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Mahboob Khan Vs. Deputy Commissioner and ors. - Court Judgment

LegalCrystal Citation
Subject;Constitution
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 66 of 1952
Judge
ActsConstitution of India - Articles 19(1) and 226; Assam Municipal Act, 1923 - Sections 291
AppellantMahboob Khan
RespondentDeputy Commissioner and ors.
Appellant AdvocateF.A. Ahmed and B.C. Barua, Advs.
Respondent AdvocateS.M. Lahiri, Adv. General and D.N. Medhi, Sr. Govt. Adv. for Nos. 1 and 5
DispositionPetition dismissed
Excerpt:
- - 4 an unsuccessful bidder and no. ' an amendment was moved to this resolution by another member of the board whereby it was recommended that the new market be settled with the highest bidder mahboob khan at rs. 5. the petition is opposed on behalf of the deputy commissioner as well as by the state of assam and the municipal board (opposite party no. 6. the learned advocate-general appearing on behalf of the state urged that this petition under article 226 of the constitution of india is liable to fail on the grounds, (1) that the order of deputy commissioner is purely an administrative order and the high court in exercising its powers under article 226 of the constitution of india is not competent to examine the legality of the said order or question the correctness thereof;..... deka, j. 1. this is a petition under article 226 of the constitution of india for a writ or writs of the nature of mandamus and prohibition on the five opposite parties of whom opposite party no. 1 is the deputy commissioner of lakhimpur, no. 2 municipal board of dibrugarh, no. 3 the present lessee, no. 4 an unsuccessful bidder and no. 5, the state of assam. the petition is on behalf of one mahboob khan who claims to be the lessee of a municipal market within the municipality of dibrugarh for the year 1952-53 and his allegation is that the deputy commissioner by an illegal order restrained him from obtaining the lease and the government of assam have affirmed that order. 2. the facts of the case are as follows: on 26-3-1952, the chairman of the dibrugarh municipal board with a.....
Judgment:

Deka, J.

1. This is a petition under Article 226 of the Constitution of India for a writ or writs of the nature of Mandamus and Prohibition on the five opposite parties of whom opposite party No. 1 is the Deputy Commissioner of Lakhimpur, No. 2 Municipal Board of Dibrugarh, No. 3 the present lessee, No. 4 an unsuccessful bidder and No. 5, the State of Assam. The petition is on behalf of one Mahboob Khan who claims to be the lessee of a municipal market within the municipality of Dibrugarh for the year 1952-53 and his allegation is that the Deputy Commissioner by an illegal order restrained him from obtaining the lease and the Government of Assam have affirmed that order.

2. The facts of the case are as follows:

On 26-3-1952, the Chairman of the Dibrugarh Municipal Board with a sub-committee of the said Board put up to auction the settlement of the New Market for the year 1952-53 that is the right to collect tolls for the said period and Mahboob Khan was the highest bidder at the said auction and his bid being accepted by the authority, he deposited with the Municipality a sum of Rs. 21,690/-. But in a meeting of the Municipal Board held on 29-3-52, the Municipality by a resolution settled the market with Mahboob Khan only for the month of April, 1952 for a sum of Rs. 4,350/- and the balance of the money deposited by him was directed to be refunded. The Board further resolved that the next sale for the market would be held on 29-4-52 at 10 a. m and the auction was so held. In the auction of 29th April also, Mahboob Khan was the highest bidder, his bid going up to Rs. 44,800/- and Amir Khan, opposite party No. 4 and Abdul Majid, opposite party No. 3 were respectively second and third highest bidders. On 30-4-1952, the Municipal Board had discussion with regard to the settlement of the New Market for the year 1952-53 and the minutes of the meeting of the Board disclosed that a certain member of the Board brought a resolution in the meeting of the Municipality which ran as follows:

'Resolved that in view of the Deputy Commissioner's (Lakhimpur) opinion-Mahboob Khan, Amir Khan and Badshah Khan are undesirable persons, the settlement of the New Bazar be not made with any of them. The New Bazar be settled with the third bidder - Abdul Majid at his bid of Rs. 44,725/- for eleven months from 1st May 1952 to 31st March 1953 as the Deputy Commissioner has made no remark against him.'

