1. These petitions under Art. 226 of the Constitution of India by the subscribers of a number of telephone connections, inter alia. raise questions as to whether the petitions are maintainable during the continuance of the emergency, and, if so, whether the petitions are belated and, thereforee, disentitle the petitioners to the relief to which they are otherwise entitled by virtue of the decision on the merits of the controversy 'by the Supreme Court.
2. The petitions were filed in the following circumstances. By an order made by the Administrator of Delhi on November 27, 1972 under S. 5 of the Indian Telegraph Act, 1985 (for short the Act) the Superintendent of Police was authorised to take temporary possession of certain specified telephones installed in the various rooms and cabins of the building known as Coronation Hotel, Fatehpuri. Delhi. The order was said to be sequel to the satisfaction of the Administrator that illegal forward trading in agricultural commodity was going on a large scale, through the instrumentality of these telephones, which was adversely affecting the price of goods, considered essential to the life of the community. A similar order was made on December 4, 1972 and some more telephone connections were specified in it. Pursuant to these orders telephone instruments belonging to various persons including the petitioners, were physic-ally removed from their premises by the Police. The orders were challenged by a number of persons and were quashed by this Court by an order of March 22, 1973 and all the instruments were restored irrespective of whether the action had been challenged, in the Court or not. it, however, appears that by two separate orders of November 28, 1972 and December 5, 1972, made by the General Manager, Delhi Telephones, under Rule 422 of the Indian Telegraph Rules, 1951 (for short, the Rules) the various telephones were disconnected. The orders were made with reference to the list of telephones which was supplied by the Delhi Administration to the General Manager. Some of the affected persons challenged the aforesaid orders of the General Manager and the impugned orders were quashed by a learned single Judge of this Court by an order made on September 26, 1973 while disposing of a number of petitions. The judgment was, however, reversed in appeal by an order of November 27, 1973. Some of the petitioners took the matter to the Supreme Court and their contention that the impugned orders were beyond the scope of Rule 422 of the Rules prevailed, By its judgment of December 17, 1975 in C.A. 1848 and 1849 of 1974, : 2SCR1060 , the impugned orders of the General Manager, Telephones, Delhi made on November 28, 1972 and December 5, 1972 were quashed and the respondents were directed to restore the telephone connections of the subscribers who were appellants before the Supreme Court. Pursuant to this judgment the telephone connections of the appellants before the, Supreme Court and perhaps of some others who were parties to the proceedings in this Court were restored. The pleas of the petitioners however, made soon after the judgment for their telephone connections being restored were, however. repelled presumably because these subscribers were not party to the proceedings in the Supreme Court or in this Court even though all the telephones had been disconnected by the aforesaid two common orders. The General Manager, Telephones apparently took the view that the Supreme Court had directed restoration of the telephone connections of the appellants before it and no obligation was, thereforee, cast on the General Manager to give effect to the order of the Supreme Court in relation to the others who though affected by the impugned orders, had not challenged the same. That is how the present petitions were filed in February, 1976.
3. Mrs. Shyamla Pappu, learned counsel for the Union conceded at the outset that if these petitions were to be tried on the merits the petitioners must succeed and the impugned orders must be quashed, if necessary, and the petitioners held entitled to the restoration of their respective telephone connections by virtue of the judgment of the Supreme Court referred to above. She, however, made a strong plea for the petitions being dismissed, without reference to the merits, on account of three preliminary objections.
4. In the first instance, it was contended that the petitions were not maintainable because S. 7-B of the Act provides for arbitration of all disputes and the petitioners failed to invoke the provisions to have the dispute with regard to the validity of the impugned orders adjudicated in the forum of arbitration. This contention is, however devoid of merit. It is true that S. 7-B of the Act provides for arbitration of disputes between the subscriber and the authorities, It is equally true that the provision constitutes an alternative remedy to a subscriber and the existence of such a remedy is one of the matters to be considered by this Court while exercising its jurisdiction under Art. 226 of the Constitution of India. The remedy cannot, however, be said to be either efficacious or appropriate in the peculiar circumstances of this case. The dispute between the parties was not an ordinary dispute that would arise between a subscriber and the authorities but was a dispute with regard to the competence of the authorities to invoke a certain Rule for the purpose of effecting disconnection of the telephones, The question whether the impugned orders were beyond the scope of Rule 422 has since been settled by the Supreme Court and 'no such dispute could, thereforee, be said to survive the judgment. Any arbitration would, thereforee, be unnecessary and the existence of such a remedy would not, thereforee justify refusal of relief to the petitioners, should they -be otherwise entitled to it.
