# HUKAM CHAND SHYAM LAL v. UNION OF INDIA AND ORS

- **Citation:** [1976] 2 S.C.R. 1060
- **Court:** Supreme Court of India
- **Decided:** 1975-12-17
- **Case number:** Civil Appeals Nos. 1848 and 1849 of 1974
- **Bench:** A. N. Ray, M. H. Beg, R. S. Sarkaria, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hukam-chand-shyam-lal-v-union-of-india-and-ors-6696
- **Pages:** 8

## Headnote

J1idias Telegrc.phs Act, 1895-S. 5(1)-Read with Rule 422 of the ll!dian
Telegraphs Rules, 1951-Whether statutory notice is
111a11datory-"Econo1i1ic
Enzerl..{ency'' does not a111ou11t to ''public emergency" within the meaning of s. 5Scope oj the words "A 11y emergency" i11 Rule 422 vis-a-vis the words "public
emergency" in s. 5-Exercise of power of a drastio 11ature in a mode. other than
the one proFided, is violative of the fundamelllal principles of natural justice.
The appellants' telephones were disconnected and taken temporary possession of by the Superintendent of Police, North District and the General Manager,
Telephones respectively on various dates acting under the instructions of the
Administrator, Delhi, who was personally satisfied that illegal forward trading
(satta) in agricultural commodities was being practised on a large scale by
them through their telephones.
The Orders were
purportedly made
under
s. 5(1) of the Indian Telegraphs Act, 1895, and Rule 422 of the Indian TeleD
graphs Rules, 1951.
These orders were assailed by the appellants by a writ
petition under Art. 226 of the Constitution which was allowed by a single Judge
of the High Court, resulting in a special appeal by the Union of India, which
was accepted.
E
F
G
H
Negativing the contention Qf' the appellants/respondents viz.; that the impug•-
ed aciion of disconnection and temporary taking over of the telephones was
bad because :-
(a) No statutory notice was ever given as required under Rules 421 and
422.
(b) The Divisional Engineer did not apply his mind and record his own
satisfaction about the existence of "any emergency" and as such there was a
contravention of Rules 421 and 422 which had to be read together.
(c) The reason given in the order to the effect that the appellant, were
making illegal and improper use of the telephones by transmitting messages and
information in regard to Salta business which had been banned, was irrelevant
and extraneous to Rule 422.
(d) The emergency contemplated by Rule 422 is 1101 the same as "public
emergency'' declared under s. 5, but "any emergency", the existence of which
was to be established to the satisfaction of the Divisional Engineer and not any
extraneous authority, the appellate Bench of the High Court held, (i) that, the
requirement of notice could be dispensed with under Rule 422 by the General
Manager Telephones, if he was satisfied that the telephones were being used
by the subscribers for illegal forward trading (ii) that, such use was contrary
to public interest in view of the existence of "economic" emergency (iii) that
the words " any emergency" in Rule 422 includes an "economic emergency"
and (iv) that, on the basis of the certificate in regard to the existence of an
'economic emergency" the Divisional Manager was competent to pass the impugned order in exercise of his powers under Rule 422.
While allowing the appeals by special leave the Court,
HELD: (1) S. 5(1) of the Indian Telegraphs Act. 1895, if properly construed, does not confer unguided and unbridled power on the Central Government /State Government /Specially Authorised Officer to take possession of any
telegraph. [l 065 CJ
{
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HUKAM CHAND SHYAM LAL v. UNION (Sarkaria, J.)
1061
(2) Conditions pre-requisite for the exercise of power under this section
and Rule 422 are :
(a) the occurrence of a "public emergency'" not any other kind of emergency.
(b) recording of'. its satisfaction as to the existence of such ah emergency .by
the Government or the Authority concerned on grounds germane to an action
under the rule [1065 C-D]
(3) The expression "public emergency" ha9 not been defined in the statute.
