S.N Shankar, J.:— This order will dispose of Civil Writs 1209/72, 1253/72, 1254/72 and 1290/72. Petitioners in all these petitions have assailed the order dated November 27, 1972.December 4, 1972, passed by the Administrator under section 5 (1) of the Indian Telegraphs Act, 1885 (hereafter called “the Act”) taking over temporary possession of the telephones installed in their names in various rooms of Coronation Hotel Building, Fatehpuri, Delhi. The questions involved in all the petitions being similar, they were heard together. For purposes of this order, facts of civil writ petition No. 1209/72 may be stated:
Roop Lal Makkar, petitioner in C.W 1209/72 carries on business of brokerage in vegetable oil and cloth. He is also the Vice Chairman of Om Oils and Oilseeds Exchange Ltd., which owns the building known as ‘Coronation Hotel Building, Fatehpuri, Delhi-6’. He had two telephone connections under ‘Own Your Telephone Scheme’, with telephone Nos.: 262306 and 269983. Both the telephones were installed in room No. 21 of the aforesaid building. On November 28, 1972 at about 12.30 P.M respondent No. 4. A. K. Singh, Superintendent of Police, North District. Delhi came to the premises of the petitioner and disconnected both the telephones on the basis of the order dated November 27, 1972 passed by the Administrator under section 5 (1) of the Act.
The petitioner contends that this order is illegal and contrary to law for reasons stated in the petition and may, therefore, be quashed and order or direction in the nature of mandamus be issued directing the respondents to restore possession of both the telephones. He has further prayed that section 5 of the Act be declared ultra vires of Articles 14, 19 (1) (f) and (g) and 31 of the Constitution of India. The latter prayer, however, was not pressed at the time of arguments.
Respondents to the petition are Delhi Administration, Administrator Delhi, Union of India and A. K. Singh as respondents 1 to 4 respectively.
The petition is contested. It is stated in the counter affidavit that the petitioner, amongst others, practised on a large scale, through the telephones aforesaid, illegal forward trading (satta) in agricultural commodities thereby adversely affecting prices of the supplies essential to the lives of the community. The Administrator, it is stated, was satisfied that the continuation of this forward trading was prejudicial to the public interest and there was a public emergency calling for action under section 5 (1) of the Act. Along with an earlier affidavit filed in answer to the show-cause notice, the respondents placed on record copy of a confidential D.O letter dated November 17, 1972 from the Director, Forward Markets Commission to Delhi Administration complaining that according to information received by the Forward Trade Commission and investigated by them, illegal forward trading in banned commodities was being indulged in with the help of the telephones, the particulars of which were enclosed with the D.O These particulars, according to another D.O of the same date from the Superintendent of Police to Delhi Administration, were obtained as a result of raid conducted by the representatives of the Forward Trade Commission, the Delhi Police and Telephones. The respondents also filed with this affidavit a copy of the note on illegal forward trading in certain banned agricultural commodities and the action taken by the police in this regard. The note, amongst others, stated that so far 45 criminal cases under Forward Contracts (Regulation) Act had been registered and proceedings in court against persons responsible for the infringement had been taken but because of lacunae in the law on the subject this was not sufficient to prevent the offenders from continuing their illegal trading. The note stated that these persons, to escape detection, had adopted code numbers for various banned commodities to carry on the illegal trading. This trading, the note continued, was concentrated in the Coronation Hotel Building aforesaid. In order to completely eliminate or at least to curb the activities of these traders to some extent, the note said, a more concerted effort not only on the part of the police but also on the part of the Income-tax Forward rade Commission and P & T Department was called for. A reference was also made in the note to a specific complaint made by Shri S. M. Banerjee, M.P, as far back as October 12, 1971, regarding this illegal forward trading in Delhi. Apart from this, the counter affidavit also stated that certain complaints had been lodged against the petitioner with the police. All these facts, it was maintained, were taken into account by the Administrator and he was satisfied in the circumstances that there existed a public emergency and it was necessary and expedient to take temporary possession of the telephones mentioned in the impugned order and hence the order was passed.