5. It is next urged that the petitions must fail because they are belated. The impugned orders, runs the argument, were made in November and December 1972 and the petitions were filed in February 1976 after a lapse of almost four years. The rejection of the petitions on the ground of delay is sought to be further Justified for the reason that under the Rules the authorities were obliged to keep a disconnected line for a period of six months and if no claim with regard to it was made or pursued in appropriate proceedings they were entitled to allot the same to another subscriber on the expiry of such a period. It is urged that on the expiry of the aforesaid period the various telephone connections, forming subject matter of the petitions, have been allotted and the telephone connections as such are Rot available and on account of the heavy queue for allotment of new connections and shortages of equipment and material new lines are not available for allotment of fresh connections to the petitioners. It is further urged that, in any event, the petitioners have to take their turn along with the other prospective subscribers and are not entitled to any preferential treatment as they did not belong to any priority category.
6. On behalf of the petitioners it was urged that, having regard to the circumstances in which the petitions were filed the petitions could not be said to be belated and that in any event the historical background would not justify the refusal of relief to the petitions particularly having regard to the decision of the Supreme Court with regard to the validity of the impugned orders. It was further urged that until the decision of the Supreme Court the question as to the validity of the impugned orders had been a live issue forming subject-matter of the proceedings and it could not be said that the petitioners were seeking to enforce a stale claim. It was not disputed that none of the petitioners had been party to the earlier proceedings either in this court or in the Supreme Court, but it was nevertheless contended that that should not disentitle the petitioners to maintain the petitions or to the relief claimed by them because, having regard to the pendency of proceedings, involving the validity of the common orders, the petitioners, were justified in awaiting the outcome of the proceedings and the petitioners filed the present petitions only after the authorities declined to restore the connections in spite of the decision of the Supreme Court, Any proceedings by the petitioners earlier to the present petitions, it is argued, would not have improved matters and would have led to unnecessary multiplicity of proceedings involving a common question and validity of common orders. A contention was also raised that since the authorities had restored possession of telephones earlier to all the subscribers on the judgment of this Court in the petitions of some of them the petitioners presumed that the authorities would follow the same course in relation to the impugned orders. On behalf of some of the petitioners, it was urged, that these petitioners were not seeking to have the impugned orders quashed but were seeking an enforcement or implementation of the order of the Supreme Court quashing the impugned orders and the question as to whether the petitions were delayed or not must not thereforee, be decided with reference to the date of the decision of the Supreme Court or of the refusal of the authorities to implement it in relation to these petitioners -and that on that basis the petitions could not be said to be belated.
7. It is not disputed that there is no limitation provided for a petition under Art. 226 of the Constitution of India. It is well settled that there is neither an upper limit nor a lower limit for the commencement of these proceedings and, although the Court would not ordinarily entertain a stale claim, there is no hard or fast rule as to the circumstances in which a belated claim would not be allowed to be made in such proceedings and each case has to be decided on its own merits. It is equally well settled that delay in such cases is not necessarily fatal to a claim but is a matter that would be taken into account in modulating relief, particularly where the delay involves either the right of a third party or events have intervened which would otherwise not justify the grant-of whole or part-of any relief it is true that the impugned orders were made in November/December 1972 but, having regard to the fact that the proceedings in relation to the orders have been pending, at the instance of some of the aggrieved persons, till the decision of the Supreme Court in December 1975, and the proceedings involved the validity of common orders, it could riot be said that the claim of the petitioners is belated so as to justify the dismissal of the petitions without reference to the merits, particularly where the common orders affecting the petitioners, as indeed, the others, who were party to the earlier proceedings, had been quashed by the Supreme Court. The maintain ability of a petition and the sustainability of a relief are clearly distinguished. It may be that the delay would not entitle the petitioner to the relief claimed by the petitioner if the supervening circumstances would justify such a conclusion, but that would not be a ground for noneuiting the petitioners. The impact of the delay and the supervening circumstances on the relief to be granted to the petitioners would be considered while dealing with the question of relief.
8. It was then urged that the petitions were not maintainable in view of the suspension of the Fundamental Rights. According to the learned counsel for the respondents the impugned orders were challenged as being arbitrary and had indeed been quashed by the Supreme Court on that ground. Arbitrary executive action, proceeds the argument, is justiciable as an extension of the guarantee against hostile discrimination enshrined in Art. 14 of the Constitution of India. It is urged that Art. 14 is the repository not only of the fundamental right -against hostile discrimination but of all legal rights in relation to arbitrary executive action as well. It is contended that arbitrary action is justiciable in India only because it contained the germ of hostile discrimination and would, thereforee, militate against the fundamental guarantee of equality before the laws and the equal protection of the laws incorporated in Article 14 of the Constitution of India. With the suspension of Art. 14, it is urged, arbitrary executive action ceases to be justiciable and could not, thereforee, be called in question in any court of law. Taking a cue from the majority decision of the Supreme Court in what has come to be known as the Misa case Air 1079 Sc 1207 urged that, like Art. 21, Art. 14 of the Constitution was also the repository of all rights' in relation to equality before the law and the equal protection of the laws and arbitrary executive action and none of these rights survived the suspension of the fundamental rights and an arbitrary executive action, however, blatant, was not justiciable during the continuance of the emergency.
