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Union of India Vs. Hukam Chand Shyam Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 172 of 1973
Judge
Reported in10(1974)DLT163
ActsTelegraph Rules, 1951 - Rule 422; Telegraph Act, 1885 - Sections 5
AppellantUnion of India
RespondentHukam Chand Shyam Lal
Advocates: S.S. Chadha,; P.N. Sethi,; B.N. Sen,;
Cases Referred(Maharashtra State Road Transport Corporation v. Balwant Motor Serviced) We
Excerpt:
.....connection or service was given. (4) on the 27th of november and on the 4th of december, 1972, the delhi administration issued two orders under section 5 of the indian telegraph act, 1885, each being in the following terms :whereas the administration of delhi is satisfied that illegal forward trading (satta) in agricultural commodities is being practiced 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 prices of supplies essential to the life of the community :si. - 1. the notifications of 27th november, 1972 and 4th december, 1972 were issued by the delhi administration after being satisfied on information that an emergency existed and that illegal forward trading..........person licensed under the act. (4) on the 27th of november and on the 4th of december, 1972, the delhi administration issued two orders under section 5 of the indian telegraph act, 1885, each being in the following terms :- 'whereas the administration of delhi is satisfied that illegal forward trading (satta) in agricultural commodities is being practiced 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 prices of supplies essential to the life of the community : si. floor no. room/cabin telephone no. name of no. no. subscriber then follow lists of subscribers of telephones, 44 in the notifications of 27th november, and 20 in the notification of 4th december. the two.....
Judgment:

V.S. Deshpande, J.

(1) TWENTY-TWO writ petitions were filed against orders disconnecting telephones of these petitioners under rule 422 of the Indian Telegraph Rules,1951,framed under section 7 of the Indian Telegraph Act, 1895. Jagjit Singh,J. allowed all the writ petitions and quashed the orders of disconnection of the telephones on a construction of rules 421 and 422 which read as follows:-

'RULE 421 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 aperiod which shall not except in emergent cases be less than 7 days, disconnect the telephone, and in such case, the subscriber shall be entitled for refund of rent for the unexpired portion of the period for which the connection or service was given. , Rule,422 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.'

(2) Learned Single Judge held on a reading of these rules that in an emergency giving notice before disconnection could be dispensed with, but reasons had to be given for the disconnection even under rule 422. According to the learned Judge, the orders of disconnection, did not contain the reasons for the disconnection. These orders were, thereforee, quashed and the telephone authorities were ordered to reconnect the telephones of the petitioners. These 22 appeals-by the Union of India have been filed against the orders of the learned Single Judge.

(3) It is necessary to understand the statutory and the factual background for the correct construction of the above mentioned rules and also of the passing.of the order so the disconnection. A telephone is included in the definition of the word 'telegpaph' in 3 (1) of the Indian Telegraph Act, 1895, Section 4 of the Act confers on the Central Government the exclusive privilege of the establishing, maintaining and working-telegraphs. Under section 7, the Central Government is empowered to make rules for the conduct of all or any telegraphs established, maintained and worked by the Government or by persons licensed under the Act. Such licenses may be granted by the Government under section 4 and may be revoked under sections On the occurrence of any public emergency or in the interest of public safety the Central or State Government may take temporary possession of any telegraph established, maintained and worked by any person licensed under the Act.

(4) On the 27th of November and on the 4th of December, 1972, the Delhi Administration issued two orders under section 5 of the Indian Telegraph Act, 1885, each being in the following terms :-

'Whereas the Administration of Delhi is satisfied that illegal forward trading (Satta) in agricultural commodities is being practiced 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 prices of supplies essential to the life of the community : SI. Floor No. Room/Cabin Telephone No. Name of No. No. Subscriber Then follow lists of subscribers of telephones, 44 in the notifications of 27th November, and 20 in the notification of 4th December. The two together include all the petitioners,

(5) The telephone numbers which were allegedly being used for illegal forward trading (Satta) and the subscribers in whose names they stood along with the room numbers and the floors on which the rooms were situated were listed in these two notifications. It is not disputed that the names of all the petitioners along with the telephone numbers which stood in their names as subscribers and the numbers of their rooms and floors in the Coronation Hotel building were contained in these two notifications.

