P.R. GOKULAKRISHNAN , R.A. MEHTA

(1.) The petitioner seeks a direction to quash and set aside the notice of disconnection of the petitioners telephone No. 445764 ant also wants that Rules 421 and 443 of Indian Telegraph Rules 1951 be struck down as violative of the principle of natural justice.

(2.) The petitioner is a partner of M/s. Sukan Chemicals. That partnership firm is a subscriber of other telephones namely 830532 and 830533 In respect of both these telephones unpaid outstanding dues are Rs. 69335.00 as per telephone bills dated 1-11-1988 and 1-1-1989. Since these amounts were not paid in spite of sufficient time having been granted to make the payment both these telephones of the firm were disconnected on 12-12-1988.

(3.) Thereafter a notice was issued to the firm on 6-1-1989. A similar notice dated 16-1-1989 was addressed to the petitioner partner by name and therein it was stated that for the non-payment of the telephone dues of the firm the personal telephone of the petitioner is also liable to disconnection if the dues of the telephones of the partnership firm were not paid. This was replied by the petitioner on 27 and it was stated that the factory was not working since November 1989 as one of its main partner Dr. S. P. Shah had expired in the air crash on 19-10-1988 and there were stringent financial difficulties. It was also stated that negotiations with a few parties for arranging necessary finance were going on and were hopeful of restarting the factory within a fortnight and therefore request was made to grant suitable instalments to make payment of the bills. It was stated that payment could be started from March 1989 and shall repay the full amount in four equal instalments and request was made not to take any other action during this period.

(4.) The Telephone Department replied by its letter dated 1-2-1989 stating that looking to the circumstances stated by the petitioner and also simultaneously keeping in view the Government revenue it was directed that before 15-2-1989 a sum of Rs. 46 977 be paid and the balance amount of Rs. 22 359 be paid before 28-2-1989 failing which other telephone facility would be withdrawn without any notice.

(5.) Till today admittedly the payment is not made.

(6.) The petitioner contends that his personal telephone in his individual capacity cannot be disconnected because of non-payment of the telephone bills of the partnership firm in which he is a partner According to him the petitioner is a subscriber of the telephone as an individual and the partnership firm is altogether an independent and different subscriber and default in one capacity cannot result into the of telephone in another Capacity. Rule 443 of Indian Telegraph Rules reads as under:

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 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. Thus if the dues of 8 telephone are not paid by the subscriber any telephone or telephones or any telex service rented by him be disconne- cted without notice. However the argument of the learned Counsel for the petitioner is that there are two different subscribers; the petitioner is a subscriber in his individual capacity and in respect of the firms telephone for which default has been committed the subscriber is a firm and its individual partners are not subscribers and therefore the individual telephone of the partner cannot be disconnected for non- payment of dues of the telephones of the firm.

(7.) Rule 2(pp) defines subscriber to mean a person to whom 8 telephone service has been provided by means of an installation under these rules or under an agreement. In the present case the subscriber consists of a partnership firm of three partners. The partnership firm is not a legal person. Therefore the throe partners are the subscribers

