# Brij Behari and others v. Nagar Palika Parishad and others

- **Citation:** (1999) 2 ILRA 132
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-behari-and-others-v-nagar-palika-parishad-and-others-39029
- **Pages:** 8

## Text

THE INDIAN LAW REPORTS [1999
132

In that view of the matter the writ petition succeeds and the
impugned order shall be treated as nonest in view of the settlement
arrived at between the parties as contained in Annexure-11 and is
hereby declared as such. In case the other employees had expressed
regret and had given undertaking as stated in paragraph 13 of the
counter affidavit the petitioners shall also express their regret and
give undertaking in writing before their joining. If such an
expression of regret is expressed and an undertaking is given in that
event the petitioners shall be allowed to join and be given all such
benefits as has been given to other employees. However, the
expression and undertaking given by the petitioners shall not be used
for the purpose of victimising the petitioners by entering the same in
the service record of the petitioners.

With this observation this writ petition stands allowed to the
extent as indicated above.

The other contention raised by Sri Sahai is that the petitioner
being confirmed employees their services could not have been
terminated without assigning any reasons in the manner as has been
sought to be done. This contention is disputed by Shri Goswami.
However, in view of the discussion made above, it is not necessary
to go into the said question for the purpose of the present writ
petition.

Petition Allowed.

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1999
------
Brij Behari and
others
 Vs.
Nagar Palika
Parishad and
others.
------
D.K. Seth, J.
1999
------
April, 6
2 All.] ALLAHABAD SERIES
133

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By the Court

1. Whether for the non-payment of the Bill of a closed connection
telephone of a Public Limited Company the telephone of the wife of
the Managing Director of that Company, which is under liquidation,
can be disconnected by the Telecom Authority by invoking Rule 433
of the Indian Telephone Rules?, is the short question for our
adjudication in this writ petition.

2. Firstly the prayer of the petitioner. Her prayer is to quash the
order dated 26.12.1990 and the direction as contained in the Letter
dated Agra 1.6.1991 addressed to the petitioner of the Account
Officer (T.R.) Agra Telephones, Agra (Respondent No.2) as
contained in Annexure Nos. 5 and 11 respectively.

2A. The relevant part of the order, as contained in Annexure5, reads thus:-
"Sub:- Disconnection of Phone No. 61743
Kindly disconnect phone no. 61743 in lieu of O/- dues
of Closed connection No. 73579."

2B. The substance of the communication made vide the letter
as contained as contained in Annexure-11 is that she is requested to
deposit the due amount of Rs.3455/- in regard to Telephone No.
73579, failing which the connection of her telephone No. 61743 can
be disconnected and that it is expected that she will not give such an
opportunity to the Department.

3. The petitioner's case is as follows:- Agra Construction Company
Ltd. Agra was a Public Limited Company having its Branch Office
at Sanjay Place, Agra. Telephone No. 73579 belongs to the said
1999
------
Smt. Shobha
Chaturvedi
 Vs.
U.O.I. &
others.
------
Binod Kumar
Roy, J.
Onkareshwar
Bhatt, J.
THE INDIAN LAW REPORTS [1999
134
Company. The telephone bills of the aforementioned telephone of
the company were regularly paid except the bill of March, 1989. To
the tune of Rs.3455/-. On account of non-payment the aforesaid Bill
that telephone was disconnected on 8.6.1989. The company went
into liquidation. A Receiver was appointed over its properties by the
Delhi High Court. The husband of the petitioner was Managing
Director of the Company. The petitioner is living at 36, Baghfarzana,
Agra having her independent telephone bearing No. 61743 at her
aforementioned residence in her own name. She has been regularly
paying bills of her telephone but for non payment of the dues of the
Company's Telephone No. 73579 the order communication as
contained in Annexure 5 and 11 have been made even through she
has nothing to do with the company. Therefore no coercive action
should have been taken against her by the telephone authorities.
Their action is against the very concept of law relating to Private
Limited companies and accordingly the impugned order and
communication are liable to be quashed.

4. On 25.7.1991 the following order was passed by the Bench:-

"A notice of the petition has been served on the
learned Senior Standing Counsel List this petition for
admission on the expiry of a month by which the
respondent may file counter affidavit.

Meanwhile the first respondent is directed to restore
the telephone standing in the name of the petitioner,
namely, telephone no. 61743 within a week of the date
on which a certified copy of this order is submitted
before the respondent nos. 1 and 2 provided that there
are no dues outstanding against the petitioner with
respect to this telephone.

Sd/-A.N.Verma,J.

Sd/-R.K.Gulati,J.