(6) These two notifications were followed by two more orders issued by the General Manager of Telephones (to whom Divisional Engineer is subordinate) under rule 422 on the 28th November, 1972, and the 5th December, 1972 the former order being served on those petitioners whose names were included in the Delhi Administration notification of 27th November 1972 and the latter was served on those petitioners whose names were included in the Delhi Administration notification of 4th December, 1972. These orders were as follows :-

'The Delhi Administration has certified vide order No. F5(20)/ 72-C-HG dated 27th November, 1972 that public emergency exists and that continuation of 'Satta' at the premises of Coronation Hotel Fatehpuri, through the telephones is prejudicial to public interest. The undersigned in exercise of the powers conferred under Rule 422 of Indian Telegraphs Rule. 1951 hereby orders to disconnect the telephones and Non-Exchange Lines mentioned in the list supplied by Delhi Administration (copy attached). You are directed to take necessary action to disconnect the telephones. '

(7) The telephones of the petitioners and others were disconnected on the strength of the Delhi Administration notifications issued under section 5 of the Act Four writ petitions were filed by persons other than the present petitioners (respondent herein) challenging the validity of the disconnection of the telephones made under section 5 of the Act. These writ petitions, were allowed by a Division Bench of this Court in RoopLal Maker's v. Union of India, on the sole ground that action 1 2nd 1973(2) Delhi 130 under section 5 could be taken against a person licensed under the Act to establish, maintain and work a telegraph. It could not be taken against subscribers using the telephones as they were not licensees within the meaning of the Act. The question whether the disconnection of the telephones could be supported by action under section 422 of the Rules was left open. Hence the writ petitions before the learned single judge challenging the validity of the orders passed by the Divisional Manager (Telephones) under Rule 422 disconnecting the telephones.

(8) Shri M. C. Bhandare for Respondents 3 & 4 and Shri S. S. Chadha for the appellants advanced the following contentions in support of the appeal namely:-

1. The notifications of 27th November, 1972 and 4th December, 1972 were issued by the Delhi Administration after being satisfied on information that an emergency existed and that illegal forward trading was carried on the telephones of the petitioners.

2. The Divisional Manager (telephones) was entitled to rely on this material to disconnect the telephones without notice to the petitioners (respondents herein) 3. No reasons were required to be given for the disconnection under rule 422. Alternatively the orders of disconnection under rule 422 referred to the previous notifications by the Delhi Administration as to the existence of the emergency and the prejudice caused to the public interest by the continuation of 'Satta' transactions on the telephones of the petitioners and others and this amounted to reasons for the disconnection.

(9) Shri B. Sen for the petitioners/respondents met these contentions as follows:-

1. The meaning of 'emergency' in Rule 422 was restricted to a technical emergency, such as the break-down of telephone system. It did not include economic emergency unlike Section 5.

2. The orders in Rule 422 could not, thereforee, be issued as there was no technical emergency but at the most an economic emergency which existed at the relevant time ; and

3. Even if it is assumed that reasons did not have to be given under Rule 422 or that they had been given under the impugned orders, the orders of the Divisional Manager disconnecting the telephones were had as they were passed without issuing previous notices to the petitioners. Let us consider the contentions Serialtim.

(10) According to section 20 of the General Clauses Act, 1897, as a general Rule, expressions used in the rules framed under a statute would, have the same meaning as they have in the statute under which they are framed. Under section 5 of the Act the expression public emergent includes an economic emergency. This was so held by the Division Bench in Roop Lal's case. The expression used in Rule 422 is 'any emergency'. Rule 422 would, thereforee, include 'an emergency', which may be public or otherwise ; for the same reason it would include an emergency which may be economic or technical. Shri Sen argued that economic emergency could not be comprised in Rule 422. He distinguished Rule 422 from section 5 in the following respects :-

Action under section 5 could be taken against a licensee while action under Rule 422 could be taken against a subscriber. Action under section 5 could be taken by the Government while that under Rule 422 action could be taken by the Divisional Engineer (Telephones). Action under section 5 could be taken in public emergency for which nobody in particular can be blamed while action under Rule 422 could be taken either because some persons were to be blamed in which event notices to show cause would be given to them or because nobody could be blamed which would make the giving of notice unnecessary.