Read as a whole, s. 5, with the two phrases in sub-section (i) viz. "oc.currence
of any public emergency" and "or in the interest of public safety", clarifies that
a "public emergency", within the contemplation of that section, is one which
raises problems concerning the interest of public safety, the sovereignty and
integrity of India,

## Text

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1060
HUKAM CHAND SHYAM LAL
v.
UNION OF INDIA AND ORS.
December 17, 1975
[A. N. RAY, c. J., M. H. BEG, R. S. SARKARIA, AND
P. N. SHINGHAL, JJ.]
J1idias Telegrc.phs Act, 1895-S. 5(1)-Read with Rule 422 of the ll!dian
Telegraphs Rules, 1951-Whether statutory notice is
111a11datory-"Econo1i1ic
Enzerl..{ency'' does not a111ou11t to ''public emergency" within the meaning of s. 5Scope oj the words "A 11y emergency" i11 Rule 422 vis-a-vis the words "public
emergency" in s. 5-Exercise of power of a drastio 11ature in a mode. other than
the one proFided, is violative of the fundamelllal principles of natural justice.
The appellants' telephones were disconnected and taken temporary possession of by the Superintendent of Police, North District and the General Manager,
Telephones respectively on various dates acting under the instructions of the
Administrator, Delhi, who was personally satisfied that illegal forward trading
(satta) in agricultural commodities was being practised on a large scale by
them through their telephones.
The Orders were
purportedly made
under
s. 5(1) of the Indian Telegraphs Act, 1895, and Rule 422 of the Indian TeleD
graphs Rules, 1951.
These orders were assailed by the appellants by a writ
petition under Art. 226 of the Constitution which was allowed by a single Judge
of the High Court, resulting in a special appeal by the Union of India, which
was accepted.
E
F
G
H
Negativing the contention Qf' the appellants/respondents viz.; that the impug•-
ed aciion of disconnection and temporary taking over of the telephones was
bad because :-
(a) No statutory notice was ever given as required under Rules 421 and
422.
(b) The Divisional Engineer did not apply his mind and record his own
satisfaction about the existence of "any emergency" and as such there was a
contravention of Rules 421 and 422 which had to be read together.
(c) The reason given in the order to the effect that the appellant, were
making illegal and improper use of the telephones by transmitting messages and
information in regard to Salta business which had been banned, was irrelevant
and extraneous to Rule 422.
(d) The emergency contemplated by Rule 422 is 1101 the same as "public
emergency'' declared under s. 5, but "any emergency", the existence of which
was to be established to the satisfaction of the Divisional Engineer and not any
extraneous authority, the appellate Bench of the High Court held, (i) that, the
requirement of notice could be dispensed with under Rule 422 by the General
Manager Telephones, if he was satisfied that the telephones were being used
by the subscribers for illegal forward trading (ii) that, such use was contrary
to public interest in view of the existence of "economic" emergency (iii) that
the words " any emergency" in Rule 422 includes an "economic emergency"
and (iv) that, on the basis of the certificate in regard to the existence of an
'economic emergency" the Divisional Manager was competent to pass the impugned order in exercise of his powers under Rule 422.
While allowing the appeals by special leave the Court,
HELD: (1) S. 5(1) of the Indian Telegraphs Act. 1895, if properly construed, does not confer unguided and unbridled power on the Central Government /State Government /Specially Authorised Officer to take possession of any
telegraph. [l 065 CJ
{
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(
HUKAM CHAND SHYAM LAL v. UNION (Sarkaria, J.)
1061
(2) Conditions pre-requisite for the exercise of power under this section
and Rule 422 are :
(a) the occurrence of a "public emergency'" not any other kind of emergency.
(b) recording of'. its satisfaction as to the existence of such ah emergency .by
the Government or the Authority concerned on grounds germane to an action
under the rule [1065 C-D]
(3) The expression "public emergency" ha9 not been defined in the statute.