(8.) This question was considered in the case of Bhagwanji Devraj v Union of India [1975]16 GLR 357 by the learned single Judge. There 8180 the contention was that one Shakti Oil Mill a partnership firm was in default of payment of the telephone charges and it was contended that the firm was a distinct entity from partners constituting the firm and the personal telephone of a partner could not have been disconne- cted on account of the default committed by the partnership firm. The learned single Judge considered the nature and character of a partner- ship firm and relied on the judgment of the Supreme Court in the case of Maharani Mandalsa Devi v. H. Ramnarain Pvt. Ltd. 66 BLR 31 wherein it was laid down that the partnership firm has a limited status for the purpose of Order XXXIII of Civil Procedure Code and that legal fiction created by Order XXX cannot be carried too far. A partnership firm has no legal personality and persons who are individually partners are collectively called a firm and therefore the proceeding against a firm is really a proceeding against all the partners of the firm and if a decree is passed in such a suit it is in effect against all the partners though in form it may be against the firm only. Thus it was held that the firm and its partners are interchangeable terms and therefore If a partnership firm incurs any liability it is the liability as all the partners. Section 25 of the Indian Partnership Act 1932 provides that every partner is liable jointly with all the other partners and also severally for all acts of the firm done while he is a partner. Thus the liability of the partnership firm is a joint and several liability of each and every partner. Applying this principle the learned single Judge held that the telephone rented by the partnership firm was really rented by all its partners and therefore the liability for payment was of each partner jointly and severally and the same could have been recovered from any partner. It is thus clear that when a telephone subscriber is a partnership firm really speaking all the persons constituting such firm its partners are the owners of the telephone and subscribers and each one of them has rights and liabilities of a subscriber. Therefore when such partner/subscriber is in default in payment of telephone does because the partnership firm has failed to pay these bills Rule 433 is attracted and any telephone rented to such subscriber-partner even in his individual capacity is liable to disconnection. We are in complete agreement with the learned single Judge in this regard. The learned Counsel for the petitioner could not distinguish or indicate as to how this judgment is erroneous.

(9.) The learned Counsel for the petitioner submitted that no notice to the petitioner was served as an individual. The notice which was served to him was addressed to him as Partner Shri Indravadan P. Shah. It is clear that it was addressed to him by name and it was stated therein that his other telephone in his personal name is liable to be disconnected if the telephone dues of the partnership telephone are not paid. Therefore there is no substance in the argument that the petitioner was not given any notice. It was also submitted that the notice was not a notice to show cause and therefore there is violation of the principles of natural justice. The notice is given indicating all the facts. It is open to the petitioner to show that the notice in factu- ally or legally not tenable. The time was given to comply with it and it is open to the petitioner to reply it and explain. It in therefore not correct to say that there is any violation of the principles of natural justice.

(10.) It was also contended that Rule 443 is discriminatory on the ground that it discriminates between a subscriber and a subscriber because it gives different and discriminatory treatment to a subscriber firm and a subscriber limited Company. It is to be noticed that the two fall into distinct classes. A Company has a legal personality which a partnership does not have and therefore the partners are the owners whereas in a Company the ownership vests in large body of share- holders; that too in a peculiar manner. Its ownership in without direct control or even responsibility. The liability of shareholders in limited whereas in case of partnership firm each partner is jointly and severally liable for the acts of the firm. It is because of these peculiar features of two kinds of entities namely the partnership firm and the Company that they ate so dissimilar that they cannot be compared ant is cannot be said that there is any discriminatory treatment.

(11.) It was also contended that Role 443 is ultra vires Sec. 7 of the Indian Telegraph Act 1885 According to the learned Counsel for the petitioner the Rule is beyond the rule making power 8ranted by Sec. 7. Section 7 enables the Central Government to make rules for the conduct of all or any telegraphs established maintained or worked by the Government. Sub-sec. (2) of Sec. 7 provides further that rules may also provide for other conditions are restrictions subject to which any telegraph line appliance or apparatus for telegraphic communication shall be established maintained worked repaired transferred shifted withdrawn or disconnected. Thus there is a clear provision enabling the framing of Rule 443. therefore there is no substance in this argument also.

(12.) In view of the aforesaid discussion this petition has no merit and it falls. Hence dismissed. Notice discharged a. Interim relief vacated.

(13.) Mr. Thakkar learned Counsel appearing for the petitioner submits that he is taking this matter to Supreme Court and as such the ad interim relief granted as early as 16-3-1989 may be continued for a further period of six weeks from today. Considering the facts of the case and also taking the submission made by Mr. Thakkar the ad interim relief granted In terms of para 15(D) of the Special Civil Application No. 1900 of 1989 will be continued for a period of six works from today on condition that the petitioner deposits in this Court a sum of Rs. 25 0 towards the outstanding amount within two weeks from today. (KMV) Rule discharged.