired portion of the period for which the connection or service was given". Reading this rule it is clear that this is in respect of connections for B fixed term. Reading this rule it is clear that this is in respect of connections for B fixed term. If a disconnection is effected before the expiry of the said term notice is a must. This rule further states that the subscriber shall be entitled to refund of rent for the unexpired portion of the period for which the connection or service was given. Rule 443 is the provision under which the present disconnection has been effected. Even though as stated by Mr. Gandhi the desirability of giving a notice before such disconnection is made has to be read into the rule the facts of this case clearly reveal that there was a demand in respect of the arrears due. In the Civil Application filed before the learned single Judge the Department through its Accounts Officer one Mr. V. Swaminathan filed an affidavit-in-reply wherein it has been specifically stated that before the telephone was disconnected the appellants firm was requested to clear the outstanding of telephone No. 387896 amounting to Rs. 18 750 It is further stated that the statement of the appellant that his letter dated 14-4-1988 remained unreplied is also not correct. According to the Department the said letter was replied by the Accounts Officer vide letter dated 25-4-1988. To this averment made by the Department there is absolutely no answer by the appellant herein. Thus on the facts of the case it is clear that there was a demand before such disconnection was made. Thus in view of the said Rule 443 and the facts as aforesaid it can neither be said that a notice specially intimating the appellant that his phone will be disconnected is necessary before such phone is disconnected nor could there be any question based on principles of natural justice in the settings of the present case. To substantiate his case as regards the failure of natural Justice Mr. Gandhi cited the decision in the case of Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. reported in AIR 1979 SC 1628 . To substantiate his case as regards the failure of natural Justice Mr. Gandhi cited the decision in the case of Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. reported in AIR 1979 SC 1628 . We have absolutely no difficulty in appreciating the principles laid down in that decision except stating that in this case all the requirements necessary to give a notice to the appellant have been complied with and in any event Rule 443 is wide enough to disconnect the telephones in cases where there are admitted arrears and the telephone stands in the name of the person who is disputing the change of the place in respect of one phone. It is not a case where shifting of the tephone is questioned by the appellant. It is a case where the appellant in spite of the fact of continuing the telephone in his name comes forward with a contention that the bills are payable by a third party and not by the appellant since the third party was using the same in a different building. ( 5 ) MR. Gandhi also cited the decision in the case of P. S. Anthappan v. The District Manager Telephones reported in AIR 1980 Kerala 261 where a single Judge of the Kerala High Court dealt with Rule 421. We have already mentioned in paragraph supra the field in which Rule 421 will operate and as far as the present case is concerned the authorities concerned have invoked the provision of Rule 443. Reading Rule 443 it is very clear that a disconnection can be effected in respect of the arrears due for a different phone which is owned by the very same subscriber. Mr. Gandhi also cited the decision in the case of Union of India and Anr. v. Narayanbhai Keshavlal Patel reported in 1985 GLH 207 and the decision in the case of Union of India and Anr. v. Narayanbhai Keshavlal Patel Ors. reported in 1984 GLH 710 in order to press his points that the failure to issue a notice before disconnection will result in the failure of natural justice and as such disconnection has to be quashed. We are afraid we are not able to appreciate this argument in view of the facts of the case and also in view of the clear provision rule made in Rule 443 of the said Rules. We are afraid we are not able to appreciate this argument in view of the facts of the case and also in view of the clear provision rule made in Rule 443 of the said Rules. ( 6 ) IF the appellant wants to have any remedy against the fraudulent transfer or against the person who has misused the phone his relief lies somewhere else but that will not come in the way for the Department to invoke Rule 443 of the said Rules. ( 7 ) FOR all these reasons we do not find any substance in any of the contentions raised by the learned counsel appearing for the appellant herein and accordingly this Letters Patent Appeal is dismissed. Appeal summarily dismissed. .