5. A counter affidavit was filed on 27.1.1999 by the
Respondents alongwith an application for its acceptance after
condoning the delay. It has been sworn by the Assistant Account
Officer, the Telecom District Mahanagar , Agra and following facts
have been stated:-

1999
------
Smt. Shobha
Chaturvedi
 Vs.
U.O.I. &
others.
------
Binod Kumar
Roy, J.
Onkareshwar
Bhatt, J.
2 All.] ALLAHABAD SERIES
135
Telephone No. 73579 was disconnected on 8.6.1989 for
default in payment of the bills. Notices recovery were sent to the
husband of the petitioner Sri Satish Chandra Chaturvedi, who was
the Managing Director of the Company, who vide his letters dated
3.5.1990 and 12.5.1990 requested to adjust the outstanding dues
against the OYT deposit of Rs.8000/- made by the Company.
Accordingly a sum of Rs.6000/- was adjusted but a sum of Rs.3445/-
still remained to be recovered. Sri R.N.Bhatia, aretired officer of the
petitioner Corporation was appointed Receiver at the instance of the
company. It is admitted that telephone no. 61743 was provided in the
name of the petitioner at 36, Bagh Farzana, Agra. Telephone no.
61743 was disconnected on 26.12.1990 and not earlier. Under the
Rules the Respondents are well within their legal powers to
disconnect the telephone of the petitioner since she is wife if Sri
S.C.Chaturvedi who has been enjoying that telephone. The telephone
of wife can be legally disconnected against the dues of her husband
under the Rules. It has been held to that effect as per the recent
judgement dated 25.11.1986 in Zarina Begum Vs. General Manager,
Madras, of a learned Single Judge of the Madras High Court, The
writ petition is, thus devoid of merit and is liable to be dismissed .

The Submissions:-

6. Sri Pankaj Mishra, the learned counsel appearing on
behalf of the petitioner, contended that the stand by the Respondents
in the counter affidavit is thoroughly misconceived. The petitioner is
the owner/subscriber of her telephone who cannot be compelled to
pay the dues of that Telephone which admittedly belonged to the
company and her telephone cannot be disconnected by the
Department. Significantly, no specific Rule has been referred to in
the counter affidavit to support the basis of the plea of the
Respondents and accordingly the reliefs claimed for by the petitioner
are fit to be allowed with costs.

7. Sri Parekh, learned Standing Counsel for the Union
appearing on behalf of the Respondents, on the other contended as
follows:- As per Rule 443 the Telecom authorities are entitled to
disconnect the telephone of the petitioner and they have not
committed any wrong in passing their order and communication. He
relied upon a Division Bench judgement of this Court in M/s Ajay
Iron and Steel Works and Another V. Union of India & others 1999
ALR 91. He also submitted that the writ petition is fit to be
dismissed.
1999
------
Smt. Shobha
Chaturvedi
 Vs.
U.O.I. &
others.
------
Binod Kumar
Roy, J.
Onkareshwar
Bhatt, J.
THE INDIAN LAW REPORTS [1999
136

Our Findings:-

8. Rule 443 of the Indian Telephone Rules framed under the
Indian Telegraph Act, relied upon by Mr. Parekh reads 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 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 Telephone
Authority from time to time. The subscriber shall pay
all the above chages within such period as may be
prescribed by the Telephone Authority from time to
time.

9. Rule 2(pp) defines a "subscriber" as follows:-

"Subscriber" means a person to whom a
telephone service has been provided by means of an
installation under these rules or under an agreement."

10. On a conjoint reading of the aforementioned Rules, it is clear
that if a subscriber commits default in payment of the bills of his
telephone then his telephone can be disconnected. At best it can be
applicable if the subscriber owns more than one telephone. This rule
cannot be invoked by the Department if the subscribers are different.

11. On the case set-forth by the Respondents in the counter affidavit
Telephone No. 74579 belonged to the Agra Construction Company
Ltd. Agra i.e. to say the company was its subscriber. It is indeed
strange then how the petitioner, who is owner/subscriber of her
1999
------
Smt. Shobha
Chaturvedi
 Vs.
U.O.I. &
others.
------
Binod Kumar
Roy, J.
Onkareshwar
Bhatt, J.
2 All.] ALLAHABAD SERIES
137
Telephone No. 61743, can be compelled to clear the bills of
Telephone No. 73579 or else to face disconnection of her telephone.

12. In Salomon V. Salomon & Company 1897 Appeal Cases 22 it
was held to the effect that a Corporation in law is equal to a natural
person and has a legal entity of its own which is entirely separate
from that of its shareholders; it bears its own name and has a seal of
its own, its assets are separate and distinct from those of its
members, it can sue sued exclusively for its own purpose; its
creditors can not obtain satisfaction from the assets of its members;
and the liability of the members or shareholders is limited to the
capital invested by them. This legal position has been approved by
the Supreme Court in Tata Engineering and Locomotive Company
V. State of Bihar AIR 1965 SC 40.

