PETITIONER:
HUKAM CHAND SHYAM LAL
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT17/12/1975
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SHINGAL, P.N.
CITATION:
1976 AIR 789 1976 SCR (2)1060
1976 SCC (2) 128
ACT:
Indias Telegraphs Act, 1895-S. 5(1)-Read with Rule 422
of the Indian Telegraphs Rules, 1951-Whether statutory
notice is mandatory-"Economic Emergency" does not amount to
"public emergency" within the meaning of s 5- Scope of the
words "Any emergency" in Rule 422 vis-a-vis the words
"public emergency" in s. 5-Exercise of power of a drastic
nature in a mode other than the one provided, is violative
of the fundamental principles of natural justice.
HEADNOTE:
The appellants' telephones were disconnected and taken
temporary possession of by the Superintendent of Police,
North District and the General Manager, Telephones
respectively on various dates acting under the instructions
of the Administrator, Delhi, who was personally satisfied
that illegal forward trading (satta) in agricultural
commodities was being practised on a large scale by them
through their telephones. The Orders were purportedly made
under s. 5(1) of the Indian Telegraphs Act, 1895, and Rule
422 of the Indian Telegraphs Rules, 1951. These orders were
assailed by the appellants by a writ petition under Art. 226
of the Constitution which was allowed by a single Judge of
the High Court, resulting in a special appeal by the Union
of India, which was accepted.
Negativing the contention of the appellants/respondents
viz.; that the impugned action of disconnection and
temporary taking over of the telephones was bad because:-
(a) No statutory notice was ever given as required
under Rules 421 and 422.
(b) The Divisional Engineer did not apply his mind and
record his own satisfaction about the existence of "any
emergency" and as such there was a contravention of Rules
421 and 422 which had to be read together.
(c) The reason given in the order to the effect that
the appellants were making illegal and improper use of the
telephones by transmitting messages and information in
regard to Satta business which had been banned, was
irrelevant and extraneous to Rule 422.
(d) The emergency contemplated by Rule 422 is not the
same as "public emergency" declared under s. 5, but "any
emergency", the existence of which was to be established to
the satisfaction of the Divisional Engineer and not any
extraneous authority, the appellate Bench of the High Court
held, (i) that, the requirement of notice could be dispensed
with under Rule 422 by the General Manager Telephones, if he
was satisfied that the telephones were being used by the
subscribers for illegal forward trading (ii) that, such use
was contrary to public interest in view of the existence of
"economic" emergency (iii) that the words " any emergency"
in Rule 422 includes an "economic emergency" and (iv) that,
on the basis of the certificate in regard to the existence
of an 'economic emergency" the Divisional Manager was
competent to pass the impugned order in exercise of his
powers under Rule 422.
While allowing the appeals by special leave the Court,
^
HELD : (1) S. 5(1) of the Indian Telegraphs Act, 1895,
if properly construed does not confer unguided and unbridled
power on the Central Government/State Government/Specially
Authorised Officer to take possession of any telegraph.
[1065 C]
1061
(2) Conditions pre-requisite for the exercise of power
under this section and Rule 422 are:
(a) the occurrence of a "public emergency" not any
other kind of emergency.
(b) recording of its satisfaction as to the existence
of such an emergency by the Government or the Authority
concerned on grounds germane to an action under the rule
[1065 C-D]
(3) The expression "public emergency" has not been
defined in the statute. Read as a whole, s.5, with the two
phrases in sub-section (i) viz. "occurrence of any public
emergency" and "or in the interest of public safety",
clarifies that a "public emergency", within the
contemplation of that section, is one which raises problems
concerning the interest of public safety", the sovereignty
and integrity of India, the security of the State, friendly
relations with foreign States or public order, or the
prevention of incitement to the commission of an offence. It
is in the context of these matters that the appropriate
authority has to form an opinion with regard to the
occurrence of a "public emergency" with a view to taking
further action under s. 5. [1065 D-F]
(4) "Economic Emergency" is not one of these matters
expressly mentioned in the statute. Mere "economic
emergency" may not necessarily amount to a "public
emergency" and justify action under s. 5 unless it raises
problems relating to the matters indicated therein. [1065 F-
G]
(5) Notice under Rule 421 cannot be dispensed with. The
scope of the words "any emergency" in Rule 422 is wider than
the expression "public emergency" under s. 5. The subjective
satisfaction as to the existence of "any emergency" under
Rule 422 is that of the Divisional Engineer, on a rational
basis on relevant material which may include any certificate
or report of the appropriate Government as to the occurrence
of a "public emergency". The requirement of recording such
satisfaction by the Divisional Engineer with reasons
therefor, is implicit in the Rule. That will be a minimal
safeguard against arbitrary exercise of the drastic power.
