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2005 DIGILAW 439 (GAU)

Raj Kumar Bajaj v. Union of India

2005-06-07

B.LAMARE, H.N.SARMA, I.A.ANSARI

body2005
JUDGMENT Iqbal Ahmed Ansari, J. 1. The petitioner, namely, Shri Raj Kumar Bajaj, was served with a Notice, dated 6-6-2000, issued by the respondents directing the petitioner to pay a sum of Rs. 46.680/-, which was claimed to be lying unpaid against phone No. UDL-24756 or else face disconnection of the petitioner's existing telephone No. UDL-24422. Terming the notice so served on him as arbitrary, illegal and unjust, the petitioner has approached this Court, with the present application made under Article 226 of the Constitution of India, seeking issuance of appropriate writ(s) or writs setting aside and quashing the said demand notice and the notice of disconnection. 2. The case of the writ petitioner is, in brief, thus : The petitioner is a proprietor of Shree Hanuman Rice Mill, Udalguri, Darrang, and has a telephone in the name of his proprietary concern, namely, Shree Hanuman Rice Mill, the telephone No. being 24422. The petitioner has been paying bills regularly in respect of his telephone No. 24422 aforementioned. The petitioner has been served with a notice, dated 6-6-2000, aforementioned asking him to make payment of the said amount of Rs. 46,660 allegedly lying outstanding in respect, of the telephone No. 24756, which stood in the name of Shree Hanuman Industries. Shree Hanuman Rice Mill and Shree Hanurnan Industries are two distinctly arid separate firms owned by two different persons and there is no business link between the two. As no bill/dues in respect of the petitioner's telephone is lying outstanding, the petitioner is not liable to pay the alleged outstanding dues of another subscriber; but unless the petitioner makes payment within 13-6-2000, as demanded, he faces the threat of disconnection of his telephone, which is impermissible under the law. 3. As no bill/dues in respect of the petitioner's telephone is lying outstanding, the petitioner is not liable to pay the alleged outstanding dues of another subscriber; but unless the petitioner makes payment within 13-6-2000, as demanded, he faces the threat of disconnection of his telephone, which is impermissible under the law. 3. When the matter came up for motion before the learned single Judge (Hon'ble J.N. Sarma, J.), the learned single Judge noticed that with regard to Rule 443 of the Indian Telegraph Rules, which governs the case of the parties, there is a decision of a Division Bench of this Court in Santokh Singh v. Divisional Engineer, Telephone, shillong AIR 1990 Gau 47 , wherein this Court has held that for the outstanding bill of a given telephone of a subscriber, another telephone of even the same subscriber cannot be disconnected, for, the power of disconnection is available under Rule 443 only in respect of the telephone, the bills of which have not been paid or have been lying outstanding. The learned single Judge also noticed that there is another decision rendered in Bhagwanji Devraj v. Union of India,. which lays down to the contrary as regards the scope and ambit of Rule 443, On noticing that there was a glaring contradiction between the two decisions aforementioned, the learned single Judge directed the matter to be laid before the Hon'ble the Chief Justice for constituting a larger Bench. Consequently, as directed by the Hon'ble the Chief Justice, the matter has been laid before this Full Bench. 4. We have heard Mr. S. K. Goswami, learned Counsel for the petitioner, and Mrs. N. D. Sharma, learned Additional Central Government Counsel, appearing on behalf of respondents. 5. Upon hearing the learned Counsel for the parties and on a careful perusal of the records, we notice that the decision in Bhagwanji Devraj (supra) is really a decision of Gujarat High Court and not of this High Court. The learned single Judge has treated the decision in Bhagwanji Devraj (supra) as a decision of this Court on account of perhaps, the reason that the decision stands recorded in GLR, which is not really the Gauhati Law Report, a monthly law journal published from Guwahati, but the Gujarat Law Report. There is, thus, truly speaking, no decision contrary to the decision given in Santokh Singh AIR 1990 Gau 47 (supra). 6. There is, thus, truly speaking, no decision contrary to the decision given in Santokh Singh AIR 1990 Gau 47 (supra). 6. However, considering the fact that the matter has been heard at some length, the issue involved is grave, for, there are, indeed, conflict decisions on the scope and ambit of Rule 443, we are of the view that we must resolve the controversy, namely, as to whether the telephone of a subscriber in respect of which no outstanding bill is pending can be disconnected for non-payment of the bill of some other telephone of the same subscriber. In other words, considering the gravity of the real issue raised in this writ petition and taking also into account the fact that the two conflicting views have been expressed by the Courts on the said issue, we are of the view that the matter needs to be resolved. We have accordingly heard the learned Counsel for the parties. 7. For answering the question posed above, it is imperative that the language of Rule 443 be carefully taken note of and analysed. We, therefore, quote Rule 443, which reads as follows: 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, or bills for charges in respect of calls (local and trunk) or phonograms or other dues from the subscriber are not duly paid by him, any telephone or telephones or any telex service rented by him may be disconnected without notice. The telephone or telephones or telex so disconnected may, if the Telegraph Authority thinks fit, be restored, if the defaulting subscriber pays the outstanding dues and the reconnection fee together with the rental for such portion of the intervening period (during which the telephone or telex remains disconnected) as may be prescribed by the Telegraph Authority from time to time. The subscriber shall pay all the above charges within such period as may be prescribed by the Telegraph Authority from time to time. 8. The subscriber shall pay all the above charges within such period as may be prescribed by the Telegraph Authority from time to time. 8. Dealing with the scope and ambit of Rule 443, the Division Bench of this