Writ Petition No. 689 of 2002

29th April, 2002

Petitioner Counsel: Mr. SATISH SHAH, Mr. JAYESH DESAI
Respondent Counsel: Ms. S. I. SHAH, Mr. D. A. DUBAY

Cases Cited:
Mahanagar Telephone Nigam Ltd. Vs. Dr. B. V. Manek, 1996(2) Mh.L.J. 637 [Para 6,9]
Mrs. Nisha Sheth Vs. The General Manager, Mahanagar Telephone Nigam Ltd., W.P. No.1714/2001, dt: 19/12/2001 [Para 8,10]

JUDGMENT

JUDGMENT :- Rule. Returnable forthwith.

2. Ms. S.I. Shah, Advocate waives service for respondents 1 to 3. Mr. Dubay, Advocate waives service for respondent no.4.

3. By consent rule is taken up for final hearing at this stage.

4. The petitioner no.1 is subscriber of respondent no.1 - Mahanagar Telephone Nigam Limited (MTNL) having been allotted telephone no.6045309. The petitioners no.2 and 3 are also subscribers of MTNL having been allotted telephone no.6048503 and 6000686 respectively. Admittedly, the petitioners no.1,2 and 3 are not defaulters in respect of telephones allotted to them. However one Mrs. A.V. Mehra having been allotted telephone nos. 6041282 and 6057692 did not pay her telephone dues to MTNL and, therefore, both telephone connections given to her were disconnected for non-payment of dues. According to MTNL, Mrs. A. V. Mehra has an outstanding amount of exceeding about Rs.1,07,000/- and the petitioners no.1, 2 and 3 have common link with Mrs. A.V. Mehra having common family name, staying in the same building and, therefore, the telephones allotted to them are liable to be disconnected for outstanding dues against Mrs. A.V. Mehra. MTNL, accordingly disconnected telephone connections of petitioners no.1,2 and 3 in September 2001. By means of this writ petition, the petitioners have prayed that the said disconnection be declared as viod ab initio and MTNL be directed to reconnect and restore telephone connections of petitioners no.1, 2 and 3.

5. Rule 443 of Indian Telegraph Rules provides thus :

"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 the telex so disconnected may if the Telegraph Authority thinks fit, be restored, if the defaulting subscriber pays the outstanding dues and the reconnection fees 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."

6. The said rule came up for consideration before this Court in Mahanagar Telephone Nigam Ltd. Vs. Dr. B. V. Manek, 1996 (2) Mh.L.J. 637. The Division Bench of this Court,upon consideration of rule 443 of the Indian Telegraph Rules held thus:

"2. In our Judgment, even if the aforesaid Rule 443 is held to be good and enforceable the same cannot be applied to the facts of the present case. The rule, at best, will entitle the defendants to disconnect one or more telephone connections in respect of a subscriber. It will not entitle it to disconnect telephone connection of one subscriber for the default of another subscriber. In the circumstances,we find that the impugned order passed by the learned single Judge, which essentially is of a discretionary nature, cannot be faulted. The appeal, in the circumstances, is found to be devoid of merit and the same is summarily dismissed. Expedite the issue of certified copy."

7. This Court has, thus, clearly held that it is not open to MTNL to disconnect telephone connection of one subscriber for the default of another subscriber. It only entitles MTNL to disconnect one or more telephone connections in respect of a subscriber.

8. However, Ms.S.I. Shah, learned counsel for MTNL relying upon an unreported judgment of this Court in Mrs. Nisha Sheth Vs. The General Manager, Mahanagar Telephone Nigam Ltd. & ors., in Writ petition no.1714/2001, decided on 19.12.2001, submitted that as the defaulter Mrs. A.V.Mehra and petitioner no.1, 2 and 3 reside in the same building viz. Aashiana, having common link and common family name, the telephone connections provided to petitioners no. 1,2 and 3 have rightly been disconnected.

9. We are afraid, the contention of the learned counsel for respondents 1 to 3 is wholly devoid of substance and inconsistent with unequivocal law laid down by this Court in the case of Dr.B.V. Manek (supra)

10. In Mrs. Nisha Sheth (cited supra), the affidavit in reply filed by MTNL clearly showed that the defaulter subscriber Ashok Sheth, his brother Dinesh Seth and the petitioner therein Mrs. Nisha Seth were staying together having joint and common use of those three telephones by their family members and in view of the said facts, the Division Bench of this Court did not find fault in the action of MTNL in disconnecting telephone provided to the petitioner therein. In view of the Division Bench there was common use of the telephone provided to the petitioner therein (Mrs. Nisha Sheth) and the defaulter member (Ashok Sheth). In the present case, there is no evidence much less even material which may lead to an inference that petitioner no.1,2 and 3 and the defaulter subscriber Mrs. A.V. Mehra were staying together and there was joint and common use of three telephones provided to the petitioners and the two telephones provided to Mrs. A.V. Mehra. The argument advanced by the learned counsel for the respondents that in the application form for getting telephone connection the petitioners as well as Mrs.A.V. Mehra have stated their residential address as 17, Aashiana and, therefore it should be considered that all the three petitioners and Mrs. A.V. Mehra are family members staying jointly can hardly be accepted. Aashiana is a multi-storeyed building having number of flats wherein petitioners no. 1 and 3 are staying in one flat, petitioner no.2 is staying in another flat and the defaulter subscriber Mrs.A.V.Mehra is staying in yet another flat. Merely because building address is common, by no stretch of imagination, can it be said that there is joint and common use of the telephones allotted to the petitioners and the telephones allotted to the defaulter subscriber. In our considered view, the case in hand is squarely covered by the judgment of this Court in Dr. B.V. Manek (Supra). The action of the respondents, therefore, in disconnecting the three telephones provided to petitioners no.1,2 and 3 is wholly illegal, arbitrary and highly unjustified.

11. We, consequently, allow the writ petition and declare disconnection of three telephones bearing nos.6045309, 6048503 and 6000686 provided to petitioners no.1, 2 and 3 respectively as wholly illegal. The respondents 1 to 3 are directed to forthwith restore the three telephone connections bearing nos.6045309, 6048503 and 6000686 and in no case later than twenty four hours failing which the respondents shall be liable to pay compensation at the rate of Rs.1,000/- per day's delay to the petitioners no.1, 2 and 3.

The respondents 1 to 3 are also directed to pay cost of Rs.1000/- to the petitioners as cost of the writ petition.

Needless to say that for the period during which telephones allotted to petitioners no.1,2 and 3 remained disconnected, the respondent 1 to 3 shall not be entitled to recover any rental charges and no re-connection charges shall be recovered from the petitioners no.1, 2 and 3.

Certified copy expedited.

Petition allowed.