[1066 A, C-D]
(6) The ground for disconnection and taking over
temporary possession of the telephones viz., 'that illegal
forward trading (satta) in agricultural commodities is being
practised" amounts to "improper or illegal use of telegraphs
and is not a relevant consideration under Rule 422. The
appropriate course to be followed was that laid down in R.
427 read with Rr. 416 and 421, after giving an opportunity
to explain their conduct, in consonance with the principles
of natural justice. [1066 F-G]
(6) It is well-settled that where a power is required
to be exercised by a certain authority in a certain way, it
should be exercised in that manner or not at all, and other
modes of performance are necessarily forbidden. It is all
the more necessary to observe this rule where the power is
of a drastic nature and, its exercise in a mode other than
the one provided, will be violative of the fundamental
principle of natural justice. Resort to the wrong and more
drastic course provided in rule 422, on a ground which was
not germane to an action under that rule violates the
impugned order, particularly when it is manifest, in the
instant case that the authority was influenced more by this
ground and less, if at all, by the existence of "public
emergency" certified by the State [1066 H, 1067 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1848
and 1849 of 1974.
Appeals by Special Leave from the Judgment and Orders
dated the 27-11-1973 & 23-5-74 of the Delhi High Court in
L.P.A. No. 172/73 and Civil Writ No. 237 of 1974
respectively.
Hardyal Hardy, S. K. Mehta, K. R. Nagaraja and P. N.
Puri for the Appellants.
1062
Mrs. Shyamla Pappu and Girish Chandra for Respondents
1-3.
R. N. Sachthey for Respondents 4-5.
The Judgment of the Court was delivered by
SARKARIA, J. This judgment will govern the disposal of
these two appeals which arise out of a common judgment of
the High Court of Delhi dismissing the writ petitions filed
by the appellants and others, under Article 226 of the
Constitution.
On November 27, 1972, the Administrator of Delhi, made
an order under s. 5 of the Indian Telegraphs Act. 1885 (for
short, the Act) authorising the Superintendent of Police,
North District, to take temporary possession “until further
orders” of certain specified telephones installed in rooms
and cabins of the building known as Coronation Hotel,
Fatehpuri, Delhi. The order reads as under:
“Whereas the Administrator of Delhi is satisfied
that illegal forward trading (satta) in agricultural
commodities is being practised on a large scale through
the following telephones installed in the rooms/cabins
in the premises of the Coronation Hotel, Fatehpuri,
Delhi, thereby affecting adversely the price of the
supply essential to the life of the community.
Whereas public emergency exists and the
Administrator, Delhi is satisfied that the continuation
of satta at the aforesaid premises through the
telephones given above is prejudicial to public
interest and as such it is necessary to take temporary
possession of all the aforesaid telephones from the
premises in question.”
Another order in similar terms was made on December 4,
1972 by the Administrator for taking over certain other
telephones.
Four subscribers, who were affected by these orders
challenged their validity by writ petitions in the High
Court. A Bench of the High Court allowed those petitions and
quashed the orders in question on the ground that resort
cannot be had to s. 5(1) of the Act for taking temporary
possession of the subscribers’ telephones.
The General Manager, Telephones, Delhi also, made
orders on November 28, 1972 and December 5, 1972, purporting
to act under Rule 422 of the Indian Telegraphs Rules, 1951,
(for short, the Rules) for disconnecting the telephones and
non-exchange lines. One of those orders, dated November 28,
1972, may be extracted as a specimen:
“The Delhi Administration has certified vide order
No. F5/20/72/C-HG dated 27-11-1972 that public
emergency exists and that continuation of “satta’ at
the premises of Coronation Hotel Fatehpuri through the
telephones is pre judicial to public interest.
1063
The undersigned in exercise of the powers
conferred under rule 422 of Indian Telegraphs Rules,
1951 hereby orders to disconnect the telephones and
Non-exchange Lines mentioned in the list supplied by
Delhi Administration (copy attached).”
Thereupon the appellants filed C.W. 470 of 1973 in the
High Court praying for a writ to quash these orders of the
General Manager and for restoration of their telephone
connections. This writ petition was heard by a learned
Single Judge of the High Court who allowed the same and
quashed the impugned orders and further directed that the
telephones be restored to the appellants.
