1. Leave under Rules 147 and 148 the High court of Judicature at Bombay (O.S.) Rules, 1980 is granted to the plaintiff to take out Notice of Motion in terms of the draft notice of motion handed in. By consent, Notice of Motion is made returnable forthwith and placed for hearing. The defendant waives service.

2. The plaintiff is a doctor by profession. Pursuant to the application made by the plaintiff in December 1987, the defendants Mahanagar Telephone Nigam Limited ("M.T.N.L." for short) provided a telephone connection to the plaintiff under special category bearing Telephone No. 5603314 at the plaintiffs residence at B-8, Mugh Malhar Co-operative Housing Society Ltd., 2nd Floor, Murar Road, Mulund (W), Bombay -400 080. Thereafter, the defendant shifted the said telephone to the plaintiffs present address of Flat No. A-2, ground floor, Anubhav, R.P.X. Road, Mulund (W), Bombay. There is no dispute that the plaintiff has paid all the bills sent to the plaintiff with respect to the said telephone No. 5603314. The main grievance of the plaintiff is that without issuing any prior notice and without assigning any reasons, the defendant disconnected the plaintiffs telephone. The plaintiff says that by reason of this high-handed and arbitrary action on the part of the defendant, the plaintiff is suffering grave and serious hard-ship. The plaintiff has, therefore, taken out this Notice of Motion for mandatory interim reliefs.

3. In contesting the Notice of Motion, the defendant contended inter alia that the plaintiffs telephone has been placed under special disconnection with effect from April 20, 1995 under the instructions contained in Dy. General Managers (TRA) letter dated may 11, 1994. It is averred in the affidavit of P.R. Tambe, filed on behalf of the defendant, that the plaintiffs father V. N. Manek was a subscriber of telephone No 5680227. The said V N. Manek fell in arrears and in spite of oral as well as written request from the Department, failed to clear the arrears, and therefore, the telephone connection of V. N. Manek was disconnected. It is also averred that the defendant had issued a notice dated November 8, 1994 to V. N. Manek for clearance of the outstanding failing which his son i.e., the plaintiffs telephone No 5603314 will be disconnected. It is claimed that a copy of such notice was also marked to the plaintiff for information. The defendant says that the telephone of the plaintiff is being suspended as the same was under use by V. N. Manek and his family members. The defendant says that they are empowered to disconnect to R.443 of the Indian Telegraph Rules.

4. The short question which falls for my consideration is whether the M.T.N.L. has power to disconnect the telephone of a relation of the subscriber on the ground of default on the part of such subscriber. Before I deal with the decisions of the various High Courts cited at the Bar, it is necessary to make a brief reference to the relevant rules contained in the Indian Telegraph Rules. The Rules in Part V provides for disconnection under different circumstance and situations. Rule 420 deals with the disconnection when a subscriber who is adjudged as an insolvent, etc., commits breach or fails to observe the Rules after notice. Rule 421 contemplates disconnecting telephone where the Divisional Engineer is satisfied for the reason to be recorded in writing, after giving notice in writing to the subscriber and Rule 424 contemplates right to disconnection in the event of any emergency with or without notice. Rule 424 provides for disconnection in an event of the subscriber making outward local calls in excess of a certain number to be laid down by Telegraph Authority from a telephone after giving an opportunity to the subscriber in writing to rent another telephone or additional connection. Rules 439 and 440 provide as to when the charges become payable and the responsibility of the subscriber to pay the bills. Rules 442 provides for the mode of service of the bills and Rules 443 provides for the consequences of default in the payment of bills. Rule 443 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 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."

