Mansarovar Hotel vs Telecom District Manager and Others

D.N. Chowdhury, J.—The proceeding is directed against the notice issued by the Accounts Officer (TR), office of the Telecom District Manager, Kamrup Telecom District, Guwahati, expressing its intention to invoke Rule 443 of the Indian Telegraph Rules, 1951.

The Petitioner is a subscriber of Telephone bearing No. 34337 and the Petitioner is regularly paying the rent and other charges of the telephone services relating to the aforesaid telephone and there is no outstanding dues against the said telephone which is used for the business purpose of the Petitioner. The Telephone No. 34337 stands in the name of Man Sarovar Hotel and Restaurant, and the Petitioner moved this Court being aggrieved by the communication No. TRA/DFT/GH-33211/4 dt. 25.6.93 for payment of outstanding telephone bills in respect of telephone No. 33211 standing in the name of Nandalal Sharma. The full text of the notice is extracted below:

I have the honour to bring your special notice that an amount of Rs. 4,08,779/- relating to telephone No. 33211 for the period from 1.6.91 to 1.12.92 are lying outstanding as per this office records.

Despite of several notices on payment has since been made, and as such, the Rule 443 of Indian Telegraph Act, 1885 will be invoked to disconnect your working telephone No. 34337 and telex No... for non-payment of the above outstanding within seven days from issue of this letter.

The Petitioner has also referred to a communication No. TRA/DFT/GH-332l1/1 dt. 13.5.93 containing a consolidated bill in duplicate for an amount of Rs. 4,08,779/- relating to telephone No. 33211 for the period from 1.6.91 to 1.12.92. The Petitioner contended that as a subscriber of telephone No. 34337 he was only accountable for the rent and charges for the aforesaid telephone. Since the Petitioner was not the subscriber of the telephone No. 33211 he could not be made liable for the aforesaid dues in respect of telephone No. 33211 which stood in the name of Sri Nandalal Sharma, who had nothing to do with the Petitioner. The Petitioner had mainly based his case on the assertion that the Petitioner being a partnership firm, who was carrying on hotel business as asserted, and it had no connection whatsoever manner with Sri Nandalal Sharma. The relevant averments to this effect, as made in the writ petition, are set out below:

That, your humble Petitioner states that as per its information Shri Nandalal Sharma, some few years back got a telephone connection at the address given as "C/o. Man Sarovar Hotel and Restaurant" and the number allotted to him was 33211 and later on after about 5/6 months, he got the telephone shifted at a new address namely "C/o. Dinesh Baishya, G.S. Colony, Santipur" and later on the phone was shifted once again with address as "C/o. Kamalesh Kumar Thakur, SRC Thakur Bazar, A.T. Road, Guwahati-1.

That your humble Petitioner begs to state that the said telephone was the personal telephone of Shri Nandalal Sharma and the Petitioner firm never used the said phone and was neither the user nor subscriber of the said phone and the phone was never utilised for the business of the Petitioner and the Petitioner firm is in no way connected with the said phone.

* * * 11. That your humble Petitioner begs to state that there was no justifiable reason to send the notice of Nandalal Sharma with his address at C/O. Kamalesh Kumar Thakur, SRC Thakur Bazar, A.T. Road, Guwahati to the address of the Petitioner and the motive of sending the said notice was presumably to link that the Telephone No. 34377 and 33211 are used by the same persons/firms or related to each other and since, the two phones were not used by same persons or related to each other, there were no valid or just reasons to issue or redirect the notice dated 13.5.93 (Anneuxre-3) to the Petitioner.

The Respondents Nos. 1 and 2, i.e. the Telecom District Manager, Kamrup Telecom District, Guwahati, as well as the Accounts Officer (TR), submitted a joint affidavit denying and disputing the plea of the Petitioner. The Respondents disputed the fact that the Petitioner as a firm registered under the Indian Partnership Act and that it asserted that Sri Nandalal Sharma at all relevant time was the sole proprietor of Mansarovar Hotel, who is also the subscriber of Telephone No. 33211. The Department annexed the application No. 3427 dated 4.3.85, which is marked as Annexure-1 to show and establish that the Telephone No. 33211 was installed on the application of Shri Nandalal Sharma, which he required for Mansarovar Hotel, Fancy Bazar. The relevant averment to this effect is given below:

That, with regard to the statements made in paragraphs 5 and 6 of the writ petition, the deponent states that as per the original application for new telephone connection referred to above Shri Nandalal Sharma is the sole proprietor of the alleged firm Hotel Man Sarovar, S.R.C.B. Road, Fancy Bazar, Guwahati and his address was also given as Hotel Man Sarovar and Restaurant and the same is still appearing in the telephone directory. Be that as it may, even assuming while denying that the Petitioner is a firm as contended still Shri Nandalal Sharma can be termed as "subscriber" within the meaning of Rule 443 of the Indian Telegraph Rules. Assuming for argument sake that the Petitioner is a firm, even then Shri Nandalal Sharma is a subscriber of telephone No. 33211 and is jointly and severally liable for all the liabilities and obligations of the firm and vice-versa. In other words, as per the provisions of the Indian Partnership Act, 1932 the partners and the firm are not separate entities distinct from each other. As such, the contention of the Petitioner that the Petitioner firm never used the telephone 33211 and was neither the user or subscriber of the said telephone is untenable and denied by the answering deponent.

