HUKAM CHAND SHYAM LAL versus UNION OF INDIA AND ORS.

HUKAM CHAND SHYAM LAL

UNION OF INDIA AND ORS.

December 17, 1975

[A. N. RAY, c. J., M. H. BEG, R. S. SARKARIA, AND P. N. SHINGHAL, JJ.]

J1idias Telegrc.phs Act, 1895-S. 5(1)-Read with Rule 422 of the ll!dian Telegraphs Rules, 1951-Whether statutory notice is 111a11datory-"Econo1i1ic Enzerl..{ency'' does not a111ou11t to ''public emergency" within the meaning of s. 5-Scope oj the words "A 11y emergency" i11 Rule 422 vis-a-vis the words "public emergency" in s. 5-Exercise of power of drastio 11ature in mode. other than the one proFided, is violative of the fundamelllal principles of natural justice. The appellants' telephones were disconnected and taken temporary posses-sion 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 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 Tele-graphs Rules, 1951. These orders were assailed by the appellants by writ petition under Art. 226 of the Constitution which was allowed by single Judge of the High Court, resulting in special appeal by the Union of India, which was accepted.

Negativing the contention Qf' the appellants/respondents viz.; that the impug•-ed aciion 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 contravention of Rules 421 and 422 which had to be read together.

(c) The reason given in the order to the effect that the appellant, were making illegal and improper use of the telephones by transmitting messages and information in regard to Salta business which had been banned, was irrelevant and extraneous to Rule 422.

(d) The emergency contemplated by Rule 422 is 1101 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 im-pugned 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 cons-trued, does not confer unguided and unbridled power on the Central Govern-ment /State Government /Specially Authorised Officer to take possession of any telegraph. [l 065 CJ

(2) Conditions pre-requisite for the exercise of power under this section and Rule 422 are :

(a) the occurrence of "public emergency'" not any other kind of emer-gency.

(b) recording of'. its satisfaction as to the existence of such ah 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" ha9 not been defined in the statute. Read as whole, s. 5, with the two phrases in sub-section (i) viz. "oc.currence of any public emergency" and "or in the interest of public safety", clarifies that "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, frienrlly 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 "public emergency" with view to taking further action under s. 5. [l 065 D-F]

( 4) "Economic Emergency" is not one of these matters expressly mentioned in the statute. Mere "economic emergency" may not necessarily amount to ".public emergency"' and justify action unde.r s. 5 unless it raises problems re• lating 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 emer-gency" under s. 5. The subjective satisfaction as to the existence of "any emergency" under Rule 422 is that of the Divisional Engineer, on rational basis on relevant material which may include any certificate or report of the appropriate Government as to the occurrence of "public emergency". The requirement of recording such satisfaction by the Divisional Engineer with reasons therefor, is implicit in the Rule. That will be minimal safcgua,rd 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 tq1ding (satta) in agricultural com-modities is being practised" amounts to ''improper or illegal use of telegraph9 and is not relevant consideration under Rule 422. The appropriate course to be followed was that laid. down in R. 427 read with Rr. 416 and 421, afte~ 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 power is required to be exercised by certain authority in certain way, it should be exercised in that manner or not at all, and other modes of performance. are necessariiy forbidden. It is all the more necessary to observe this rule where the power is of drastic nature and, its exercise in mode other than the one provided, will be violative of the funda-mental principle of natmal justice. Resort to the wrong and more drastic course .provided in rule 422, on ground which was not germane to an action under that rule violates the impugned order, particularly when it is manifest, in the instant ca<;e that the authority was influenced more by this ground and less, if at all, by the existence of "pub]ic emergency" certified by the State [1066 H, 1067 A-B]

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 LP.A. No. 172/ 73 and Civil Writ No. 237 of 1974 respectively.

llardyal Hardy, S. K. Mehta, K. R. Nagaraja and P. N. Puri for the Appellants.

Mrs. Shyamla Pappu and Girish Chandra for Respondents l-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 0£ 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 tele-phones installed in rooms and cabins of the building known as Coro-nation Hotel, Fatehpuri, Delhi. The order reads as ugder :

"Whereas the Administrator of Delhi is satisfied that illegal forward trading ( satta) in agricultural commodities is being practised on large scale through the following tele-D phones 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 afore-said premises through the telephones given above is prejudi-E cial 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. 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 ( l) of the Act for taking temporary possession of the subscribers' telephones.

The General Manager, Telephones, Delhi also, mad0 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 speci-men:

"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.

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 o_f 1973 in the High Court praying for writ to quash these orders of the General Manager and tor restoration of their telephone connections. This writ petition was heard by 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 special appeal to the appellate Bench of the High Court. Before the appelalte 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 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 in-formation 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 'public emergency' declared under s. 5, but is an emergency arising out of the br.eakdown of the tele-communications due to 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 autho-rity. Stress was laid, in this connection, on the fact that the word "emergency" in Rule 422 is not qualified by the prefix "public'', ins-tead, 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 "econo-mic" 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 "economi:: emergency" issued under s. 5, by the Delhi Administration. The Divisional Mana-ger was competent in exercise of his P:gWers 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 observa-tion that "the telephone authorities should treat these disconnections as temporary and allow. the petitioners to get back their connections, if the Ge'.leral Manager is satisfied that the emergency caused by the shortage m supply of the commodities on which the forward trading was banned, was over".

