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Baroda Goods Transport Service (Through their Constituted Attorney Shri Suresh Dahyabhai Shah) Vs. the Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR597
AppellantBaroda Goods Transport Service (Through their Constituted Attorney Shri Suresh Dahyabhai Shah)
RespondentThe Union of India (Uoi) and anr.
Cases ReferredIn Ridge v. Baldwin
Excerpt:
.....mentioned that the disconnection will continue till the proclamation of emergency is in force, the period of emergency, though indefinite in duration, is still definite in itself, for, it is of necessity going to come to an end some time or other. the terminal point in respect of the disconnection of the petitioner's telephone could not thus be said to be unspecified inasmuch as the petitioner has been clearly given to understand that it would last up to a particular point of time, namely, termination of the emergency. the highest or greatest course or extent or stretch of time may be measured in terms of years, months or days, as well as in terms of the occurrence of an event or the continuance of a state of affairs. having regard to the object of the enactment of a provision like rule..........their behalf before the court that the disconnection was effected under rule 20 of the defence of india rules, 1971 under the order dated february 20, 1976 issued by the general manager, gujarat tele-communication circle to whom the powers were duly delegated and that the disconnection would remain in force till the emergency was lifted. in view of this statement, notice was discharged and the petition was rejected.5. the petitioner thereupon preferred the present letters patent appeal. the division bench, which heard the appeal for admission was of the view that in view of the decision in hukam chand v. union of india : [1976]2scr1060 , tile petition could not have been sufflmarily rejected arid that rule nisi was required to be issued. the division bench accordingly admitted the.....
Judgment:

P.D. Desai, J.

1. The appellant, who will hereinafter be referred to as the petitioner, is a partnership firm and it carries on business of transport of goods since 1950. Its area of operation is Western India and it has its head office at Baroda.

2. Two persons, namely, Dahyabhai Himatlal Shah and his brother Vadilal Himatlal Shah, were the managing partners of the petitioner firm. Both these persons were detained under MISA in September 1974 and at present their detention is continued under COFEPOSA. However, since their detention, the business of the partnership firm is looked after by one Suresh Dahyabhai Shah, who is the son of one of the managing partners and their constituted attorney.

3. There is a telephone connection at the petitioner-firm's head office at Baroda since last about twelve years. By a letter dated February 26, 1976 (Exhibit 'A'), the petitioner was informed by the Divisional Engineer, Telephones, Baroda Division, Baroda that its telephone connection to Baroda Auto Exchange was temporarily disconnected with immediate effect and that no rental would be charged for the period of disconnection if the disconnection exceeded seven days. The petitioner alleges that upon the receipt of this communication on March /, 1976, inquiries were made with the authorities as to why the telephone was disconnected and how long the disconnection was to continue. According to the petitioner, it was informed that the disconnection was for an indefinite period and that the action was taken under the orders of the superior authorities. On March 6, 1976 the petitioner wrote a letter (Exhibit 'B') to the Divisional Engineer requesting him to restore the connection. Since the request was not complied with and the disconnection continued, the petitioner filed the present petition on March 8, 1976 against the Union of India and the Divisional Engineer, Telephones, Baroda for a writ quashing and setting aside the order of the concerned authorities disconnecting the telephone and for a direction to restore the telephone connection.

4. When the petition reached preliminary hearing before the learned Single Judge, notice was directed to issue to the respondents. The respondents appeared in response to the notice and a statement was made on their behalf before the Court that the disconnection was effected under Rule 20 of the Defence of India Rules, 1971 under the order dated February 20, 1976 issued by the General Manager, Gujarat Tele-communication Circle to whom the powers were duly delegated and that the disconnection would remain in force till the emergency was lifted. In view of this statement, notice was discharged and the petition was rejected.

5. The petitioner thereupon preferred the present Letters Patent Appeal. The Division Bench, which heard the appeal for admission was of the view that in view of the decision in Hukam Chand v. Union of India : [1976]2SCR1060 , tile petition could not have been sufflmarily rejected arid that rule nisi Was required to be issued. The Division Bench accordingly admitted the appeal arid instead of directing a remand, it issued rule on the Original petition and directed that the petition should be set down for early hearing before the Division Bench itself. It is under these cir cumstances that the matter has reached hearing before us today.