In order to justify its action the Respondents mainly relied upon the powers conferred on it by Rule 443 of the Indian Telegraph Rules, which is quoted below:

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 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 (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.

The vires of the aforesaid Rule 443 is not being assailed, we shall therefore proceed with the assumption that Rule 443 is a valid piece of Rule.

Mr. S.S. Sarma, the learned Counsel appearing on behalf of the Petitioner raised mainly two issues. Mr. Sarma, the learned Counsel, firstly submitted that the Petitioner could not be made liable for the outstanding dues relating to the telephone No. 33211. The subscribers of both the two telephones were different and distinct. Mr. Sarma the learned Counsel vigorously urged that the telephone No. 33211 was not rented to the Petitioner and therefore on the face of the Rule 443 the Petitioner cannot be made liable for the acts or omissions of Sri Nandalal Sharma.

The Petitioner claimed itself to be a partnership firm, but no proof as such was produced before the Court. The Court was kept completely in dark as to whether the firm in question was a Registered Firm or an unregistered Firm. Even no materials were submitted before this Court about the number of partners nor the names of the partners were disclosed to this Court. On the other hand, the application dated 4.3.85 submitted by Sri Nandalal Sharma the subscriber of telephone No. 33211, who wanted the telephone connection in Mansarovar Hotel, prima facie lent support to the assertions of the Respondents that both the telephones in question were rented by Sri Nandalal Sharma. The Petitioner seems to be aware that one Nandalal Sharma "some few years back got a telephone connection at the address given as "C/O. Man Sarovar Hotel and Restaurant" and the number allotted to him was 33211". The said information is based on "its information" and no source of information is disclosed before this Court. The identify of Nandalal Sharma was mysteriously kept under a veil of secrecy. From the facts narrated in the petition, more particularly from the assertions made at paragraph 12, it seems that the Petitioner was fully abreast about various details of dues of Sri Nandalal Sharma and all the assertions made in the petition are based on knowledge. Therefore, from the available facts as well as the circumstances it cannot be ruled out that the subscriber of both the telephones were not the one and the same person.

Mr. Sharma, learned Counsel for the Petitioner, in his usual forceful manner, submitted that even assuming Rule 443 is applicable in the instant case that by itself did not confer the power on the Respondents to disconnect any other telephone except that of a defaulting subscriber. According to Mr. Sharma the said Rule cannot be invoked to disconnect telephone No. 34337 for realisation of the alleged dues of telephone No. 33211, and the Respondents can seek remedy for realisation of the dues by instituting a suit against the defaulting subscriber.

Mr. K.N. Choudhury, learned Sr. Standing Counsel appeared on behalf of the Respondents, on the other hand, submitted that the provisions of Rule 443 is clear and unambiguous empowering the Respondent authority to disconnect any telephone or telephones or telex services rented by the defaulting subscriber without any notice. The learned Counsel submitted that the provision of Rule 443 was introduced by the Rule making authority as a device to realise the charges from the defaulting subscriber.

I have examined the Rule 443. The words of Rule 443 are clear and unambiguous and therefore there cannot arise any question of interpretation or construction. The words speak for themselves. When the rule making authority clearly conveyed the intention in plain words this Court is not in a position to give its own meaning which will amount to re-writing of the provisions of the Rules. The object of interpretation is to give effect to the meaning those are conveyed by the statute, unless, of course, the grammatical construction leads to any absurdity.

The submissions made by Mr. Sharma to the effect that Rule 443 cannot cloth the authorities the power to disconnect any other telephone other than the telephone in respect of which the default is caused, no doubt found support in the observations made at para 27 of this Court''s decision in Civil Rule No. 72 (SH) 1989 decided on 26.9.89 - Sardar Santokh Singh v. Divisional Engineer, Telephones, Shillong and Ors., reported in 1989 (2) GLR 331. The Division Bench in the aforesaid decision though did not held Rule 443 to be ultra vires but read down the same and held that the power is confined only to the particular telephone in respect of which there is default in payment and not to other telephones. Mr. Choudhury, learned Sr. Standing Counsel, did not dispute this aspect of the matter but submitted that the scope of Rule 443 is now under examination before the Supreme Court. Mr. Chouhury submitted that against the aforesaid judgment and order of this Court the Department went up on an appeal to the Supreme Court and the Special Leave was granted by the Supreme Court on the question as to the scope of Rule 443 and in the interim the Supreme Court stayed the judgment of the High Court. Mr. Choudhury submitted a photo copy of the aforesaid order, which is kept on record.

I have examined the provisions of the Rule and since the vires of the rule is not assailed, in my considered opinion, the Rule 443 can be invoked, even in those cases where there may not be any default in payment, for realisation of the payment from any telephone/telephones rented by the subscriber. The Rules are clear and unambiguous. For the foregoing reasons the writ petition is dismissed. No costs.

The rule is discharged.