Hence these appeals.

The contentions canvassed before the High Court have been re-peated before us. Before dealing with the same, it will be worthwhile to have 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 Govern-ment or State Government or any officer spccial!y authorised in this behalf by the Central Governmerit or 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, main-tained 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 Centr::il Government or State Government or any officer specially autho-rised in this behalf by the Central Government or State Government may, if satisfied that it is nece5sary or expedient so to do in the interest of the sovereignly and integrity of India, the security of the StatG, 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, shafl 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 Govern-ment or State Government shall not be intercepted or der tained, unless their transmission has been prohibited under this sub-section."

The material rules are these :

"421. Disconnection ~ telephones.-Wherc the Divi-sional Engineer is satisfied for reasons to be recorded in writing that it is necessary to do so, he may, after giving the subscriber notice in writing for 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.

422. Right of disconnection in emergency.-The Di~i­sional Engi'11eer may, in the event of any emergency, dts-connect any subscriber, wit~ or without notice. In case s_uch disconnection exceeds penod of seven days, the subscriber shall be entitled to proportionate refund of rent.

427. Illegal or improper use of telephones.--A subs-criber shall be personally responsible for tl1e use of his 'telephone. No telephone shall be used to disturb or irritate any person or for the transmission of any message or commu-nication which is of an indecent or obscene nature or is cal-culated to annoy any person or to disrupt the maintenance of public order in any other manner contrary to any provision of Jaw."

Section 5 ( 1), if properly construed, does not confer unguided and unbriuled power on the Central Government/State Government/Spe-cially Authorised Officer to take possession of any telegraph. Firstly, the occurrence of 'public emergency' is the sine qua non for the exercise of power under this section. As preliminary step to the eKercise 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 pre-requisite for the exercise of power under this section, must be 'public emergency' and not any other kind of emergency. The ex-pression '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 whole. In sub-section (I) the phrase 'occurrence of any public emergency' 1s c·Jnnected with and is immediately followed by the phrase "or in the intere8ts of the public safety". These two phrases appear to take colour from each other. In foe Jirst part of sub-s. (2) these two phrases again occur in asso-ciation with each other, and the context further clarifies, with ampli-fication, that 'public emergency' within the contemplation of this seclion, 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 pre-vention of incitement to the commission of an offence. It is in the contcJ1.t of these matters that the appropriate authority ha8 to form an opi11ion with r,egard to the occurrence of 'public emergency' with 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 neces-sarily amount to '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 section of Part V under the group caption, "Telephone connections and other services". Rule 42 l requires the Divisional Engineer to record his satisfaction, supported by reasons, for the proposed discon'nection of the telephone. It further requires that authority to give notice in writing to the subscriber. Such notice shall ordinarily be of not less than seven

the seven

[1976] 2 s.c.R.

days. In emergent cases, the period of this notice can be less than seven days .. But even in emergent cases und.:r tl1is 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. Tue existence of "any emergency" to the satisfaction of the Divisional Engineer, appears to be necessary pre-requisite to the exercise of the power under this rule. It is significant that while s. 5 speaks of the occurrence of 'public emergency', satisfaction with regard to the existence of which is to be recorded by the appropriate authority men-tioned 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 in 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 occur-rence of 'public emergency'. The requirement of recording such satisfaction by the Divisional Engineer, with reasons therefor, is impli-D cit in the Rule. That will be 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 'public emergency', stood deleted and replaced by 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 'exis-tence 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 ground which is not relevant consideration under this Rule. This ground as recited in the Delhi Administration Notification of Decem-ber 4, 1972 and reproduced in the impugned order of the General Manager, Telephones, is that illegal forward trading (satta) in agri-cultural commodities is being practised in 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 power is required to be exercised by . certain authority in certain way, it should be exercised in that manner or -not at all, and all other modes of performances are neces-sarily forbidden. It is all the more necessary to observe this rule ,

where power is of a· drastic nature and its exercise in mode other tl1an the one provided, will be violative of tbe 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 tbey had to give, in consonance with the principles oi 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 ground , which was not germane to an action under that Rule, vitiates the im-J pugned order, particularly when it is manifest that in making the { impugn·ed order, the General Manager was influenced more by this ' ground and less, if at all. by the existence of 'public emergency' certi-, It, _-,.fled by the Delhi Administration.

For the foregoing reasons we accept these appeals, allow the writ petitions, quash the impugned orders and direct t11e res]!londents to restore the telephone connections to each of these appellants. How-ever in the circumstances of the cases we make im order as to costs.

Appeals allowed.

L277SCT/76-2500c-3-8-76-GIPF.