6. On behalf of the petitioner, the impugned action was challenged on the following grounds: (1) the power under Rule 20 of the Defence of India Rules, 1971 which is an emergency power could be exercised only for the purpose of carrying out the objects of the Defence of India Act, 1971 and that the exercise of power under the said rule, in the facts and circumstances of the instant case, was illegal and ultra vires, (2) the disconnection, of telephone under Rule 20 could only be for a 'specified period' and since, in the present case, the period was not specified or at any rate it was not specified in terms of days, month or years, the impugned order was beyond the scope of the said rule; (3) the competent authority was bound to observe the principles of natural justice before taking action under Rule 20 since the power conferred by the said provision was drastic in nature affecting civil rights of the citizens; and (4) the power under Rule 20 could have been exercised only by the Director General of Posts and Telegraphs or any person authorised by him in that behalf and that since there was nothing to show that the Divisional Engineer, Baroda Division was competent to take the action in question, the disconnection was without power, authority and jurisdiction.

7. On behalf of the respondents, M.H. Patel, A.D.I. (Phones) in the office of the General Manager, Telephones, has filed an affidavit-in- reply. The case of the respondents as set out therein is that the telephone in question was disconnected in exercise of the powers under Rule 20 as per the orders of the competent authority for a temporary period, namely, so long as the emergency declared in pursuance of the Presidential notification dated June 26, 1976 continued and that the action was taken after considering all relevant aspects and in view of the fact that the partners of the petitioner firm (two of whom were detained under COFEPOSA) were suspected of carrying on smuggling activities. The respondents con tended that the power under Rule 20 was an emergency power and, there fore, it was not necessary either to give hearing to the person likely to be affected by the exercise of such power or to give reasons in the order made by the competent authority under the said Rule.

8. In order to decide the validity of the rival contentions, reference will have to be made to the relevant statutory provisions. The long title and preamble of the Defence of India Act, 1971 shows that it has been enacted because the President had declared by a proclamation under Clause (1) of Article 352 of the Constitution that a grave emergency exists whereby the security of India is threatened by external aggression and internal disturbances and also because it was necessary to provide for special measures to ensure the public safety and interest, the defence of India and civil defence and for the trial of certain offences and for matters connected therewith. Section 3 which finds place in Chapter 11 , which is entitled ' Emergency Powers' confers rule making power on the Central Government. In so far as it is relevant, the said section reads as under:

3. Power to make rules. (1) The Central Government may, by notification in the Official Gazette, make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community.

(2) Without prejudice to the generality of the powers conferred by Sub-section (1), the rules may provide for, and may empower any authority to make orders providing for, all or any of the following matters, namely:

xxx xxx xxx(19) prohibiting or regulating the use of postal, telegraphic or telephonic services, including the taking possession of such services, and the delaying, seizing, intercepting or interrupting of postal articles or telegraphic or telephonic messages;xxx xxx xxx

In exercise of the power conferred by Section 3, the Central Government has framed the Defence of India Rules, 1971 and Rule 20 thereof, which is relevant, reads as under:

20. Control of telephones and telegraphs -(1) The Director General of Posts and Telegraphs or any person authorised by him in this behalf, may by order, (a) direct,--

(i) xxx xxx

(ii) that any subscriber's telephone connection to any exchange shall be cut off for such period as may be specified;

xxx xxx

Now, it would appear that Rule 20 is enacted under Clause (19) of Sub-section (2) of Section 3 which authorises the Central Government to frame rules for prohibiting or regulating the use of postal, telegraphic or telephonic services. It is obvious that the rules enacted under Sub-section (2) of Section 3 in order to be valid must have a real connection with the purposes prescribed under Sub-section (1) of Section 3 since the rule-making power under Sub-section (2) is merely illustrative of the matters pertaining to which rules could be made. Any rule enacted under Sub-section (2) must, therefore, be read as subject to the limitations as are prescribed in Sub-section (1) and such rule could not add to the power conferred by Sub-section (1). The conclusion, therefore, is inevitable that though the power conferred by any rule framed under Sub-section (2) might prima facie appear to be wide, its exercise must be generally related to the purposes for which Defence of India Act is enacted and also to the purposes which are specifically referred to in Sub-section (1). The power conferred under the rule would, therefore, be exercisable subject to the limitations laid down in Sub-section (1), that is to say, for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community. It is only in order to achieve one of these purposes that the various powers conferred under the rules on different authorities could be exercised by them. This is a limitation inherent and implicit in the very enactment of the rules and all authorities are, therefore, bound to observe it,