Aggrieved, the Union of India and other respondents
carried a special appeal to the appellate Bench of the High
Court. Before the appellate Bench it was contended that the
impugned action was bad because: (a) no prior notice in
regard to the same was given to the appellants; (b) the
Divisional Engineer did not apply his mind and record his
own satisfaction about the existence of any emergency and as
such there was a contravention of Rules 421 and 422 which
had to be read together; (c) the reason given in the
impugned order, to the effect, that the appellants were
making illegal and improper use of their telephones inasmuch
as they were transmitting messages and information in regard
to satta business which had been banned, was irrelevant and
extraneous to Rule 422 under which the impugned action has
been purportedly taken; (d) the emergency contemplated by
Rule 422 is not the same as a ‘public emergency’ declared
under s.5, but is an emergency arising out of the breakdown
of the telecommunications due to a technical defect, labour
trouble, vis major, fire or the like, the existence of which
was to be established to the satisfaction of the Divisional
Engineer and not any extraneous authority. Stress was laid,
in this connection, on the fact that the word “emergency” in
Rule 422 is not qualified by the prefix “public”, instead,
the words used are “any emergency”.
The High Court negatived these contentions. In its
opinion, the requirement of notice could be dispensed with
under r. 422 if the General Manager, Telephones, was
satisfied that the telephones were being used by the
subscribers for illegal forward trading and that such use
was contrary to public interest in view of the existence of
“economic” emergency. It further held that the words “any
emergency” in Rule 422 include an ‘economic emergency’, and
on the basis of the certificate in regard to the existence
of an “economic emergency” issued under s. 5, by the Delhi
Administration. The Divisional Manager was competent in
exercise of his powers under Rule 422 to pass the impugned
orders. In the result, it set aside the decision of the
learned Single Judge and dismissed the writ petition with
the observation that “the telephone authorities should treat
these disconnections as temporary and allow the petitioners
to get back their connections, if the General Manager is
satisfied that the emergency caused by the shortage in
supply of the commodities on which the forward trading was
banned, was over”.
1064
Hence these appeals.
The contentions canvassed before the High Court have
been repeated before us. Before dealing with the same, it
will be worthwhile to have a look at the relevant statutory
provisions.
Section 5 of the Act provides:
“(1) On the occurrence of any public emergency, or
in the interest of the public safety, the
Central Government or State Government or any
officer specially authorised in this behalf
by the Central Government or a State
Government may, if satisfied that it is
necessary or expedient so to do, take
temporary possession (for so long as the
public emergency exists or the interest of
the public safety requires the taking of such
action) of any telegraph established,
maintained or worked by any person licensed
under this Act.
(2) On the occurrence of any public emergency or
in the interest of the public safety, the
Central Government or a State Government or
any officer specially authorised in this
behalf by the Central Government or a State
Government may, if satisfied that it is
necessary or expedient so to do in the
interest of the sovereignty and integrity of
India, the security of the State, friendly
relations with foreign States or public order
or for preventing incitement to the
commission of an offence, for reasons to be
recorded in writing, by order, direct that
any message or class of messages to or from
any person or class of persons or relating to
any particular subject, brought for
transmission by or transmitted or received by
any telegraph, shall not be transmitted, or
shall be intercepted or detained, or shall be
disclosed to the Government making the order
or an officer thereof mentioned in the order:
Provided that press messages intended to be
published in India of correspondents accredited to the
Central Government or a State Government shall not be
intercepted or detained, unless their transmission has
been prohibited under this sub-section.”
The material rules are these:
“421. Disconnection of telephones.-Where the
Divisional Engineer is satisfied for reasons to be
recorded in writing that it is necessary to do so, he
may, after giving the subscriber a notice in writing
for a period which shall not except in emergent cases
be less than 7 days, disconnect the telephone, and in
such case, the subscriber shall be entitled to refund
of rent for the unexpired portion of the period for
which the connection or service was given.
1065
422. Right of disconnection in emergency.-The
Divisional Engineer may, in the event of any emergency,
disconnect any subscriber, with or without notice. In
case such disconnection exceeds a period of seven days,
the subscriber shall be entitled to proportionate
refund of rent.
427. Illegal or improper use of telephones.-A
subscriber shall be personally responsible for the use
of his telephone. No telephone shall be used to disturb
or irritate any person or for the transmission of any
message or communication which is of an indecent or
obscene nature or is calculated to annoy any person or
to disrupt the maintenance of public order in any other
manner contrary to any provision of law.”
Section 5(1), if properly construed, does not confer
unguided and unbridled power on the Central Government/State
Government/Specially Authorised Officer to take possession
of any telegraph. Firstly, the occurrence of a ‘public
emergency’ is the sine qua non for the exercise of power
under this section. As a preliminary step to the exercise of
further jurisdiction under this section the Government or
the authority concerned must record its satisfaction as to
the existence of such an emergency. Further, the existence
of the emergency which is a pre-requisite for the exercise
of power under this section, must be a ‘public emergency’
and not any other kind of emergency. The expression ‘public
emergency’ has not been defined in the statute, but contours
broadly delineating its scope and features are discernible
from the section which has to read as a whole. In sub-
section (1) the phrase ‘occurrence of any public emergency’
is connected with and is immediately followed by the phrase
“or in the interests of the public safety”. These two
phrases appear to take colour from each other. In the first
part of sub-s. (2) these two phrases again occur in
association with each other, and the context further
clarifies, with amplification, that a ‘public emergency’
within the contemplation of this section is one which raises
problems concerning the interest of the public safety, the
sovereignty and integrity of India, the security of the
State, friendly relations with foreign States or public
order or the prevention of incitement to the commission of
an offence. It is in the context of these matters that the
appropriate authority has to form an opinion with regard to
the occurrence of a ‘public emergency’ with a view to taking
further action under this section. Economic emergency is not
one of those matters expressly mentioned in the statute.
