SHANKAR BIRMIWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners in both these writ petitions are Advocates who had applied for grant of telephone connections. They wanted their applications to be registered in special category on the ground that they are public workers. The said applications have however, been registered by the District Manager, Telephones. Jaipur under the general category. Being aggrieved by the aforesaid order, the petitioners have filed these writ petitions. The said writ petitions were hoard by a learned single Judge of this Court, who by his order dated May 6, 1981, has referred the same to a larger Bench, preferably by three Judges of this Court, for deciding the important Constitutional questions which arise for determination in these writ petitions. In view of the aforesaid order passed by the learned single Judge the writ petitions have been heard by this Bench. Since both the writ petitions raise common questions for determination they are being disposed of by this common order.

(2.) Under Section 4 of the Indian Telegraph Act, 1885 (hereinafter referred to as "The Act), the exclusive privilege of establishing, maintaining and working telegraphs has been conferred on the 'Central Government and the Central Government empowered to permit, subject to such restrictions and conditions as it thinks fit, the establishment, maintenance and working of telegraphs, other than wireless telegraphs within any part of India. The term "telegraph" is defined in Sub-section, (i) of Section 3 of the Act to mean "any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signal, writing, images and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, radio waves or Hertzian waves, galvanic, electric or magnetic means." The expression "telegraph line" is defined in Sub-section (4) of Section 3 of the Act to mean a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same". Section 7 of the Act confers on the Central Government the power to make rules making provision for the matters referred to in Clause (a) to (k) of Sub-section (2). Section 7 (2) (c) enables the Central Government to frame rules prescribing the conditions and restrictions subject to which any telegraph line, appliance or apparatus for telegraphic communication shall be established, maintained, worked, repaired, transferred, shifted, withdrawn or disconnected. Section 7 (2) (f) enables the Central Government to make rules prescribing the charges in respect of the establishment, maintenance, working, repair, transfer or shifting of any telegraph line, appliance or apparatus. Section 7 (4) (b) lays down that nothing in Section 7 or in any rules made under Section 7 shall be construed as subjecting the Central Government to any obligation to provide any telegraph line, appliance or apparatus for the purpose of affording means of telegraphic communication. Since a telephone is an instrument used for transmission and reception of sound by wire, it is "telegraph" as defined in Section 3 (1) of the Act and a telephone connection is a "telegraph line" as defined in Section 3 (4) of the Act. .The provision of a telephone connection is, therefore, governed by the provisions of the Act and the rules framed thereunder.

(3.) In pursuance of the rule making power conferred on it by Section 7 of the Act the Central Government has made the Indian Telegraph Rules, 1951 (hereinafter referred to as "the Rules"). The rules relating to telephones are contained in Part V of the Rules, Le., Rules 411' to 459. Rule 413 lays down that ali telephone connections and other similar services provided or authorised by the department shall, unless governed by a separate contract, be subject to the conditions set forth in the Rules. Sub-rule (1) of Rule 414 lays down that applications for provision of telephone and other similar service or for alteration to any existing service shall be made in writing and in such form and manner as may from time to time be prescribed by the telegraph Authority. Sub-rule (2) of Rule 414 prescribes the charges for the application form for providing a new telephone connection. Sub-rule (1) of Rule 416 empowers the Telegraph Authority (as defined in Section 3 (6) of the Act) to reject any application for the connection of a new telephone or for providing any similar service or for the alteration of an existing service. Sub-rule (2) however, lays down that before rejecting any application under Sub-rule (1) the Telegraph Authority shall have due regard to the factors mentioned in Clause (a), (b), (c) and (d) of Sub-rule (2) and it further lays down that no action rejecting any application shall be taken by the Telegraph Authority unless notice of not less than seven days has been given in writing to the person concerned and the Telegraph Authority has considered the representation, if any, made by such person in the matter. Rule 434 prescribes the amounts which have to be deposited along with the applications for telephone connections and prescribes different amounts for applications for connections under the 'Own Your Telephone' (O.Y.T.) scheme and applications falling in the general or special categories. Thus according to the Rules the applications for telephone connections fall in three categories, namely (1) 'O.Y.T applications, (2) Special Category applications and (3) General category applications. The allotment of telephone connections to the applicants falling in the O.Y.T- Special and General categories is governed by the instructions for allotment of telephones issued by the Post and Telegraph Board, known as Telephone Allotment Rules. Under the said instructions, which were in force on the date of submission of the applications by the petitioners, non O.Y.T. applicants belonging to (1) Medical Profession --Doctors, qualified Nurses and registered Mid wives: (2) Press ---Newspapers, Journals and Magzines registered with the Registrar of the Newspapers, registered news- agencies, credited press correspondents and press photographers; (3) Public Institutions --recognised Schools and Colleges, registered Trade Unions, registered Co-operative Societies etc. etc., (4) Agricultural Farms -- Agricultural Farms having area of not less than 3 acres, but excluding gardens, orchards or large cultivations of tea, jute etc.; (5) Registered Small Scale Industries; and (6) Public men i.e. prominent social workers and public men who are actively engaged in such work and are supported by two registered social/ charitable institutions and two terminal public men, were entitled to be registered under the special category. In so far as applications submitted by the persons claiming to be registered in the special category on the ground that they are public men, it was further provided that the registration was subject to ratification by the Telephone Advisory Commit-tee in stations where such Committees are functioning.