An amendment was moved to this resolution by another member of the Board whereby it was recommended that the New Market be settled with the highest bidder Mahboob Khan at Rs. 44,800/-for eleven months from 1-5-1952 to 31-3-1953. The Municipal Board carried the amendment by eight to six votes and the Chairman of the Municipal Board by his letter No. 208/VIII-I dated Dibrugarh the 1st May 1952 conveyed to Mahboob Khan that his bid has been accepted and the New Ba-ear was settled with him at Rs. 44,800/- for eleven months commencing from 1st May 1952 in the light of the resolution passed by the Board.

3. Thereafter, the Deputy Commissioner, Lakhimpur (Opposite Party No. 1) on 14-5-1952, in exercise of his powers under Section 291, Assam Municipal Act, served on the Board an order suspending the execution of the aforesaid resolution of the Board and the order of the Deputy Commissioner was as follows:

'Whereas I am of opinion that the execution of the resolution passed by the Dibrugarh Municipal Board in its meeting held on 30-4-52, settling the Dibrugarh Municipal Market with Mahboob Khan for eleven months, is causing serious injury and annoyance to the public, I, therefore, in exercise of my powers under Section 291 of the Assam Municipal Act, hereby suspend the execution of the aforesaid resolution.

Sd/- M. Sultan'.

D.C.      

On receipt of the said intimation, the Municipal Board convened a special emergent meeting of the Board on 19-5-1952, and therein passed the following resolution the relevant portion of which is reproduced below:

'Resolved that in view of the Deputy Commissioner's above order and his previous opinion-Mahboob Khan, Amir Khan and Badshah Khan being undesirable persons, the new Market be not settled with any of them and it be settled with the next highest bidder - Abdul Majid for the interim period commencing from 21-5-52 till final order of the Government on Deputy Commissioner's above suspension order is received at Rs. 133/8/- per day ............provided he agrees to pay security of Rs. 4,005/-........... The lessee shall have to execute the usual Kabuliyat at his own cost'.

A counter proposal was moved in favour of settlement with Amir Khan, opposite party No. 4 but this also did not succeed. The net result was that the settlement with Mahboob Khan did not materialise and opposite party No. 3 was the temporary lessee on terms of payment of a daily premium which is the arrangement now continuing.

4. The main contention of the petitioner has been that the order of the Deputy Commissioner passed on 14-5-1952 against the interest of the petitioner is illegal, unwarranted/ discriminatory and amounts to an infringement of the fundamental rights as prescribed under Article 19(1)(g) read with Clause (6) of that Article. The petitioner further contends that the order of the Deputy Commissioner passed on 14-5-1952 being illegal and void, the resolution of the Municipal Board influenced by the said order is ineffective and that the Government's order affirming the order of the Deputy Commissioner is also without force the initial order itself being illegal.

5. The petition is opposed on behalf of the Deputy Commissioner as well as by the State of Assam and the Municipal Board (opposite party No. 2) makes no appearance.

6. The learned Advocate-General appearing on behalf of the State urged that this petition under Article 226 of the Constitution of India is liable to fail on the grounds, (1) that the order of Deputy Commissioner is purely an administrative order and the High Court in exercising its powers under Article 226 of the Constitution of India is not competent to examine the legality of the said order or question the correctness thereof; (2) the petitioner has not acquired any legal right for the enforcement of which he is competent to ask for any writ or relief under Article 226 nor has there been any violation of any of the fundamental rights given by the Constitution of India, His third objection is that a writ of Mandamus need not issue when the petitioner has other remedies and fourthly because of subsequent developments the writ of Mandamus now issued will not be effective.

7. Let me reproduce below Section 291 of the Assam Municipal Act which runs as follows:

'The Commissioner (in the case of the Assam Valley Division) or the Deputy Commissioner may, order in writing, suspend the execution of any resolution or order of the Board or prohibit the doing of any act which is about to be done, or is being done, in pursuance of, or under cover of, this Act, or in pursuance of any sanction or permission granted by the Board in the exercise of their powers under this Act, if, in his opinion, the resolution, order or act is in excess of the powers conferred by law, or the execution of the resolution or order, or the doing of the act, is likely to lead to a serious breach of the peace, or to cause serious injury or annoyance to the public, or to any class or body of persons.

When the Commissioner or the Deputy Commissioner makes any order under this Section, he shall forthwith forward a copy thereof, with a statement of his reasons for making it, to the Provincial Government which may thereupon rescind the order or direct that it continue in force with or without modification, permanently or for such period as it thinks fit'.