(11) We do not see how any of these distinctions go to show that the meaning of 'emergency' in Rule 422 is necessarily different from the meaning of ^emergency' in section 5. On the other hand, we are of the view that while section 5 is restricted in public emergency Rule 422 could apply to any emergency public or otherwise including an economic emergency. The mere fact that disconnection under Rule 422 may or may not last beyond a period of 7 days does not show that the emergency under Rule 422 would be brief and technical while that under sction 5 may be long and economic. On the other hand, emergency under both the provisions could be economic and comparatively brief.

(12) Shri Sen argued that Rule 421 laid down a general procedure to be followed in the disconnection of telephones. This procedure has two elements namely :- (i) giving of prior notice which is not to be less than 7 days except in emergent cases, (ii) reasons have to be recorded in writing for the disconnection. 13. Shri Sen argued that this procedure had to be followed in all cases. As this procedure had not been followed in the orders issued under Rule 422 the learned single Judge was of the view that the impugned order was had because reasons were not given therein for the disconnection of the telephones. On the other hand, Shri Chadha placed reliance on Rule 416, which is as follows :-

'THE Telegraph Authority may, if it considers it necessary to do so, refuse to comply with any application for a telephone or similar service or for alteration of any such existing service and may at any time withdraw either totally or partially any telephone or similar service provided under these rules'

(14) He went to the extent of arguing that the telephone authority may at any time withdraw either totally or partially any telephone or similar service provided under these rules. This extreme contention of Shri Chadha cannot be accepted. Rule 416 has to be read as a whole. When the latter part of the Rule is read with the earlier part of it, it is clear that there is a dialogue between a subscriber and the telephone authority which precedes action by the latter. It is this dialogue which makes it unnecessary that the telephone authority should give notice to the subscriber before a telephone facility is withdrawn In many other Rules notice is necessary because there is no previous dialogue between subscriber and the telephone authority. In the absence of a previous dialogue action to disconnect the telephone would be sudden and this would not usually be contemplated by the Rules.

(15) Reading Rules 421 and 422 together the occasions for disconnection of telephones fall into two classes, namely (a) those which arise out of an emergency when no notice or a notice shorter than 7 days is given under and (b) those which arise otherwise when a notice of at least 7 days has to be given. The impugned orders were obviously passed on the basis that an emergency existed. The orders issued by the Delhi Administration on 27 November, 1972 and 4th December, 1972 were based on information given to the Delhi Administration by the Forward Market Commission and by the police as stated at page 132 of the report of Roop Lal's case. We think we ought to take notice of this. fact inasmuch as the same notifications of the Delhi Administration were considered by the Division Bench in that case. The Authorities which were directly concerned with illegal forward trading were the Forward Market Commission whose statutory duties were to regulate the forward contract under the Forward Contracts (Regulation) Act, 1952 and the Police whose duty was to prosecute the offenders contravening provisions of the said Act. The Delhi Administration was satisfied that the information given by these Agencies was correct. They, thereforee, issued the notifications of 27th November; 1972 and 4th December, 1972. The telephone authorities were not concerned with the illegal forward trading. They were, thereforee, entitled to rely on the finding of the Delhi Administration that economic emergency existed of which we can take judicial notice and that the petitioners carried on illegal forward trading inview of the information given to Delhi Administration and to act under Rule 422.

(16) Shri Sen then contended that illegal forward trading was covered by Rule 427 under which telephone could be disconnected for illegal or improper use. Rule 427 is as follows :-

'A subscriber shall be personally responsible for the use of his telephone. No telephone shall beused 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.'

(17) It seems to us that it is the objectionable manner of the use of the telephone rather than the legal significance of the communication made there under which makes the use of the telephone illegal or improper under Rule 427. It is doubtful if a communication relating to forward trading which has been declared illegal under the Forward Contracts (Regulation) Act, 1952 would come under Rule 427. It is impossible for the telephone authority or any one else to decide the legal significance of telephone communication. Rule 427 is concerned only with the misuse of the telephone to disturb or irritate any person etc. contrary to any provision of law. Even if it is assumed that illegal forward trading could be a cause for disconnection of telephone under Rule 427 it cannot be said that telephone authority could not take action under Rule 422 if an economic emergency calls for such action.