13. In Kailash Prasad Modi V. Chief General Manager AIR 1994
Orissa 98 a Division Bench of the Orissa High Court after
considering Rules 2(pp) and 433 has held that disconnection of a
personal telephone of son of an erstwhile Director of a Company on
the ground of non-payment of dues of the Telephone of that
Company can not be disconnected applying Rule 433 on the ground
that the company is a juristic person and which it is the subscriber,
its liability is not transferred to its director and that in a Private
Limited Company the liabilities of the directors are limited and as
such they are not subscribers of the company's telephone. We are in
full agreement with the view expressed by the Orissa High Court.

14. There is no presumption in law that the property of a wife will
be presumed to be the property of the husband. It is also a settled law
that use by the husband of his wife's Stridhan property cannot
change the character of that property. (See Pratibha Rani Vs. Suraj
Kumar AIR 1985 SC 628) Thus, use of petitioner's telephone by her
husband is of no consequence.

15. Now we come to the Division Bench decision of our own High
Court, strongly relied upon by Sri Parekh. The relevant part of this
judgement is as follows:-

"3. It appears that petitioner no.2 Vijay Kumar Gupta
was a partner in the firm Lala Sukhdev Ram Rolling
Mills and there was a telephone connection No.
348597 in the name of that firm. Obviously, since the
petitioner No.2 was a partner in the said firm, he is
1999
------
Smt. Shobha
Chaturvedi
 Vs.
U.O.I. &
others.
------
Binod Kumar
Roy, J.
Onkareshwar
Bhatt, J.
THE INDIAN LAW REPORTS [1999
138
liable to pay the telephone bills of the firm since under
Section 25 of the Partnership Act each partner is
individually and severally liable.

 4.Learned counsel for the petitioner urged that the
other
telephone
connections
bearing
Nos.
370077,342619,340440 and 371440 are in the name of
petitioner and hence they could not have been
disconnected for the dues against the firm Lala
Sukhdev Ram Rolling Mills. We are not in agreement
with this submission."

X

X

X

"5. The language of Rule 443 is very clear. If a person
is in default in payment of telephone dues of on
telephone, and if he has any other telephone
connection (s) also, the order telephone connections
can also be disconnected in view of Rule 443. Since
the petitioner was liable to pay the dues in respect of
telephone no. 348597, hence, the other four telephone
connections could also be disconnected. If however,
the petitioner pays the telephone bill in respect of
telephone no. 348597, the other telephone connections
will be reconnected forthwith, provided he has paid
the bills for those telephone connections also."

16. In Bacha F.Guzadar Vs. Commissioner of Income Tax AIR
1955 SC. 74 the Supreme Court held that "Partnership is merely an
association of persons for carrying on business of partnership and in
law the firm name is a compendious method of describing the
partners. Such is, however, not the case of a company which stands
as a separate juristic entity distinct from shareholders." Apparently
the facts of M/s Ajay Iron and Steel Works are entirely different
from the instant case. Thus, this decision is of no help to the
Respondents.

17. The judgement rendered by the learned Single Judge of the
Madras High Court, referred to in the counter affidavit, has not been
shown to us and thus no comment of ours is required in this regard,
besides it is not binding on us

18. As admitted in the counter affidavit a Receiver has been
appointed in regard to the assets of the company. We fail to
1999
------
Smt. Shobha
Chaturvedi
 Vs.
U.O.I. &
others.
------
Binod Kumar
Roy, J.
Onkareshwar
Bhatt, J.
2 All.] ALLAHABAD SERIES
139
appreciate as to how then the petitioner can be coerced to pay the
outstanding bills of the company's telephone which is in 'custodia
legis of the Delhi High Court.

19. In our considered view the stand of the Respondents that they
can disconnect the telephone of the petitioner on account of nonpayment of the bills of the Company's telephone, is thoroughly
misconceived and unjustified and thus rejected. It is indeed pity that
such a course has been taken by the Respondents.

20. For the reasons aforementioned, we are of the view that the
petitioner is entitled to the reliefs prayed for.

21. .In the result, we allow this writ petition and quash the impugned
order and direction as contained in Annexure No. 5 and 11 by grant
of a writ of certiorari. The Respondents are commanded not to
disconnect the telephone of the petitioner provided the petitioner has
not defaulted or does not default in regard to payment of bills of her
aforementioned telephone number.

22. Since the petitioner has been unnecessarily and illegally coerced
by Respondent No. 2, she is entitled to costs, which we assess to the
tune of Rs.2,000/- only to be paid by Respondent No.2 to her.

23. The office is directed to hand-over a copy of this order within
one week to Sri Parekh, learned Standing Counsel for the Union, for
its intimation to and follow up action by the Respondents.

Petition Allowed.

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1999
------
Smt. Shobha
Chaturvedi
 Vs.
U.O.I. &
others.
------
Binod Kumar
Roy, J.
Onkareshwar
Bhatt, J.
1999
------
April, 9