Mere ‘economic emergency’-as the High Court calls it-may not
necessarily amount to a ‘public emergency’ and justify
action under this section unless it raises problems relating
to the matters indicated in the section.
Rules 421 and 422 occur in serial order in a section of
Part V under the group caption, “Telephone connections and
other services”. Rule 421 requires the Divisional Engineer
to record his satisfaction, supported by reasons, for the
proposed disconnection of the telephone. It further requires
that authority to give a notice in writing to the
subscriber. Such notice shall ordinarily be of not less than
seven
1066
days. In emergent cases, the period of this notice can be
less than seven days. But even in emergent cases under this
Rule, the notice cannot be dispensed with altogether.
Rule 422 empowers the Divisional Engineer to disconnect
any subscriber ‘in the event of any emergency’ with or
without notice. The existence of “any emergency” to the
satisfaction of the Divisional Engineer, appears to be a
necessary pre-requisite to the exercise of the power under
this rule. It is significant that while s. 5 speaks of the
occurrence of a ‘public emergency’, satisfaction with regard
to the existence of which is to be recorded by the
appropriate authority mentioned in that section, Rule 422
purports to empower the Divisional Engineer to take action
thereunder in the event of “any emergency”. The scope of the
words “any emergency” in Rule 422 is apparently wider than
the expression “public emergency” used in s. 5. It follows
that the satisfaction is regard to the existence of “any
emergency” under Rule 422 is to be of the Divisional
Engineer. He has to arrive at such satisfaction rationally
on relevant material which may include any certificate or
report of the appropriate Government as to the occurrence of
a ‘public emergency’. The requirement of recording such
satisfaction by the Divisional Engineer, with reasons
therefor, is implicit in the Rule. That will be a minimal
safeguard against arbitrary exercise of this drastic power.
In this connection, it will not be out of place to mention
here, that sub-section (2) of s. 5 which made the
Certificate of the Central/State Government conclusive proof
as to the existence of a ‘public emergency’, stood deleted
and replaced by a different provision, at the time when the
impugned action was taken in this case. That is an
additional reason for holding that it was the Divisional
Engineer who had to form his own opinion as to the existence
of an emergency, before taking action under r. 422.
Having heard the Counsel on both sides, we are of
opinion, that the impugned Order suffers at least from one
apparent defect of jurisdiction.
Assuming that the General Manager was competent to make
an order under Rule 422, the power has been exercised mainly
on a ground which is not a relevant consideration under this
Rule. This ground as recited in the Delhi Administration
Notification of December 4, 1972 and reproduced in the
impugned order of the General Manager, Telephones, is that
illegal forward trading (satta) in agricultural commodities
is being practised in a large scale through the telephones
in question at the premises of Coronation Hotel, Fatehpuri.
In other words, the impugned action has been taken chiefly
on the ground that the appellants have been making improper
or illegal use of these telephones. This being the position,
the appropriate course to be followed was that laid down in
Rule 427 read with Rules 416 and 421. But this was not done.
It is well settled that where a power is required to be
exercised by a certain authority in a certain way, it should
be exercised in that manner or not at all, and all other
modes of performances are necessarily forbidden. It is all
the more necessary to observe this rule
1067
where power is of a drastic nature and its exercise in a
mode other than the one provided, will be violative of the
fundamental principles of natural justice. Now, in the
present case, if the telephones of the appellants were to be
disconnected on the ground of misuse, then they had to give,
in consonance with the principles of natural justice,
opportunity to the appellants to explain their conduct
before taking action under Rule 427 read with Rules 416 and
421. Resort to the wrong and more drastic course provided in
Rule 422, on a ground which was not germane to an action
under that Rule, vitiates the impugned order, particularly
when it is manifest that in making the impugned order, the
General Manager was influenced more by this ground and less,
if at all, by the existence of ‘public emergency’ certified
by the Delhi Administration.
For the foregoing reasons we accept these appeals,
allow the writ petitions, quash the impugned orders and
direct the respondents to restore the telephone connections
to each of these appellants. However in the circumstances of
the cases we make no order as to costs.
S.R. Appeals allowed.
1