(18) The important question is whether the action under Rule 422 could be taken with or without notice in relation to the petitioners. The expression 'with or without notice' used in Rule 422 shows that the telephone authority has been given the discretion to disconnect the telephone there under, either with or without notice. Such discretion has to be exercised reasonably. It would, thereforee, appear that if the conduct of the telephone subscriber is such that he could be made to explain it then ordinarily a notice should be given under Rule 422. on the other hand, if the telephone b being disconnected there under for some reason for which the telephone subscriber cannot be blamed, then notice would not be given there under. Shri Sen argued that the allegation that the petitioners used the telephones for illegal forward trading was denied by the petitioners in their writ petitions. The telephone department did not have any personal knowledge as to the purpose for which the telephones were used by the petitioners. They relied only on the orders issued by the Delhi Administration about the existence of the emergency and the illegal forward trading carried on by the petitioners and others, on these telephones. In these circumstances, we are of the view that the disconnection of the petitioners' telephones falls in between the two categories mentioned above namely those in which notice is to be given and those in which notice is not to be given. This middle category includes the conduct of the subscriber which is blame-worthy. At the same time, there are special reasons why notice cannot be given to the subscriber to bedisconnected. These special reasons are :- (1) The existence of an economic emergency; (2) Necessity of urgent action ; and (3) The existence of material showing that illegal forward trading had been carried on by the petitioners to the satisfaction of the Delhi Administration and, thereforee, to the satisfaction of the telephone authority. When adverse action has to be taken against a person, the normal rule is that he should be heard. For, the action is quasi judicial and, thereforee, the natural justice procedure has to be followed. For, civil consequences follow the administrative action against an individual. But the rights of an individual may vary greatly in their nature and in their strength. For instance a person may have a fundamental right which cannot even be waived. Notice may be indispensable to affect a fundamental right. A non fundamental legal right may also require hearing before it is affected. But the working of a telephone is the exclusive privilege of the Government. The subscriber has no legal right to continue the telephone connection. In this background the procedure qua the subscribers's telephone connection may not be quasi judicial and the nutural justice rule of hearing may not be applicable. In Punnen Thomas v. State of Kerala the majority of the full Bench held that when a person does not have a legal right against the Government, the Government can deal with him without giving him hearing and without giving reasons for their action against him. We greatly appreciate the view put forward by Mathew J. in his dissenting judgment showing that the distinction between a right possessed by an individual and a privilege conferred on him by the Government is rapidly disappearing and the rules of natural justice should apply equally to both. Never the less, we would respectfully agree with the following observetions of Lord Raciffe in Nakkuda Ali v. Jairatne, at page 77 Privy Council :-

'Can one not act reasonably without acting judicially It is not difficult to think of circumstances in which the controller might, in any ordinary sense of the words, have reasonable grounds of belief without having ever confranted the license holder with the information which is the source of his belief. It is a long step in the argument to say that because a man is enjoined that he must not take action unless he has reasonable ground for believiag something he can only arrive at that belief by acourse of conduct analogous to the judicial process.'

(19) In Ridge v. Baldwin, at page 78, Lord Reid agreed with the above in the following words :-

'I would agree that in this and other defense Regulation cases the legislature has substituted an obligation not to act without reasonable grounds for the ordinary obligation to afford to the person affected an opportunity to submit his defense.' We are inclined to think that the requirements of notice could be dispensed with under Rule 422 if the General Manager (Telephones) was satisfied that the telephones were being used by the petitioners for illegal forward trading and that such use was contrary to public interest in view of the existence of economic emergency, it is true that the satisfaction of the Divisional Manager was based on the orders issued by the Delhi Administration. But the question whether an emergency existed or not was particularly in the knowledge of the Delhi Administration. It is only the Government which can form an opinion about an existence of an economic emergency. A telephone authority cannot do so. Further the information whether the petitioners were using the telephones for illegal forward trading could be gathered more appropriately by the forward Market Commission and the Police whose duty is to regulate forward trading and to prosecute violation of the provisions of the Forward Contracts (Regulation) Act, 1952. The information collected by them had to be accepted by the Delhi Administration and also by the General Manager of Telephones. When such substantial material existed to show that the petitioners used the telephones for illegal forward trading the action by the General Manager could be based on such material and, thereforee, the Divisional Engineer rightly exercised the discretion to dispense with giving of notice under Rule 422.

