Mahanagar Telephone Nigam Ltd. and Another vs Abdul Bari

P.K. Bhasin, J.—The present appeal is filed by the unsuccessful defendants in a suit for mandatory injunction filed by the respondent No. 1 herein which was decreed by the Additional District Judge vide judgment dated 16/09/1996.

The relevant facts for the purpose of present appeal may first be noticed. The respondent No. 1, who shall hereinafter be referred to as ''the plaintiff'', was the subscriber of two telephone connections provided by Mahanagar Telephone Nigam Ltd.(MTNL), the appellant No. 1 herein, which shall hereinafter be referred to as the ''defendant''. One of the two telephones with No. 2937162 was installed at the place of business of the plaintiff which was premises No. 511/1/3, Katra Ishwar Bhawan, Khari Baoli, Delhi and the other connection with telephone No. 6469158 was installed at his residence in Greater Kailash, New Delhi. The plaintiff''s telephone at Khari Baoli was disconnected on 08/01/96 for non-payment of charges with respect to the connection installed at his residence at Greater Kailash. The plaintiff asked the defendants to restore the telephone connection at his place of business but that was not done and then he filed a suit for mandatory injunction against the MTNL for directing it to restore the telephone connection at the Khari Baoli premises on the ground that the connection could not be disconnected because of non-payment of the charges of the connection at his residence. It was also claimed that there was in any case a dispute regarding the charges in respect of the connection at the residence of the plaintiff and that dispute had been referred for statutory arbitration. It was also claimed that no show-cause notice had been given to the plaintiff by the defendants before disconnecting telephone connection at his place of business nor any disconnection order served on him. Union of India, appellant No. 2 herein, was also impleaded in the suit as defendant No. 2.

The suit was contested by the defendants and in their joint written statement many objections were raised but primarily the suit was resisted on the ground that their action in disconnecting the telephone connection at the plaintiff''s business place due to non-payment of telephone charges in respect of the telephone connection at his residence was fully justified. Reliance was placed on Rule 443 of the Indian Telegraph Rules, 1951 which according to the defendants empowered them to disconnect a telephone connection, and that too without any notice, in the name of a subscriber in case of non-payment of dues in respect of other connection which also the same subscriber may be having in his name. On merits, it was pleaded on behalf by the defendants that the telephone of the plaintiff installed at his business premises had been disconnected for non- payment of the telephone charges in respect of the other telephone connection which he had at his residence at Greater Kailash.

From the pleadings of the parties the trial Court framed the following issues:

Whether the defendant is empowered to disconnect one telephone of the subscriber for the dues of other telephone of the same subscriber? OPD

Whether the plaintiff is entitled to relief of mandatory injunction as claimed? OPP

Relief.

After framing of these issues the case was fixed for defendants'' evidence but on the date fixed for evidence the defendants were proceeded against ex parte and the case was adjourned for final arguments by the trial Judge. No evidence was adduced by the plaintiff as well. After hearing the counsel for the plaintiff and the defendants also who had appeared on the date of the final arguments, learned trial Judge vide impugned judgment decreed the suit of the plaintiff and directed the defendants to restore the telephone connection at the plaintiff''s residence. The learned trial Judge in his judgment dated 16/09/1996 relied upon a judgment of Gauhati High Court reported as AIR 1990 Gauhati 47 and came to the conclusion that even if the telephone department is empowered to disconnect a telephone of the subscriber in respect of which there are no dues outstanding but there are outstanding dues in respect of some other telephone connection in the name of same subscriber, the same cannot be done without serving the subscriber with a notice to that effect and that such a notice should not be conveyed through telephone but should be conveyed in writing which the defendants did not even claim to have done in the present case. In any case, the Judge also observed, since the dispute in respect of the dues of residential phone of the plaintiff was the subject matter of pending arbitration proceedings between the parties, the residential phone could not be disconnected till the conclusion those proceedings.

Feeling aggrieved by the decision of the trial Court the defendants filed this appeal questioning the correctness thereof. The respondent did not enter appearance in the appeal despite service of notice of the appeal by affixation and so I heard only the counsel for the appellants- defendants, Shri V.K. Rao.

Mr. Rao basically relied upon a decision of the Supreme Court in Surjit Singh Vs. Mahanagar Telephone Nigam Ltd., wherein also Rule 443 of the Indian Telegraph Rules came to be examined and according to Mr. Rao this judgment impliedly overruled the judgment of Gauhati High Court Santokh Singh Vs. Divisional Engineer, Telephones, Shillong and Others, which has been relied upon by the learned trial Judge in the present case while decreeing the plaintiff''s suit. One judgment of a Division Bench of this Court in H.C. Raghubir Vs. Union of India and Others, was also cited by the learned Counsel wherein the challenge to the validity of Rule 443 was repelled and it was also held that when Rule 443 is invoked no show-cause notice is required to be given to the defaulting subscriber before disconnection of his telephone line. During the course of hearing of the appeal I was also informed by Mr. Rao that the arbitration proceedings in respect of the dues of the plaintiff''s residential telephone connection had finally been decided against the plaintiff although it was argued that even during the pendency of those proceedings MTNL could have legally disconnected the telephone connection at the business premises of the plaintiff because of non-payment of the dues of his residential connection.

The entire controversy centres around Rule 443 of the Indian Telegraph Rules. This Rule reads like this:

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 of 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 the 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 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.