Shri Arora, appearing for the petitioner (in C. W. 1209/72), urged that assuming the facts stated by the respondents to be correct, they did not constitute an “emergency” within the meaning of section 5 (1) of the Act to sustain the impugned order. The emergency envisaged, he contended, was to be an emergency of a physical nature and not purely an economic emergency. In any event, he said, the emergency envisaged was to be an emergency related to the purposes of the Act only and not an emergency independent of the working of the Act. In support of his submissions, he referred to Maxwell in Interpretation of Statutes, 1962 Edition, pages 79, 116 and 183 and argued that this expression should be so construed as to avoid the meaning that was not intended by the Legislature. Reference was also made by the learned counsel to observations in Biswambhar Singh and others V. State of Orissa and another (A.I.R 1954 Supreme Court 139) (1) where the expression “intermediary” in Orissa Estates Abolition Act, 1951 was in the background of the provisions of that Act and to Romesh Thapper v. The State of Madras (A.I.R 1950 Supreme Court 124) (2) where the expression ‘public safety’ was construed to mean security of the public or their freedom from danger.
After hearing Shri Arora and Shri Bhandare, appearing for the respondents, we are unable to sustain these submissions.
Section 5 of the Act as amended by act 38 of 1972 reads as under:—
5. “ (1) 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, 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 interests 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 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.”
According to Webster's New International Dictionary, “emergency” means “an unforeseen combination of circumstances which calls for immediate action”. According to the Concise Oxford Dictionary, it means “sudden juncture demanding immediate action”. The continued rise in prices of commodities essential to the life of the community is a situation arising from unforeseen combination of circumstances. In view of the conditions that prevail in the country, it certainly needs an immediate action to curb if to prevent further misery and ruination. To our mind, the situation does legitimately constitute a “public emergency” as envisaged in sub-section (1) of section 5 of the Act. It is not possible in the present complex state of our society, with action and interaction of diverse forces at work, to confine the concept of emergency to physical state of seige, war or pestilence only as contended by Shri Arora. A grave situation calling for immediate action can as well be the result of interaction of economic forces only and this would as much be an emergency according to the ordinary meaning of this expression as an emergency referable to physical causes.
We are also not impressed by the argument of Shri Arora that the emergency envisaged in section 5 has reference only to the purposes of the Act. There is nothing in this section or any other provision of the Act to indicate such a limiting intention on the part of the Legislature. On the contrary, reference to sub-section (2) of section 5 unmistakably shows that this expression has been used in this section in a much wider sense. Sub-section (2) provides that on the occurrence of any public emergency where the Central Government was satisfied that it was necessary “in the interests 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”, it could, in terms of the sub-section, intercept, detain or prohibit the transmission of any message or class of messages to or from any person or class of persons or relating to any particular subject. The public emergency envisaged in this sub-section thus has a much wider content and is not confined to the purposes of the Act. There is no justification therefore to give a narrow interpretation to this expression in sub-section (1) of the same section. Reference to the general rules of interpretation in ‘Maxwell on Interpretation of Statutes’ or to the observations in Biswambhar Singh's case, in these circumstances, is of no relevance. In Romesh Thappar's case (supra) cited by the learned counsel, the expression construed by the Court was ‘public safety’ and it was observed that even though it ordinarily meant security to the public or their freedom from danger, but anything which tended to save public health will also be covered by this expression. ‘Public safety’ has not the same connotation as ‘public emergency’. Besides, the expression ‘public emergency’ has been used in section 5 (1) in addition to ‘public safety’. Observations in Romesh Thappar's case in relation to public safety also for this reason do not help the learned counsel for the interpretation of the expression ‘public emergency’.
Shri Arora then contended that rise in prices was a gradual process and the status of a public emergency could not be ascribed to it. Emergency, no doubt, is often sudden but suddeness is not the determining factor. It can also be a result of continuing process that has lasted for sometime if it has led to a situation that calls for immediate action. In Larchbank and British Petrol (1943 Appeal Cases 299) (3) cited by Shri Arora in support of his submission that the emergency had to be a sudden event, Lord Wright on page 307 of the report while construing the expression “emergency” occurring in Admiralty instructions that were before him in that case said:
“.. . Emergency is often sudden in its onset, although I do not attach so much importance to the element of suddeness. It is in any case not a mere punctum temporis. It is an abnormal state of danger which may last for some time.”
It is, therefore, not necessary that the situation calling for action must necessarily have cropped up suddenly in order to be an emergency. In fact, it is the case of the respondents that the Legislature enacted Forward Contracts (Regulation) Act to deal with illegal transaction in banned commodities and action was duly taken under this Act but this was not found sufficient to check the illegal trade and the resultant rise in prices and hence the emergency. We do not see why such a situation would not be an emergency calling for immediate action. The argument, therefore, that the prices had been rising since sometime past is of no consequence.