Read as a whole, s. 5, with the two phrases in sub-section (i) viz. "oc.currence
of any public emergency" and "or in the interest of public safety", clarifies that
a "public emergency", within the contemplation of that section, is one which
raises problems concerning the interest of public safety, the sovereignty and
integrity of India, the security of the State, frienrlly relations with foreign States
or public order, or the prevention of incitement to the commission of an offence.
It is in the context of these matters that the appropriate authority has to form
an opinion with regard to the ·occurrence of a "public emergency" with a view
to taking further action under s. 5. [l 065 D-F]
( 4) "Economic Emergency" is not one of these matters expressly mentioned
in the statute.
Mere "economic emergency" may not necessarily amount to a
".public emergency"' and justify action unde.r s. 5 unless it raises problems re•
lating to the matters indicated therein. [1065 F-G]
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(5) Notice under Rule 421 cannot be dispensed with.
The scope of the
words "any emergency" in Rule 422 is wider than the expression "public emerD
gency" under s. 5. The subjective satisfaction as to the existence of "any
emergency" under Rule 422 is that of the Divisional Engineer, on a rational
basis on relevant material which may include any certificate or report of the
appropriate Government as to the occurrence of a "public emergency".
The
requirement of recording such satisfaction by the Divisional Engineer with
reasons therefor, is implicit in the Rule.
That will be a minimal safcgua,rd
against arbitrary exercise of the drastic power. [1066 A, C-D]
(6) The ground. for disconnection and taking over temporary possession of
E
the telephones viz., 'that illegal forward tq1ding (satta)
in
agricultural commodities is being practised" amounts to ''improper or illegal use of telegraph9
and is not a relevant consideration under Rule 422.
The appropriate course
to be followed was that laid. down in R. 427 read with Rr. 416 and 421, afte~
giving an opportunity to explain their conduct, in consonance with the principles
of natural justice. (1066 F-G]
(6) It is well-settled that where a power is required to be exercised by a
certain authority in a certain way, it should be exercised in that manner or not
at all, and other modes of performance. are necessariiy forbidden. It is all the
more necessary to observe this rule where the power is of a drastic nature and,
its exercise in a mode other than the one provided, will be violative of the fundamental principle of natmal justice.
Resort to the wrong and more drastic
course .provided in rule 422, on a ground which was not germane to an action
under that rule violates the impugned order, particularly when it is manifest, in
the instant ca<;e that the authority was influenced more by this ground and
less, if at all, by the existence of "pub]ic emergency" certified by the State [1066
H, 1067 A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1848
and
1849 of 1974.
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Appeals by Special Leave from the Judgment and Orders dated
the 27-11-1973 & 23-5-74 of the Delhi High Court in LP.A. No. 172/
73 and Civil Writ No. 237 of 1974 respectively.
H
llardyal Hardy, S. K. Mehta, K. R. Nagaraja and P. N. Puri for
the Appellants.
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1062
SUPREME COURT REPORTS
[1976] 2 s.c.R.
Mrs. Shyamla Pappu and Girish Chandra for Respondents l-3.
R. N. Sachthey for Respondents 4-5.
The Judgment of the Court was delivered by
SARKARIA, J.
This judgment will govern the disposal of these
two appeals which arise out 0£ a common judgment of the High Court
of Delhi dismissing the writ petitions filed by the appellants and others,
under Article 226 of the Constitution.
On November 27, 1972, the Administrator of Delhi, made an
order under s. 5 of the Indian Telegraphs Act, 1885 (for short, the
Act) authorising the Superintendent of Police, North District, to take
temporary possession "until further orders" of certain specified telephones installed in rooms and cabins of the building known as Coronation Hotel, Fatehpuri, Delhi.
The order reads as ugder :
"Whereas the Administrator of Delhi is
satisfied that
illegal forward trading ( satta) in agricultural commodities is
being practised on a large scale through the following telephones installed in the rooms/cabins in the premises of the
Coronation Hotel,
Fatehpuri, Delhi,
thereby affecting
adversely the price of the supply essential to the life of the
community.