9. On the other hand, it is urged on behalf of the petitioners that, even though the petitioners are not entitled to invoke the fundamental right under Art. 14 of the Constitution to assail the impugned orders, the orders are still justiciable as constituting arbitrary executive action by virtue of the fundamental principle of the Rule of Law that all executive action must have legal sanction and that-neither the suspension - of tile fundamental rights nor the declaration of the emergency, that led to it, had the effect of abrogating the Rule of Law and it was, thereforee, still open to this Court to consider if the impugned orders were made without the authority of law or were otherwise arbitrary. The relief sought by the petitioners was also justified with reference to Art. 31 of the Constitution, which admittedly had not been suspended. It was urged that, even though courts had extended the scope of Art. 14 to cases in which the executive action was arbitrary, on the ground that such arbitrary action contained the germ of hostile discrimination Art. 14 was not exhaustive of the challenge that may possibly be thrown to arbitrary executive action. It was urged that arbitrary action was an antithesis of the Rule of Law and such action would be liable to be struck down under Art. 226 of the Constitution independently of Art, 14 of the Constitution in enforcing the Rule of Law, which survived the suspension of the fundamental rights and the proclamation of emergency. Lastly it was urged that the decision of the Supreme Court, quashing the impugned orders, even after the declaration of the emergency, and the suspension of the fundamental rights, is, in any event, an implied affirmation of the justifiability of arbitrary action in spite of the aforesaid declaration and the consequential suspension.
10. What then is the Rule of Law and what is the impact of the declaration of the emergency and the suspension of the fundamental rights on the Rule and what. if any, is the limitation of justifiability of arbitrary executive action in the present state of the law? The expression 'Rule of Law' is used in contradistinction to the rule of man. In the system in which Rule of Law prevails, it is the law that rules, even though through the instrumentality of man, and not the man independently of or above the law. In such a system all executive action must be based on legal sanction and there is no place for executive action that springs from individual whim, malice or caprice. Rule of Law, thereforee, has a built-in safeguard against arbitrary action. Arbitrary action is a. complete antithesis of the Rule of Law-1 justifiability of arbitrary executive action is, thereforee, an essential part of the concept of Rule of Law. Rule of law, however, is much wider in its scope and ambit than the fundamental rights. The Constitution empowers, and, thereforee, recognises the declaration of emergency in accordance with these provisions. It also recognises and, thereforee, authorises, within circumscribed limits, the suspension of all or any of the fundamental rights. Any such declaration or suspension, where it is resorted to in accordance with the provisions of the Constitution, is not outside the Constitution. It is part of the constitutional process. Neither the declaration of emergency nor the suspension of the fundamental right can, however, be destructive of the Rule of Law. Any of these provisions, however, may have the effect of limiting, during the operation of the emergency, the scope and operation of the Rule of Law. Neither the declaration of emergency nor the suspension of the fundamental rights, to my mind, has the effect of total abrogation of the Rule of Law in India. While the declaration of emergency, the consequential suspension of the fundamental rights and the recent constitutional changes in their wake have, to an extent, abridged the Rule of Law but all these do not -add up to an, abrogation of it. While I am not concerned in the present proceeding's with the extent to which the frontiers of the Rule of Law have been redefined and restricted by virtue of the constitutional and statutory provisions promulgated at the time of or after the declaration of the emergency, there is nothing in any of these provisions which completely abrogates the Rule of law or takes away all arbitrary executive action out of the area of judicial review. Here again, I am not concerned with the exclusion of certain matters, as indeed certain statutes, from the area of judicial review because I am not concerned either with these statutes or with such action. In my view, thereforee, an arbitrary executive action, which does not have the cloak of constitutional or statutory protection, by virtue of the constitutional -and statutory provisions, still remains fully justiciable in spite of the continuance of the emergency and the suspension of the fundamental rights. In the Misa case the Supreme Court was concerned with the justifiability by the Presidential order. There is nothing in the judgment of the Supreme Court in that case which may justify a conclusion to the contrary in the present case and learned counsel for the respondents was unable to point to any.