Shri Arora then urged that forward trading in banned commodities was not the sole factor leading to rise in prices and the Administrator was not justified in invoking powers under section 5 (1) of the Act. The argument has no merits. The learned counsel was unable to seriously contest that large scale speculative trading led to creation of artificial demands and this tended to inflate prices in the market in respect of the commodities to which it related. So long, therefore, as this trading was a contributory cause to the rise in prices the action taken cannot be assailed on the ground that it was not the sole factor.
Shri Arora next argued that section 5 authorised only a temporary taking over of the telephones. He urged that neither the impugned order nor anything else on the record showed that the possession of the telephones had been taken by the Administrator for any limited period of time. The order, he said, was vitiated for this reason. Section 5 (1) undoubtedly authorises only a temporary possession of the telephones “for so long as the public emergency exists”. This does postulate that the authorities acting under this provision should indicate the duration for which the temporary possession was being taken. Shri Bhandare, appearing for the respondents, however, stated at the bar and also filed a supplementary affidavit dated February 22, 1973 that temporary possession of the telephones taken in pursuance of the impugned order shall continue till April 30, 1973 only by which time the prices were expected to stabilise. This fully meets the objection. It would not be just and fair, in these circumstances, to interfere with the order on this ground exercise of the writ jurisdiction in face of this clarification.
Shri Arora then contended that the Forward Contracts (Regulation) Act contained provisions to deal with offences under the Act. Section 15 of the Act, he said, did not prohibit forward contracts in banned commodities but sought to regulate them and then section 20 prescribes penalties for contravention of the provisions of this Act. There, thus already being a law to regulate the trading, the learned counsel said, recourse to section 5 (1) of telegraph Act was uncalled for. The Forward Contracts (Regulation) Act, 1952, it is true, in a sense, regulates trading in banned items but no parallel provision in the Act was shown to us conferring powers on authorities to make any order in regard to the telephones through which the illegal trading was carried on. Powers conferred by Indian Telegraphs Act, 1885, in any case, are independent of the powers conferred by Forward Contracts (Regulation) Act. The provisions of the latter Act, therefore could not be a bar to stand in the way of enforcement of the provision of the former Act.
Lastly, the learned counsel urged that there was no evidence before the Administrator to show that the situation amounting to public emergency had arisen or that petitioner was carrying on ‘satta’ business in banned commodities through the telephones in question. The impugned order for this reason, he maintained, was vitiated. This submission also is without merits. The D.O letter from the Director of Forward Markets Commission to Delhi Administration (Annexure R. 2), D.O letter from Superintendent of Police, North District to Delhi Administration (Annexure R. 3), letter from Inspector General of Police to Chief Secretary, Delhi Administration (Annexure R. 4) as well as the note annexed to it setting out in detail the various facts mentioned in the counter, as also D.O letter from Deputy Inspector General of Police to Chief Secretary, Delhi Administration (Annexure R. 5) which have all been referred to in detail in the earlier part of this judgment were before the Administrator. All this constituted evidence which was relevant to the question about which the Administrator had to satisfy himself. The plea, in these circumstances, that there was no evidence before the Administrator when he passed the impugned order is wholly without substance.
Both Shri Daljit Singh (appearing for the petitioner in Civil Writ No.: 1290/72) and Shri Arora then contended that the order was passed mala fide. The action, they said, was taken in great haste with a view to counter the impression created in public mind, as a result of news item that appeared in the issue of weekly ‘BLITZ’ dated November 25, 1972, wherein it was insinuated that there was a wide gap between the profession and action of the Government leaders in implementing measures to check the rising prices. They maintained that the impugned order was the result of frustration and was passed to appease public resentment and not because of emergency, and as such the power under section 5 (1) was invoked for a collateral purpose. This grievance is not borne out by the material on record. The news item referred to by the learned counsel was published on November 25, 1972, but Annexure R. 5 shows that it was on June 16, 1972 that Deputy Inspector General of Police, Delhi, had reported to the Chief Secretary that the problem of illegal forward trading in Delhi was generally localised in the Coronation Hotel Building and was being done with the help of legal and illegal telephones. This note also stated that the matter regarding taking action against such dealers had been taken up with the P & T Department through the Delhi Administration as far back as the year 1970 but nothing had been heard from the General Manager, Delhi Telephones, thereafter. Similarly, Annexure R. 2, D.O letter from the Director, Forward Markets Commission, dated November 17, 1972, to Delhi Administration stated that particulars of such telephone connections had already been collected by officers of the Commission with the help of the police as well as officers of the Telephone Exchange concerned. This shows that the authorities had in their contemplation some action in regard to the telephones through which the illegal trading was being done much before the date when the news item was published. The impugned order, therefore, cannot be said to be the result of this publication and for any collateral purpose.