As noticed already, this Rule had come up for consideration before the Supreme Court in Surjit Singh''s case (supra), which was an appeal against a decision of a Division Bench of this Court wherein it had been held that MTNL could disconnect a telephone line in the name of the husband in case of non-payment of another telephone connection in the name of the wife. The Supreme Court in appeal filed by the affected subscriber (husband) held that the MTNL can disconnect the telephone connection of a subscriber in case of non-payment of telephone bill by any of his relatives who is economically dependent on that subscriber. That power was there with MTNL, even according to the Apex Court, under Rule 443 referred to above. In the present case the respondent''s telephone connection at his business place was disconnected because of non-payment of bill of his own telephone line at his residence. So, no fault can be found with the action of the appellant, MTNL, in disconnecting the respondent''s telephone connection at his business premises because of non-payment of the telephone charges in respect of his residential phone connection provided to him by MTNL.

As far as the grievance of the respondent-subscriber that he was not given any show-cause notice before disconnecting his telephone line at his place of business is concerned the same is also liable to be rejected in view of the pronouncement of a Division Bench of this Court in the case of H.C. Raghubir(supra) which has been cited by the learned Counsel for the appellant. In that case, the validity of Rule 443 was attacked on the ground that it empowers MTNL to disconnect any phone connection of a subscriber for non-payment of call charges without any notice to the subscriber. That ground of challenges was, however, repelled by the Court. The relevant observations of the Bench in this regard are reproduced below:

(12) It is true that in Rule 443 it is specifically provided that the telephone may be disconnected without notice, nevertheless in our jurisprudence it is recognized that similar statutory provisions may exist. It was observed by the Supreme Court in the case of Union of India (UOI) Vs. Col. J.N. Sinha and Another, that the rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. It was further held that these rules can operate only in areas not covered by any law validly made. It was further held that "But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read with the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of the power". It is clear from the aforesaid observations of the Supreme Court that if, by exercising statutory power, rules are framed which specifically exclude the principle of natural justice then the Court cannot read into the said provision the principles of natural justice. In the present case, it has been specifically provided that if payment of dues is not made then the telephone may be disconnected without notice. The implication is that it is not mandatory on the respondents to issue a show cause notice prior to disconnection of the telephone.

(13) Even though Rule 443 does not require a notice to be given prior to disconnection nevertheless, in actual fact and in effect, a notice is given. It is not in dispute that when a bill is sent in respect of telephone charges, it is specifically provided as to by which date the bill should be paid. The bill further indicates that payment should be made by a specified date "in order to avoid disconnection". The subscriber, therefore, is put to notice that if payment is not made by the prescribed time, the respondents will be at liberty to disconnect the telephone. In our opinion, this by itself is a notice which would be in conformity with the principles of natural justice. The only reason for exercising the power of disconnection under Rule 443 is the non- payment of the bill. Assuming, for the sake of argument, that Rule 443 did not state that telephone could be disconnected without notice, and further assuming that the principles of natural justice have to be read into Rule 443, the question which immediately arises is, what would be the nature of opportunity which would be required to be given before disconnecting a telephone. Principles of natural justice would require that the subscriber should be informed that he has not paid the charges as per the bill and, secondly, on account of non- payment of the charges, the respondents will be disconnecting the telephone. If this is the type of show case notice which will be required to be given, in compliance with the principles of natural justice, then that in fact is done in all cases by the respondents when, as we have, already indicated, bills are sent to a subscriber indicating the date by which the payment should be made and, further, indicating that if payment is not made then the telephone is liable to be disconnected. In other words, though the principles of natural justice are excluded by the provisions of Rule 443 nevertheless, in actual fact, adequate opportunity is .granted to the subscriber who is put to notice that if payment is not made by a particular date, the telephone is liable to be disconnected.

(14) Learned Counsel for the petitioner has referred to the decision of a Division Bench of the Madhya Pradesh High Court in the case of Amreek Singh v. .District Manager, Indore Telephones and Ors. Air 1987 MP 278 In that case the telephone of the subscriber had been disconnected. The subscriber had asked for the reasons of the disconnection and also for the reasons as to why the telephone was not being restored. It was in this connection that the Court observed that elementary rules of natural justice cannot be ignored in the exercise of discretionary power and that no reasons were assigned and nor was the subscriber informed as to why telephone connection could not be restored. That was not a case where there was a disconnection under Rule 443 on account of non-payment of bill. Furthermore, it was not known as to why the disconnection had been effected. Even though it may not be necessary to give a notice before disconnection, under Rule 443, nevertheless, in our opinion, whenever it becomes necessary and is required by the subscriber the respondents have to give the reasons for disconnection. Whereas in Amreek Singh''s case (supra) the reasons for disconnection were not known, in the present case there is no doubt as to why the telephone was sought to be disconnected. The reason is the non-payment of the bill for Rs. 2,50,000.00 which had been raised by the respondents. The reason for disconnection was the one specifically provided for by Rule 443, namely non-payment of telephone charges. In our opinion, Amreek Singh''s case can be of no assistance to the petitioner.

So, the suit of the respondent-plaintiff could not have been decreed for the reason that he had not been given any show-cause notice before disconnecting his residential telephone line. As far as the reason for disconnection of his telephone connection is concerned the respondent- plaintiff himself had pleaded in the plaint that on enquiry he had been informed by the MTNL staff that his telephone line at his business place had been disconnected because of non-payment of telephone dues in respect of the connection in his name at his residence. In my view, the learned trial Court was not correct in decreeing the respondent''s suit and directing the appellant to restore the telephone connection at his place of business in Khari Baoli and so the impugned judgment cannot be sustained.

In the result, this appeal is allowed and consequently the judgment and decree passed by the Additional District Judge stand set aside and the suit of the respondent-plaintiff is dismissed.