Case ID: 3390

Judgment:
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	 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 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 section 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 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 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 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 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.

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 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 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 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 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 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 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]