(20) Shri Daljit Singh, another learned counsel for the respondents, argued that the Administration notifications issued by the Delhi Administration under section 5 of the Indian Telegraph Act were not published in the official gazette. They were not known to the petitioners. Further, copies thereof were filed in Roop Lal Makkar's case but they were not filed in the writ petitions which were decided by Jagjit Singh. J. He argued that we should not take note of these notifications. He said that had these notifications been filed by the Government in opposing their writ petitions before the learned single Judge, the respondents would have had an opportunity of showing that they did not use their telephones for illegal forward trading. In our view, this argument is not sustainable. The orders of the General Manager expressly referred to the orders of the Delhi Administration. It is true that only a part of the orders of the Delhi Administration is reproduced in the orders of the General Manager disconnecting the telephones. It is, however, stated in these orders that the dissconnection of the telephone was caused by the emergency. The impugned orders also refer to the same lists of subscribers which had been given in the orders of the Delhi Administration, dated 27th November, 1972 and 4th December 1972. Secondly, the orders of the Delhi Administration have been considered judicially by the Division Bench in Roop Lal's case. Thirdly, the appeals before us cannot be decided at all without reference to those orders inasmuch as the impugned orders by the General Manager of Telephones are expressly based on the orders of the Delhi Administration and, in fact. implement them. Acting under the principle underlying Order 41 rule 27 (b) Civil Procedure Code, 4 1964 Ac 40 thereforee, we allowed the appellants to file the Delhi Administration orders before us. Lastly, even if these orders had been filed by the appellants initially before the learned Single Judge, the petitioners/ respondents would not have been allowed to contest the truth of the recital made in the orders of the Delhi Administration. For, the discretion given to the General Manager by Rule 422 does not depend on the truthfulness or otherwise of the information given to the Delhi Administration by the Forward Market Commission and the police. The judicial review of the orders of the Divisional Engineer by this Court is restricted to the existence of the material on which these orders are based. The sufficiency of the material is not for this Court to judge. This rule is established by the Supreme Court decision in Barium Chemicals Ltd. v. Company Law Board, and subsequent decisions following it.

(21) Though the decision of the learned Single Judge turned on the ground that reasons for disconnection were not given in the impugned orders, Shri B. Sen did not support that pare of the decision before us. For, the reasons for the orders are apparent in the Delhi Administration Notifications which are relied upon therein. Unfortunately, only the first paras of those Notifications were contained in the impugned orders and may not have conveyed the reasons for the orders fully. If the Notifications are read fully, however, the reasons become clear. We have, thereforee, thought it fit to admit on the record those Notifications in full. Further, even when reasons are not contained in the impugned orders, they can be given subsequently and even at the time of judicial review. Full reasons were given in the counter affidavit of the Government. We have to take notice of the same. (Maharashtra State Road Transport Corporation v. Balwant Motor Serviced) We are satisfied, thereforee, that the impugned orders were not had for want of reasons.

(22) Shri Daljit Singh then stated that in the Delhi Administration Notifications under section 5, disconnecting of the telephone was to be only temporary. Though the orders of the Divisional Manager under Rule 422 do not say that the disconnection is temporary,they rely on the orders of the Delhi Adminstration. The telephone authority should, thereforee, treat these disconnections as temporary. They, may, thereforee, allow the petitioners to get back their connections if the Divisional Manager is satisfied that the emergency caused by the shortage in the supply of the commodities on which the forward trading was banned is over. If the emergency is over, then the petitioners would certainly be entitled to apply for getting back the telephone connections and as that was the reason for the disconnection, the telephone authority would certainly consider the application of the petitioners according to law and restore the connections if the legal requirements are satisfied.

(23) For the above reasons, the orders by the learned Single Judge under appeal are set aside and the appeals are allowed but without any order as to costs.


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