5. Now the question is whether Rule 443 empowers the Department to disconnect the telephone of a relation or an associate of the subscriber for the default of the subscriber. On a plain reading of Rule 443, it is clear that it contemplates disconnection of a telephone of a subscriber. The words "rented by him" means and refers to the subscriber. There appears to be some divergence of opinion on the question as to whether the Departments power is restricted only to the telephone in respect of which default has been committed or any other telephone rented to the subscriber. In Santokh Singh v. Divisional Engineer, Telephones, Shillong : AIR 1990 Gau 47, the Division Bench of the Gauhati High Court ruled that Rule 443 cannot be interpreted to vest with the Authority the power to disconnect any other telephone working in the name of the same subscriber either at the same premises or elsewhere on the ground of default of payment in respect of one of his telephones. In the opinion of the Gauhati High Court, this power is confined only to a particular telephone in respect of which there is default in payment and not to the other telephones. The Gujarat High Court has, however, taken a contrary view in the case of Indravadan Pranlal Shah. v. General Manager Ahmedabad Telephones : AIR1990Guj85 . The Division Bench of Gujarat high court has held that if the dues of telephone are not paid by the subscriber, any telephone or telephones or any telex service rented by him can be disconnected without notice. The Gujarat High Court has mainly relied upon Rule 2(pp), which defines "subscriber" to mean a person to whom a telephone service has been provided by means of installation under the rules or under an agreement. It was held that in case the subscriber consists of a partnership firm, since it is not a legal person, the partners are the subscribers. Therefore, when such partner/subscriber is in default in payment of telephone dues because the partnership firm has failed to pay those bills, Rule 443 is attracted and any telephone rented to such subscriber partner even in his individual capacity it liable to disconnection. The High Court of Madras in S. M. Ayua v. Union of India and others (Writ Appeal No. 1151 of 1987decided on 8-11-1990) has agreed with the view taken by the Gujarat High court. Although the issue involved in the present suit is slightly different, I wish to record my respectful agreement with the view taken by the Gujarat High Court in Indravadans case (supra). The judgement of Gujarat High court, in my opinion, is consistent with the scheme framed under the rules. The judgement of Gujarat High Court, in my opinion, is consistent with the scheme framed under the rules. Thus it cannot be disputed that the Department has got power to disconnect any other telephone rented by the subscriber. However, the question is whether the Department has got power to disconnect the telephone of a relation of the subscriber on account of the default committed by such subscriber.

6. On a plain reading of the definition of "subscriber", it is seen that a subscriber is a person, who has subscribed for a particular telephone whether it be an individual or a partnership firm or a corporate body. In the present case, the telephones dues are in respect of telephone No. 5603314, which was admittedly subscribed by V. N. Manek, the petitioner cannot be described to be the subscriber of the said telephone and the said telephone alone can be disconnected in the event of the subscriber not having paid the dues to the Department. Even the Madras High Court in S. M. Ayuas case (supra) observed that the words "rented by him" in Rule 443 refers to the subscriber only. In a similar situation, the Andhra Pradesh High Court in Y. Pridhvi Kumar v. General Manager, Telecom District, Hyderabad : AIR1993AP131 held that disconnection of telephone of son would be arbitrary and unreasonable and violative of Art. 14 of the constitution. Similarly, the Delhi Mahanagar Telephone Nigam Ltd. 1989 Raj LR 393 held that the term "subscriber" means a person or firm, who have subscribed and it would not include the relations, who have independent connections and whose phone the defaulter may be using and, therefore, DMT Nigam cannot demand dues (or give threat of disconnection ) to relations of defaulter.

7. Before I conclude, I may mention that Ms. Shah, learned counsel for the defendant, relied upon a judgment of Madras High Court in S. Thangam v. Area Manager, Madras in Writ Petition No. 5903 of 1987 dated August 4, 1987. In my opinion, the facts before the Madras High Court are clearly distinguishable. In that case, the partnership firm had fallen in arrears of telephone dues to the extent of Rs. 1,67,000/-. Some minors were admitted to the benefit of the partnership firm, and their mother was representing the interests of the minors was in the firm. Under these circumstances, it was held that the failure of the partnership firm in having cleared the arrears and the dues of the telephone department, the telephone connection of the latter was held liable to be disconnected. The said judgment is clearly in-application to the facts of the present case.

8. In view of the foregoing discussion, the Notice of Motion succeeds and is made absolute in terms of prayer clause (a). The defendant is directed to reconnect the plaintiffs telephone connection within a week from today. No order as to costs.

The defendant to act on an ordinary copy of this judgment duly authenticated by the associated of this court.

9. Order accordingly.