* IN THE HIGH COURT OF DELHI AT NEW DELHI
% RFA NO. 442 OF 1996
+ Date of Decision: 18th September,2009
# MAHANAGAR TELEPHONE NIGAM LTD. & ANR. ...Appellants
! Through:Mr.V.K. Rao and Mr. Saket Sikri, Advs.
Versus
$ ABDUL BARI ...Respondent
^ Through: None
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see the
judgment?(No)
2. To be referred to the Reporter or not?(No)
3. Whether the judgment should be reported in the digest?(No)
JUDGMENT
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.
2. 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,
RFA 442/1996 Page 1 of 9
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.
3. 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
RFA 442/1996 Page 2 of 9
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.
4. From the pleadings of the parties the trial Court framed the
following issues:-
“1. Whether the defendant is empowered to disconnect one
telephone of the subscriber for the dues of other telephone of
the same subscriber? OPD
2. Whether the plaintiff is entitled to relief of mandatory
injunction as claimed? OPP
3. Relief.”
5. 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
RFA 442/1996 Page 3 of 9
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.
6. 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.
RFA 442/1996 Page 4 of 9
7. Mr. Rao basically relied upon a decision of the Supreme Court in
“Surjit Singh vs Mahanagar Telephone Nigam Ltd.” JT2008(5)SC325
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(AIR 1990 Gauhati 47) 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“, 48(1992) Delhi Law Times 319 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.
8. The entire controversy centres around Rule 443 of the Indian
Telegraph Rules. This Rule reads like this:-
“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 ofRFA 442/1996 Page 5 of 9
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.”
9. 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.
RFA 442/1996 Page 6 of 9
10. 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 recognised that similar statutory provisions may
exist. It was observed by the Supreme Court in the case of Union of
India v. Col. J.N. Sinha and Another(1970(2) SCC 458) 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.
RFA 442/1996 Page 7 of 9
(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 Others 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. TheRFA 442/1996 Page 8 of 9
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.”
(emphasis supplied)
11. 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.
12. 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.
P.K.BHASIN,J
SEPTEMBER 18, 2009
RFA 442/1996 Page 9 of 9