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Whereas public emergency exists and the Administrator,
Delhi is satisfied that the continuation of satta at the aforesaid premises through the telephones given above is prejudicial to public interest and as such it is necessary to take
temporary possession of all the aforesaid telephones from
the premises in question."
Another order in similar terms was made on December 4, 1972
by the Administrator for taking over certain other telephones.
F
Four subscribers, who were affected by these orders challenged
their validity by writ petitions in the High Court.
A Bench of the
High Court allowed those petitions and quashed the orders in question
on the ground that resort cannot be had to s. 5 ( l) of the Act for
taking temporary possession of the subscribers' telephones.
The General Manager, Telephones, Delhi also, mad0 orders on
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November 28, 1972 and December 5, 1972, purporting to act under
Rule 422 of the Indian Telegraphs Rules, 1951, (for short, the Rules)
for disconnecting the telephones and non-exchange
lines.
One of
those orders, dated November 28, 1972, may be extracted as a specimen:
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"The Delhi Administration has certified vide order No.
F5/20/72/C-HG dated 27-11-1972 that public emergency
exists and that continuation of "satta' at the premises of
Coronation Hotel Fatehpuri through the telephones is prejudicial to public interest.
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HUKAM CHAND SHYAM LAL v. UNION (Sarkaria, J.)
10 63
The undersigned in exercise of the powers
conferred
under rule 422 of Indian Telegraphs Rules,
1951
hereby
orders to disconnect the telephones and Non-exchange Lines
mentioned in the list supplied by Delhi
Administration
(copy attached) . "
Thereupon, the appellants filed C.W. 470 o_f 1973 in the High
Court praying for a writ to quash these orders of the General Manager
and tor restoration of their telephone connections.
This writ petition
was heard by a learned Single Judge of the High Court who allowed the
same and quashed the impugned orders and further directed that the
telephones be restored to the appellants.
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B
Aggrieved, the Union of India and other respondents carried a
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special appeal to the appellate Bench of the High Court. Before the
appelalte Bench it was contended that the impugned action was bad
because : (a) no prior notice in regard to the same was given to the
appellants; (b) the Divisional Engineer did not apply his mind and
record his own satisfaction about the existence of any emergency and
as such there was a contravention of Rules 421 and 422 which had to
be read together; (c) the reason given in the impugned order, to the
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effect, that the appellants were making illegal and improper use of
their telephones inasmuch as they were transmitting messages and information in regard to satta business which had been banned, was
irrelevant and extraneous to Rule 422 under which the impugned
action has been purportedly taken; (d) the emergency contemplated
by Rule 422 is not the same as a 'public emergency' declared under
s. 5, but is an emergency arising out of the br.eakdown of the teleE
communications due to a technical defect, labour trouble, vis major,
fire or the like, the existence of which was to be established to the
satisfaction of the Divisional Engineer and not any extraneous authority.
Stress was laid, in this connection, on the fact that the word
"emergency" in Rule 422 is not qualified by the prefix "public'', instead, the words used are "any emergency".
The High Court negatived these contentions.
In its opinion, the
requirement of notice could be dispensed with under r. 422 if the
General Manager, Telephones, was satisfied that the telephones were
being used by the subscribers for illegal forward trading and that such
use was contrary to public interest in view of the existence of "economic" emergency.
It further held that the words "any emergency" in
Rule 422 include an 'economic emergency', and on the basis of the
certificate in regard to the existence of an "economi::
emergency"
issued under s. 5, by the Delhi Administration. The Divisional Manager was competent in exercise of his P:gWers under Rule 422 to pass
the impugned orders.
In the result, it set aside the decision of the
learned Single Judge and dismissed the writ petition with the observation that "the telephone authorities should treat these disconnections
as temporary and allow. the petitioners to get back their connections,
if the Ge'.leral Manager is satisfied that the emergency caused by the
shortage m supply of the commodities on which the forward trading
was banned, was over".