Shri Daljit Singh then contended that in any event the impugned order could not be passed without a hearing. Strong reliance was placed by the learned counsel in support of this argument on State of Orissa v. Dr. (Miss) Binapani Dei and others (A.I.R 1967 Supreme Court 1269) (4), Mohan Singh v. New Delhi Municipal Committee, I.L.R (1969) Delhi 824 (5) and Balu Ram Goel v. Union of India and others (A.I.R 1972 Delhi 5) (6). The impugned order, he said, even if it was an administrative order, could not be passed without a hearing as it adversely affected valuable rights of persons who carried on their business with the aid of the telephones taken possession of. The argument cannot be sustained Section 5 (1) of the Act authorises the Central Government (the Administrator in the case of Delhi), on the occurrence of a public emergency or in the interest of public safety, to take temporary possession of a telegraph if he was satisfied that it was necessary so to do. The satisfaction envisaged is purely subjective. The order to be passed in consequence of this satisfaction is to meet public emergency or in the interest of public safety to prevent any further deterioration of the situation. Such an order, from the very nature of the situation it is intended to meet, has to be immediate and the passing of it cannot be postponed till after a hearing. In Dr. N.B Khare (Dr.) v. State Of Delhi (A.I.R 1950 Supreme Court 211) (7) dealing with section 4 (1) (c) of the East Punjab Public Safety Act (V of 1949) which provided for special measures to ensure public safety and maintenance of public order, on page 217 of the report, this is what Mr. Justice Mukerjea said:—
“The object of the East Punjab Public Safety Act is to provide for special measures to ensure public safety and maintenance of public order. Under S. 4 (1) (c) of the Act, the Provincial Government or the District Magistrate may make an order directing the removal of a certain person from a particular area, if they are satisfied that such an order is necessary to prevent such person from acting in any way prejudicial to public safety or maintenance of public order. Preventive orders by their very nature cannot be made after any judicial enquiry or trial. If emergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise the interests or safety of the public, somebody must be given the power of taking the initial steps on his own responsibility; and no reasonable objection could be taken if the authority, who is given the power, is also entrusted with the responsibility of maintaining order and public peace in any particular district or province. The preventive provisions of the Criminal Procedure Code are based on similar principle.”
A similar view was taken by a Division Bench of Madhya Pradesh High Court in Thakur Bharatsingh v. State of Madhya Pradesh and another (A.I.R 1964 Madhya Pradesh 157) (8). The concept of hearing, before passing an order under section 5 of the Act, cannot, therefore, be read to be implicit in this provision.
It is relevant at this stage also to notice that though section 5 of the Act was challenged in the petition on the ground that it was ultra vires of Art. 14 of the Constitution but this ground was not pressed at the time of argument. If section 5 is intra vires and the object of the section is to deal with a public emergency, it is legitimate to hold, from this angle also, that the nature of the provision excludes the concept of personal hearing. For these reasons, we are unable to sustain the contention that the Administrator should have allowed a personal hearing before passing the impugned order.
Lastly Shri Daljit Singh argued that the petitioner enjoying the facility of telephone under ‘Own Your Telephone’ Scheme was not a “person licensed under this Act” within the meaning of section 5 (1) and, therefore, temporary possession of his telephone could not be taken under this provision. We see force in this argument.
Telephone instrument is covered by the definition of the expression “telegraph” as defined in section 3 (1) of the Act. This definition, however, is comprehensive. It means not only an instrument but also any appliance, material or apparatus used or capable of use for transmission or reception of sings, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio Waves or Hertzian waves, galvanic, electric or magnetic means. It comprises within itself establishments like the telephone exchange and the other telephone systems erected and operated to work the facility of telephone.
Part II of the Act sets out the privileges and powers of Government in regard to establishing, maintaining and working telegraph. Section 4 provides that the Central Government shall have the exclusive privilege for this but it can also grant a “licence” as also a “permit” to other individuals or firms to do so. The part of the section relevant in this regard is in the following terms:
4. “ (1) Within India, the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs:
Provided that the Central Government may grant a licence, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India:
Provided further that the Central Government may, by rules made under this Act and published in the official Gazette, permit, subject to such restrictions and conditions as it thinks fit the establishment, maintenance and working:—
(a) of wireless telegraphs on ships within Indian territorial waters and on aircraft within or above India, or Indian territorial waters, and
(b) of telegraphs other than wireless telegraphs within any part of India.
