Case: Hukam Chand Shyam Lal Vs. Union Of India And Ors

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 inorder in similar terms was made on December 4, 1972 by the Administrator for taking over certain othersubscribers, 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 thro ugh 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 (copythe 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, 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, w as 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".Hence these appeals.

Reasoning: 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 thethis connection, it will not be o ut 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 ofthat 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 notis 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 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 t he 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.