Court, in paragraph 29 of Santokh Singh AIR 1990 Gau 47 (supra), has laid down as follows (para 29): Another important point for consideration is whether in the event of any dispute regarding payment of bill in connection with a particular telephone, any other telephone rented to the same subscriber may be disconnected in regard to which there is no dispute or default in payment. The department claims such a right under Rule 443 of the Rules, which has been extracted above. We have carefully read the said rule. We are of the opinion that it cannot be interpreted to vest with the authorities the power to disconnect any other telephone working in the name of the same subscriber either of the same premises or elsewhere on the ground of default of payment of bill in respect of one of his telephones. This power is confined only to the particular telephone in respect of which there is default in payment and not to other telephones. Such a drastic power cannot be granted to the Telephone department by inference. If at all it is to be given it has to be given in clear and unambiguous terms. Then also the question will arise whether it is reasonable or not. We do not propose to make any comment thereon. Suffice it to say that Rule 443 of the Rules as it presently stands, cannot be interpreted to authorize the Telecom Department to disconnect any telephone other than the one, which is subject matter of dispute as, in our opinion, such action will be highly atrocious. The Department cannot coerce the subscriber to make the disputed payment by such means, it must act in accordance with law and, if necessary, file a suit for recovery of the arrears. 9. The Department cannot coerce the subscriber to make the disputed payment by such means, it must act in accordance with law and, if necessary, file a suit for recovery of the arrears. 9. As against the view expressed in Saritokh Singh AIR 1990 Gau 47 (supra), the Court In Bhagwanji Devraj (supra) held as follows: It is clear from Rule 443 of the Telegraph Rules, 1951, that the telephone or telephones rented by a subscriber can be disconnected, if he is in default of payment of charges in respect of one of his telephones, where he has more than one telephone. A person, who has more than one telephone, must pay the charges, which become due in respect of all the telephones in his name. If he commits default I (sic in) payment of charges in respect of one telephone, he cannot be allowed to escape with impunity and to retain his other telephone connections. The power of disconnecting one or more telephone lines of a subscriber can be exercised as long as the default continues and as long as there are telephone lines, installed for the benefit of the defaulting subscriber, available for disconnection. 10. On a microscopic reading of Rule 443, what attracts our attention, most prominently, is the use of the words, "any telephone or telephones ... may be disconnected without notice", occurring in Rule 443. While reading Rule 443, if the attention is kept focused on the emphasized words used in the Rule 443, namely, "any telephone or telephones ... may be disconnected without notice", it becomes transparent that if a subscriber has more than one telephone in his name, then, for non-payment of dues of any of such telephones, any telephone or telephones of such a subscriber can be disconnected and it is not necessary that it is only that particular telephone in respect of which payment of the dues has not been made, which can be disconnected. When the language of Rule 443 is plain, no interpretation against the plain meaning of Rule 443 can be attributed to, or imported into, the language of Rule 443, particularly, when the validity of Rule 443 was neither, in question, in Santokh Singh AIR 1990 Gau 47 (supra) nor is it, in question, in the present writ petition. 11. When the language of Rule 443 is plain, no interpretation against the plain meaning of Rule 443 can be attributed to, or imported into, the language of Rule 443, particularly, when the validity of Rule 443 was neither, in question, in Santokh Singh AIR 1990 Gau 47 (supra) nor is it, in question, in the present writ petition. 11. Thus, Rule 443 clearly casts a duty on a subscriber, who, has, as subscriber, more than one telephone in his name to pay the charges in respect of all the phones of which he is the subscriber, if he commits default in making payment of the charges' in respect of one of his telephones, he cannot be allowed to escape with impunity and retain his other telephone connection. In such a situation, the service provider, in the light of the language used in Rule 443, would be competent to disconnect not only that 'telephone' in respect of which dues are unpaid, but also the 'telephone' in respect of which no dues are pending. To put it differently, a person, who has more than one telephone, must pay the charges, which become due in respect of all the telephones standing in his or her name as subscriber. If he commits default in payment of the dues in respect of one of his telephones, his other telephone or telephones may be disconnected for non-payment of the dues of one of his telephones. 12. In short, a careful and microscopic reading of Rule 443 shows that in respect of the unpaid dues of a telephone subscriber, any of his telephone or telephones may be disconnected. 13. Because of what have been pointed out above, we are unable to persuade ourselves to subscribe to, and agree with, the law laid down in Santosk Singh: AIR 1990 Gau 47 (supra). We hold that when a person has more than one telephone as a subscriber and if such a subscriber fails to make payment in respect of one of such telephones, his other telephone or telephones can be disconnected by the service provider for non-payment of the bills/dues of one of the telephone of such a subscriber. The decision, therefore, laying down the law to the contrary in Santokh Singh AIR 1990 Gau 47 (supra) shall accordingly stand overruled. 14. The reference shall stand answered as held hereinabove. 15. The decision, therefore, laying down the law to the contrary in Santokh Singh AIR 1990 Gau 47 (supra) shall accordingly stand overruled. 14. The reference shall stand answered as held hereinabove. 15. Let the matter, now be laid before the learned single Bench for decision in the writ petition in the light of the position of law as clarified hereinabove.