(2). . . . . . ”
The first proviso to the section envisages the grant of a ‘licence’ and the second proviso a ‘permission’ to other persons to establish, work and maintain telegraphs. While there is no fetter under the first proviso as to the persons to whom “licence” can be granted, the second proviso specifies the cases in which permission under this proviso can be granted. The scheme and the working of the Act shows that licence under the first proviso and the permission granted under the second proviso is not one and the same thing. In the Posts and Telegraphs Manual, Vol. XII, published by the Government of India under the authority of the Director-General of Posts and Telegraphs which, it is not denied, contains the working instructions for the telegraph, provisions in regard to licences are made separately from those dealing with the other telephone connections that can be granted by the Central Government. Chapters I, II and III deal with telephone traffic, procedure for giving telephone connections and calculation of rentals and other charges. Chapter VII deals with “Licensed Systems”. Para 250 of this Chapter states, by way of amplification of the provisions of the Act, that “the Central Government has the exclusive privilege of establishing, maintaining and working Telegraphs (including wireless) within India. . . in exercise of this privilege, it has erected telephone systems confined to special localities, as well as long distance telephone trunks. Private individuals or firms can, under the Act, be granted licences for the erection and operation of telephone systems on certain conditions”. Para 251 states, amongst others, that licences of privately owned systems “will not be permitted to be connected to privately owned systems of other parties”. Para 254 lays down that in case where the department decides to grant a licence, a royalty must be levied on all licences for privately owned facilities not worked for gain at the rates specified in this para.
The basic feature of a telephone connection rented out to a subscriber is that he can connect himself to another subscriber to whom connection is similarly granted. This is not so in case of a licensee (vide para 251). Likewise, while in case of telephone connection to a subscriber no royalty is payable, but in case of licence, according to para 254, royalty has to be paid. We further find that penalties for breach of condition of “licence” and contravention of the provisions of section 4 otherwise are also provided separately under sections 20 and 20A in Part IV of the Act.
For all these reasons, we are of the view that the concept of the licence envisaged in the first proviso to section 4 is different from the permission to be granted by the Central Government according to Rules referred to in the second proviso. We specifically asked the learned counsel for the parties if any such rules had been framed by the Central Government under section 4 because they would have further clarified the position in this regard but we were told that no such rules had been framed. Under these circumstances, we had to take recourse to the general rules in Posts and Telegraphs Vol. XII which we have referred to above.
Telephone Service is “telegraph other than wireless telegraphs” within the meaning of clause (b) of the second proviso to section 4. The subscriber who is permitted to avail of this service established, maintained and worked by the Central Government, for reasons aforesaid, in our view, is not a “person licensed under the Act” and for this reason does not fall within section 5 (1).
Shri Bhandare, learned counsel for the respondents, urged that the expression “licence” in the first proviso should be construed in a wider sense to include ‘permission’ to use the telephone service also. This obviously cannot be done in view of the two separate provisos in S. 4 of the Act for the grant of a “licence” (under the first proviso) and “permission” (under the second proviso). Working rules referred to above also show that they cover two different fields — licence being for the erection and operation of telephone systems and working and maintaining it (vide para 250 of Posts and Telegraphs Manual Vol. XII) and ‘permission’ under the second proviso being for the use of the telephone service (vide Chapter I of the Manual headed as “Telephone Traffic”).
The inescapable conclusion, therefore, is that a telephone subscriber is not a person licensed under the Act to establish, maintain or work a telegraph within the meaning of Section 5 (1) of the Act and, therefore, temporary possession of the telephone instrument of a subscriber cannot be taken in exercise of power under Section 5 (1).
The impugned orders in C.Ws 1209/72 and 1253/72, 1254/72 and 1290/72, for this reason, cannot be sustained and are hereby quashed. The respondents are directed to restore the telephone instruments to the premises of the petitioners in all these writ petitions within two weeks from the date of this order. This direction is without prejudice to any other action that the respondents may in law be entitled to take in the matter as we are told that the respondents have already taken action under rule 422 of the Indian Telegraph Rules.
The writ petitions are thus accepted in the above terms. The respondents shall pay Rs. 200/- as costs to each one of the petitioners.
Petition allowed.