9. Bearing in mind this background, we shall now consider whether in the facts and circumstances of the case, it could be said that the power has been validly exercised. As earlier pointed out, the case of the respondents is that the telephone in question has been disconnected under the orders of the competent authority after taking into consideration all the relevant aspects and particularly because it appeared that the partners of the peti tioner firm were suspected of carrying on smuggling activities. Reliance has also been placed on the fact that two of the managing partners of the petitioner firm are already under detention under the COFEPOSAA. The power under Rule 20 to effect disconnection could be exercised if it is necessary or expedient to do so for maintaining supplies and services essential to the life of the community. It hardly needs to be said that smuggling activities eat into the vitals of the economy of the country and its ultimate effect is to affect supply of essential commodities and maintenance of services essential to the life of the community. If the competent authority, therefore, found that a telephone connection installed at the place of the business of the petitioner firm had to be disconnected because its partners were suspected of carrying on smuggling activities, it could hardly be contended that the exercise of power under Rule 20 was not justified or was beyond the scope of the power conferred upon the competent authority. The power conferred by Rule 20 read in the light of Sub-section (1) of Section 3 of the Defense of India Act for maintenance of supplies and services essential to the life of the community is very wide and any order providing that the telephone connection installed at the business premises of a person who is suspected of carrying on smuggling activities might be disconnected for a specific period would be certainly justified by the very width and ambit of such power. The first contention urged on behalf of the petitioner must, therefore, be rejected as being without any substance.

10. The second contention with regard to the non-specification of the period during which the disconnection was to continue is equally ground less. The respondents have now made it clear that the disconnection will remain in force till the emergency declared by the Presidential notification dated June 26, 1976 continues. The question then is whether the specification of such time-limit could be said to comply with the condition laid down in Rule 20 or whether it was necessary under the said rule for the competent authority to specify the period of disconnection in terms of days, months or years. It requires to be noted that the word 'specifies' means 'to mention particularly, to make specific'. The word 'period' means 'a course or extent of time; time of duration'. Therefore, the expre ssion 'for such period as may be specified' would mean for the extent or stretch of time, which is particularly and specifically mentioned. In the present case, it has been clearly mentioned that the disconnection will continue till the proclamation of emergency is in force, The period of emergency, though indefinite in duration, is still definite in itself, for, it is of necessity going to come to an end some time or other. The terminal point in respect of the disconnection of the petitioner's telephone could not thus be said to be unspecified inasmuch as the petitioner has been clearly given to understand that it would last up to a particular point of time, namely, termination of the emergency. As earlier stated, the impugned action is taken in exercise of emergency powers to prevent activities prejudicial to the maintenance of supplies and services essential to the life of the community and in the very nature of things the period of its duration could not be specified in terms of days, month or years. In our opinion, therefore, when the respondent's state that the disconnection will continue till the emergency lasts, they could be said to have indicated that the disconnection is for a specified period.

11. Reference may be made in this connection to the decision of the Supreme Court in Fagu Shaw v. State of West Bengal : 1974CriLJ486 . The question in that case was whether the Parliament was bound to prescribe the maximum period of detention under Article 22(7)(b) of the Constitution in order that the proviso to Article 22(4)(a) might operate and whether, by Section 13 of the Maintenance of Internal Security Act, 1971, after its amendment by Section 6(d) of the Defense of India Act, 1971, the Parliament had in fact prescribed the 'maximum period.' Section 13 of the MISA as amended by Section 6(d) of the Defense of India Act provides that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12 shall be twelve months from the date of detention or until the expiry of the Defense of India Act, 1971, whichever is later. The argument was that the maximum period of detention required to be prescribed in any law providing for preventive detention under Article 22(7)(b) connotes a definite period measurable in terms of years, months or days and that no period can be said to be a maximum period unless it is possible to predicate its beginning and end in terms of years, months or days. The Supreme Court in its majority opinion in paras 23 and 25 negative this argument in the following words:

Therefore, the words 'maximum period' mean the highest or greatest course or extent or stretch of time. The highest or greatest course or extent or stretch of time may be measured in terms of years, months or days, as well as in terms of the occurrence of an event or the continuance of a state of affairs. We do not think it necessary that Parliament should have fixed a period in terms of years, months or days in order that it might be 'the maximum period' for the purpose of Article 22(7)(b). Seeing that the object of the law of preventive detention is to prevent persons from acting in a manner prejudicial to the maintenance of internal security, or of public order, or of supplies and services essential to the community or other objects specified in Entry 9 of List I of the Seventh Schedule, we tee great force in the contention of the learned Attorney General that 'the maximum period' in Article 22(7)(b) can be fixed with reference to the duration of an emergency. In other words, as the object of preventive detention is to prevent persons from acting in a manner prejudicial to the maintenance of internal security, or public order or supplies or services essential to the community or other objects specified in Entry 9 of List I, the power to detain must be adequate in point of duration to achieve the object. And, how can the power be adequate in point of duration, if it is insufficient to cope with an emergency created by war or public disorder or shortage of supplies essential to the community, the duration of which might be incapable of being predicted in terms of years, months or days even by those gifted with great prophetic vision? If 'the maximum period' can be fixed only in terms of years, months or days, certainly it would have been open to Parliament to fix a long period in Section 13 and justify it as 'the maximum period'. It would be straining out the gnat but swallowing the camel if any body is shocked by the fixation of the maximum period of detention with reference to the duration of an emergency but could stomach with complacency the fixation of maximum period, say, at fifteen or twenty years. Whether the fixation of 'maximum period' in terms of years or in terms of events is reasonable in a particular circumstance is a totally different matter.

The reasoning and approach adopted in the abovementioned decision completely support the view, which we are taking. Having regard to the object of the enactment of a provision like Rule 20 and the circumstances under which it is enacted, there is no reason to hold that the specified period for which disconnection of a telephone may be ordered cannot be fixed with reference to the duration of the emergency. In this view of the matter, the second contention urged on behalf of the petitioner must also be rejected.

12. The third submission on behalf of the petitioner was that disconnection of telephone is a matter involving civil consequences and that an order directing disconnection could not have been made unless the principles of natural justice were complied with by the competent authority and an opportunity to show cause was furnished to the petitioner. We are unable to accept this contention. In the first place, there is no material on record from which it could be ascertained as to whether the telephone was installed at the business premises of the petitioner under the OYT scheme or under any other scheme and it is, therefore, difficult to find out as to what is the exact nature of the right affected and consequences ensuing there from. In the next place, even assuming that temporary disconnection of a telephone line, whatever be the terms of its installation, affects civil rights of the citizen, the question still is whether in the context of an emergency legislation like Rule 20, it would be proper to read into the relevant provision by implication the necessity complying with rules of natural justice. Considerable reliance was placed on behalf of the petitioner on the decision in Hukam Chand's case (supra). The said decision, in our opinion, does not help the petitioner. It was there held that the disconnection of telephones in the facts and circumstances of that case could have been made only under Rule 427 read with Rules 416 and 421 of the Telegraph Rules, 1952. Under Rule 421 the Divisional Engineer has the power of disconnecting a telephone upon being satisfied for reasons to be recorded in writing that it is necessary to do so after giving the subscriber concerned a notice in writing for the prescribed period. Under Rule 427 a subscriber is personally responsible for the use of his telephone and no telephone is to 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. It is in the context of an action which could have been taken under rules of this nature that the Supreme Court observed that the power of a drastic nature like the one exercised in that case could have been resorted to only after following the principles of natural justice after giving to the subscriber an opportunity to explain his conduct. It would appear, therefore, that those observations were made in a case where under the relevant statutory rule itself the necessity of giving a hearing was laid down and where the disconnection had to be resorted to for improper use of the telephones in question for illegal forward trading. In the case before us, the situation is entirely different. As stated earlier, the action here is taken under Rule 20(a)(ii) which is an emergency provision because the rule has been made under Sub-section (2) of Section 3 which finds place in the chapter which confers emergency powers on the Central Government to make rules under the Defense of India Act, 1971. The rules of natural justice which the Courts rightly infer in relation to a non-emergency legislation could not be lightly read into provisions of this nature. In England it is well-settled that war-time emergency or even ordinary legislation may show from its subject-matter or from the circumstances under which it was enacted, or both, that a duty to act judicially is not imposed, a conclusion which may be strengthened by other provisions of the legislation (vide Liversidge v. Anderson (1942) Appeal Cases 206 and Ridge v. Baldwin and Ors. (1954) Appeal Cases 40). In Ridge v. Baldwin, Lord Reid in his opinion stated that the principle of audi alteram partem goes back many centuries in English law and appears in a multitude of judgments of Judges of the highest authority. However, wartime legislation stood on a different footing. The Parliament knew quite well that the Courts had an inveterate habit of importing the principles of natural justice into the provisions authorising administrative interference with private rights. Under the circumstances, the Parliament must be held to have authorised them to do it unless a particular Act showed a contrary intention. He then proceeded to state:

It seems to me to be a reasonable and almost an inevitable inference from the circumstances in which Defense Regulations were made and from their subject-matter that at least in many cases, the intention must have been to exclude the principles of natural justice. Wartime secrecy alone would often require that, and the need for speed and general pressure of work were other factors. But it was not to be expected that anyone would state in so many words that a temporary abandon-not of the rules of natural justice was one of the sacrifices which war conditions required - that would have been almost calculated to create the alarm and despondency against which one of the regulations was specifically directed And I would draw the same conclusion from another fact. In many regulations there was set out an alternative safeguard more practicable in war time - the objective test that the officer must have reasonable cause to believe whatever was the crucial matter.

13. It would appear, therefore, that in defense regulations on account of the requirement of secrecy, need for speed and general pressure of work, the applicability of the rules of natural justice has been held to be dispensable in many cases and the alternative safeguard of objective test that the concerned officer must honestly apply before taking the action has been insisted upon If we bear in mind this development of law in England, it would appear that in the context of emergency legislation, such as the rule with which we are concerned, having regard to its subject-matter as well as to the need of swift action and secrecy and in view of the fact that at present even the enforcement of certain fundamental lights is suspended it would be improper to read into such provision the necessity to comply With the rules of natural justice. Telephones and telegraphs are the quickest means of communication and in times of war and emergency, a speedy action taken on the basis of secret information regulating their use, including temporary disconnection of the telephone of a subscriber, in the interest of the defense of the country or public safety or maintenance of public order and supplies or services essential to the life of the community, might be a matter of paramount importance. In the very nature of things, therefore, prior notice and hearing in such a case would be impossible and it would frustrate the very purpose for which the power is required to be exercised. The risk to the citizen involved by dispensing with the compliance of rules of natural justice is mitigated by providing for alternative safeguards. The power under the rule in question is conferred on a high officer like the Director General of Posts and Telegraphs or his delegate who would ordinarily be an officer of high rank and status. The power can only be exercised for the purposes set out in the Defense of India Act and more particularly and specifically mentioned in Sub-section (1) of Section 3 of the said Act The competent authority must honestly and rationally arrive at the requisite satisfaction on relevant material that it is necessary or expedient to exercise such power in a given case and it is only then that an action could be validly taken under such a provision. It is, therefore, not an unregulated power but a power, which is confined and defined. Besides, the exercise of power does not result in permanent deprivation of the connection. It merely operates to bring about disconnection for a specified period. In our opinion, therefore, having regard to the nature of the legislation, its subject-matter, the circumstances under which the power has to be exercised, the conferment of the power on a high authority who has to exercise it on its being honestly and rationally satisfied about the existence of the circumstances for the exercise of such power and the limited duration of the disconnection, the requirement of observing rules of natural justice before taking action under Rule 20(a)(ii) cannot be read into the said statutory provision. It would, therefore be not necessary to issue prior notice and to give hearing before passing any order made there under disconnecting the telephone of a subscriber temporarily. The third submission made on behalf of the petitioner must therefore, be rejected.

14. The last contention is wholly without substance. It has nowhere been alleged in the petition that the order has not been passed by the competent authority. Had such an allegation been made, the respondents would have had an opportunity to point out that a person duly authorised had directed the impugned action to be taken. This is a question of fact and unless the necessary facts were pleaded, it would not be open to the petitioner to raise such a contention at the present stage Besides the respondents halve already come out with a case in their reply that the action was taken by the competent authority. No affidavit-in-rejoinder' has been filed challenging this submission. Under the circumstances, even on merits, this submission is without any substance.

15. These were the only ground urged at the hearing and since there is no substance in any of them, the appeal fails and the petition is rejected. The appeal is dismissed and rule on the petition is discharged with no order as to costs in the circumstances of the case.


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