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 LPA No 17273 and Civil Writ No 237 of 1974 respectively
Hardyal Hardy section 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 section 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 roomscabins 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 section 51 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 F52072C 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 CW 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 s5 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 section 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
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 51 if properly construed does not confer unguided and unbridled power on the Central GovernmentState GovernmentSpecially 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 section
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 section 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 section 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 section 5 which made the Certificate of the CentralState 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
SR Appeals allowed


Summary:
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 section 51 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 article 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 appellantsrespondents 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 section 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 section 51 of the Indian Telegraphs Act 1895 if properly construed does not confer unguided and unbridled power on the Central GovernmentState GovernmentSpecially 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 s5 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 section 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 section 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 section 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