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1064
SUPREME COURT REPORTS
[1976] 2 s.c.R.
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Hence these appeals.
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The contentions canvassed before the High Court have been repeated before us.
Before dealing with the same, it will be worthwhile
to have a look at the relevant statutory provisions.
Section 5 of the Act provides :
' i •
" ( 1) On the occurrence of any public emergency, or in
the interest of the public safety, the Central Government or State Government or any officer
spccial!y
authorised in this behalf by the Central Governmerit
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 Centr::il 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 nece5sary
or expedient so to do in the interest of the sovereignly
and integrity of India, the security of
the
StatG,
friendly relations with foreign States or public order
or for preventing incitement to the commission of an
offence. for reasons to be recorded in writing,
by
order, direct that any message or class of messages to
or from any person or class of persons or relating to
any particular subject, brought for transmission by or
transmitted or received by any telegraph, shafl 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 der
tained, unless their transmission has been prohibited under
this sub-section."
The material rules are these :
"421. Disconnection ~ telephones.-Wherc the
Divisional Engineer is satisfied for reasons to be recorded
in
writing that it is necessary to do so, he may, after giving the
subscriber a notice in writing for a period which shall not
except in emergent_ cases be less than 7 days, disconnect the
telephone, and in such case, the subscriber shall be entitled
to refund of rent for the unexpired portion of the period for
which the connection or service was given.
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HUKAM CHAND SHYAM LAL v. UNION (Sarkaria, J.)
1065
422. Right of disconnection in emergency.-The
Di~i
sional Engi'11eer may, in the event of any emergency, dtsconnect any subscriber, wit~ or without notice. In case s_uch
disconnection exceeds a penod of seven days, the subscriber
shall be entitled to proportionate refund of rent.
427. Illegal or improper use of telephones.--A
subscriber shall be personally responsible for tl1e use
of his
'telephone.
No telephone shall be used to disturb or irritate
any person or for the transmission of any message or communication which is of an indecent or obscene nature or is calculated to annoy any person or to disrupt the maintenance of
public order in any other manner contrary to any provision
of Jaw."
Section 5 ( 1), if properly construed, does not confer unguided and
unbriuled power on the Central Government/State Government/Specially Authorised Officer to take possession of any telegraph.
Firstly,
the occurrence of a 'public emergency' is the sine qua non for the
exercise of power under this section.
As a preliminary step to the
eKercise of further jurisdiction under this section the Government or ·
the authority concerned must record its satisfaction as to the existence
of such an emergency.
Further, the existence of the emergency which
is a pre-requisite for the exercise of power under this section, must be
a 'public emergency' and not any other kind of emergency.
The expression 'public emergency' has not been defined in the statute, but
contours broadly delineating its scope and features are discernible from
the section which has to read as a whole.
In sub-section (I) the
phrase 'occurrence of any public emergency' 1s c·Jnnected with and is
immediately followed by the phrase "or in the intere8ts of the public
safety".
These two phrases appear to take colour from each other.
In foe Jirst part of sub-s. (2) these two phrases again occur in association with each other, and the context further clarifies, with amplification, that a 'public emergency' within the contemplation of
this
seclion, is one which raises problems concerning the interest of the
public safety, the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence. It is in the
contcJ1.t of these matters that the appropriate authority ha8 to form an
opi11ion with r,egard to the occurrence of a 'public emergency' with a
view to taking further action under this section.
Economic emergency
is not one of those matters expressly mentioned in the statute. Mere
'economic emergency'-as the High Court calls it-may not necessarily amount to a 'public emergency' and justify action under this
section unless it raises problems relating to the matters indicated in
the section.
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Rules 421 and 422 occur in serial order in a section of Part V
under the group caption, "Telephone connections and other services".
Rule 42 l requires the Divisional Engineer to record his satisfaction,
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supported by reasons, for the proposed discon'nection of the telephone.
It further requires that authority to give a notice in writing to
the
subscriber. Such notice shall ordinarily be of not less than
seven
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1066
SUPREME COURT REPORTS
[1976] 2 s.c.R.