11. The contention that the judicial review of arbitrary action does not survive the suspension of the fundamental right under Art. 14 of the Constitution is wholly misconceived and, to my mind, unfortunate. It is true that in their anxiety to extend the area of judicial review under Art. 32 of the Constitution an attempt was made in some of the decisions of the Supreme Court, and I say with respect, to extend the scope of Art 14 not only to discriminatory laws or discriminatory executive action but to all arbitrary action on the ground that such arbitrary action contained the virus of hostile discrimination and would, thereforee, be within the mischief of the provision. It is unnecessary to go into this controversy any further and it is sufficient for my purpose to say that arbitrary executive action is justiciable independently of any of the fundamental rights because of the concept of the Rule of Law that every executive action must have legal sanction behind it. Whether or not arbitrary action would have the virus of discrimination and may thereforee, militate against protection clause of the Constitution it cannot be said that Art. 14 is exhaustive of the circumstances in which arbitrary executive action could be challenged, as has indeed been held by the Supreme Court in relation to Art. 21 and the corresponding right to personal freedom. it is no doubt true that Arts. 14 and 21 are both part of the Fundamental Rights Chapter of the Constitution but the similarity ends there. What has been stated by the Supreme Court? Art. 21 and the extent and foundation of the right of personal freedom is not necessarily true of Art. 14 in relation to arbitrary action. I am unable to see in the numerous decisions of the Supreme Court anything which may justify such a conclusion. In my view arbitrary executive action must stand on its own legs and must be tested at the touch stone of the Rule of Law except to the extent it has been taken out of the area of judicial review. Learned counsel for the respondents was unable to point to any constitutional or statutory provisions which may have placed all executive action beyond the pale of judicial review. Learned counsel for the Union did not place reliance on the recent amendment of Art. 226 of the Constitution of India apparently because it has yet to come into force. Even this amendment does not impair the extent of judicial review of executive action in that notwithstanding this amendment executive action would be justiciable, independently of the fundamental rights, in a regular civil action subject to ordinary civil appellate jurisdiction of this Court and of the civil -appellate jurisdiction of the Supreme Court. The amendment would effect a change in the forum for such review leaving the power of judicial review otherwise unimpaired. This contention must, thereforee, fail.
12. That leaves for consideration the question as to the relief to which the petitioners are entitled in the peculiar circumstances of this case. The impugn- orders have already been quashed 'by the Supreme Court even though at the instance of some of the aggrieved persons, who were given the consequential relief. Ordinarily, thereforee, where the foundation of action has ceased to exist this Court would have acted in aid of the decision of the Supreme Court and to have extended the benefit to the petitioners con the equal sistent with the aforesaid decision n , all because the relief sought by the petitioners would be tantamount to implementation of the decision of the Supreme Court but because grant of such a relief to the petitioners in identical circumstances would have been consistent with the decision of the Supreme Court. The delay on the part of the petitioners in assailing the impugned orders would not by itself be sufficient to disentitle the petitioners to the relief claimed by them. Certain circumstances have, however, supervened because admittedly the petitioners took no steps after the impugned orders were made and chose to remain mere interested spectators of the proceedings that were going on in this Court and the Supreme Court of India. It is no doubt true that the abstract question that the petitioners raised cannot be said to be a dead issue and was certainly a burning issue but the claim made by the petitioners certainly became stale because during the long period of almost 4 years the petitioners never raised it with the authorities with the result that the telephone connections, now sought to be restored, may have been allotted to other persons in need of the same. it may be, as was pleaded on behalf of the respondents, that the telephone connections had to be kept only for a period of six months unless there were proceedings pending in relation to them and had since been allotted to other subscribers and there can, thereforee, be no restoration of the connections. It may as well -be, as also pleaded on behalf of the respondents, that there is short-age of equipment and mate- and an ever increasing demand for fresh connections which makes it difficult for the authorities to give fresh connections to tile petitioners forthwith, even if -the connections, which were taken away, could not be restored. There may be some justification for the petitioners to contend that once some petitions were pending in the courts of which the validity of common orders were involved the authorities should have abstained from dealing with the connections, forming the subject matter of the it impugned orders, but the petitioners cannot altogether disown responsibility for the present state of affairs. They did not file proceedings in this Court nor did they make any claim on the authorities until the decision of the Supreme Court. It is, thereforee, difficult to ignore the supervening circumstances in awarding relief to the petitioners.
13. Having regard to all the circumstances I would, thereforee, accept the petitions, quash the impugned orders and direct that the telephone connections would be restored to the petitioners, if not -already allotted to other subscribers. if these connections have already been allotted fresh connections would be allotted to the petitioners, if such connections are available, failing which fresh connections would be allotted to the petitioners on a priority basis with liberty to the petitioners to immediate connections in areas where such connections are available with the option to have those connections transferred subsequently to the areas from which the telephones were disconnected, subject to availability.
14. In the peculiar circumstances there would be no costs.
15. Petitions allowed.