Hukam Chand Shyam Lal Vs. Union of
India & Ors [1975] INSC 321 (17 December 1975)
SARKARIA, RANJIT SINGH 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 therefore, 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]
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.
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