A
days.
In emergent cases, the period of this notice can be less than
seven days .. But even in emergent cases und.:r tl1is Rule, the notice
cannot be dispensed with altogether.
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Rule 422 empowers the Divisional Engineer to
disconnect any
subscriber 'in the event of any emergency' with or without notice. Tue
existence of "any emergency" to the satisfaction of the
Divisional
Engineer, appears to be a necessary pre-requisite to the exercise of the
power under this rule. It is significant that while s. 5 speaks of the
occurrence of a 'public emergency', satisfaction with regard
to the
existence of which is to be recorded by the appropriate authority mentioned in that section, Rule 422 purports to empower the Divisional
Engineer to take action thereunder in the event of "any ·emergency". -
The scope of the words "any emergency"' in Rule 422 is apparently
wider than the expression "public emergency" used in s. 5. It follows
that the satisfaction in regard to the existence of "any emergency"
under Rule 422 is to be of the Divisional Engineer.
He has to arrive
at such satisfaction rationally on relevant material which may include
any certificate or report of the appropriate Government as to the occurrence of a 'public emergency'. The requirement of recording such
satisfaction by the Divisional Engineer, with reasons therefor, is implicit in the Rule.
That will be a minimal safeguard against arbitrary
exercise of this drastic power.
In this connection, it will not be out
of place to mention here, that sub-section (2) of s. 5 which made the
Certificate of the Central/State Government conclusive proof as
to
the existence of a 'public emergency', stood deleted and replaced by
a different provision, at the time when the impugned action was taken
in this case. That is an additional reason for holding that it was the
Divisional Engineer who had to form his own opinion as to the 'existence of an emergency, before taking action under r. 422.
Having heard the Counsel on both sides, we are of opinion, that
the impugned Order suffers at least from one
apparent defect of
jurisdiction.
F
Assuming that the General Manager was competent to make
an
order under Rule 422, the power has been exercised mainly on a
ground which is not a relevant consideration under this Rule.
This
ground as recited in the Delhi Administration Notification of December 4, 1972 and reproduced in the impugned order of the General
Manager, Telephones, is that illegal forward trading (satta) in agricultural commodities is being practised in a large scale through the
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telephones in question at the premises of Coronation Hotel, Fatehpuri.
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In other words, the impugned action has been taken chiefly on the
ground that the appellants have been making improper or illegal use
of these telephones.
This being the position, the appropriate course
to be followed was that laid down in Rule 427 read with Rules 416
and 421.
But this was not done.
It is well settled that where a power is required to be exercised by .
a certain authority in a certain way, it should be exercised in that
manner or -not at all, and all other modes of performances are necessarily forbidden.
It is all the more necessary to observe this rule
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HUKAM CHAND SHYAM LAL V. UNION (Sarkaria, J.)
1067
where power is of a· drastic nature and its exercise in a mode other
tl1an the one provided, will be violative of tbe fundamental principles
of natural justice.
Now, in the present case, if the telephones of the
appellants were to be disconnected on the ground of misuse, then
tbey had to give, in consonance with the principles oi natural justice,
opportunity to the appellants to explain their conduct before taking
action under Rule 427 read with Rules 416 and 421.
Resort to the
wrong and more drastic ·course provided in Rule 422, on a ground
,
which was not germane to an action under that Rule, vitiates the imJ
pugned order, particularly when it is manifest that in making
the
{
impugn·ed order, the General Manager was influenced more by this
'
ground and less, if at all. by the existence of 'public emergency' certi-
, It, _-,.fled by the Delhi Administration.
II
For the foregoing reasons we accept these appeals, allow the writ
petitions, quash the impugned orders and direct t11e
res]!londents to
restore the telephone connections to each of these appellants. However in the circumstances of the cases we make im order as to costs.
S.R.
Appeals allowed.
L277SCT/76-2500c-3-8-76-GIPF.
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