http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: HUKAM CHAND SHYAM LAL

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT17/12/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

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]

JUDGMENT:      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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

    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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

    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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

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. 1