8. Before examining other points, let us first see whether there has been breach of any of the fundamental rights of the petitioner prescribed under the Constitution. Article 19(1)(g) relates to the freedom of an Indian citizen to practise any profession, or to carry on any occupation, trade or business. Clause (6) to the said Article places certain limitation to the enjoyment of the freedom and it provides that nothing in the Sub-clause (g) - shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe or prevents the State from making any law prescribing or empowering any authority to prescribe the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. In this case, Mr. Anmed's contention was that the petitioner had a right to bid for the market - but to hold a license was not his fundamental right, it being limited by the rules that exist and was subject to the approval of the Municipal Board. To hold a license or to trade under a license therefore, is not a fundamental right--nor is it one of the seven freedoms enjoined under the Indian Constitution.

9. Article 226, however, is not confined to the infringement of rights conferred by Part III of the Constitution--namely, the fundamental rights,--but relief may be given by the High Court for 'any other purpose' which has now been explained to mean in cases where the petitioner has a legal right or where legal duty was not performed. In this view, we must examine whether the Deputy Commissioner unjustly or illegally interfered with certain legal right that accrued to the petitioner and appropriate writs should be issued.

10. Mr. Ahmed has not contended that Section 291 of the Assam Municipal Act is ultra vires the Constitution of India. If, therefore, we find that the power of the Deputy Commissioner prescribed under the said section was duly exercised assuming of course that we have the power to examine it--we must hold that there was no infringement of the petitioner's legal right if any. There is some difficulty in our examining this position objectively, as we are not expected to go into disputed set of facts in disposing of a petition under Article 226 of the Constitution. Mr. Ahmed's contention is that an interference under Section 291 of the Assam Municipal Act was not justified under the circumstances, as there was no likelihood of any serious breach of the peace or of any serious injury or annoyance to the public or to any class or body of persons in case the petitioner got the settlement of the New Market for the current year. The Deputy Commissioner in his affidavit avers to the contrary. The matter can, therefore, be settled correctly on evidence which is not before us. Assuming the petitioner suffered loss because of a wrong order by an administrative officer,--the proper forum is a civil Court where evidence can be led and the extent of damage properly estimated. The learned counsel for the petitioner relied on--'Commissioner of Police, Bombay--v. Gordhandas Bhanji', AIR 1952 SC 16 (A). There the administrative officer failed to exercise his own discretion,--but that is not the case here. The order of the Deputy Commissioner dated 14-5-52 is surely an administrative order--where the officer was not required under the law either to hear evidence or to give an audience to the parties, though he did. It is not that in no case can the High Court interfere under its power prescribed under Article 226 where the order complained of is an administrative order but where discretion is left to the officer concerned, and it has been exercised by him and the procedure properly followed, the High Court will not interfere in dealing with a petition under Article 226 even though the order may be considered to be wrong on merits.

11. Mr. Ahmed has relied on three of the Lahore High Court decisions in support of the petitioner's case where relief was granted against Municipal Boards; but they are all single Judge's decisions in Civil Appeals and we get no assistance from them for dealing with a petition under Article 226. The cases relied on are--'Mohammad Hussain v. Municipal Committee, Sialkot', AIR 1936 Lah. 689 (B).--'Administrator, Lahore Municipality v. Jagan Nath', AIR 1939 Lah 581 (C)--'Mohammad Shafi v. Sialkot Municipality', AIR 1940 Lah. 451 (D). In --AIR 1936 Lah 689 (B), relevant facts are that in 1931, appellant Mistri Mohammad Hussain applied to the Municipal Committee for permission to construct a platform in front of his house and it was sanctioned by a resolution dated 20-7-1931 and a platform was accordingly raised. But in December 1933, the Deputy Commissioner acting under Section 232, Punjab Municipal Act, suspended the resolution of 20-7-31 and on 22-12-1933 the Committee served the appellant with a notice under Section 172 of the Act to demolish the platform. The appellant instituted a suit for an injunction to restrain the Committee from demolishing the platform. It was held by the High Court that the suspension of the resolution by the Deputy Commissioner under Section 232 of the Punjab Municipal Act could not affect the validity of the sanction granted and acted upon and that the circumstances were not such as would allow the Committee to proceed summarily under Section 172 and the notice under Section 172 was held to be invalid. It was held that the Deputy Commissioner could have suspended the execution of the resolution or prohibit the doing of a thing which was about to be done--therefore, the order was considered to be passed too late for fruition.

12. In--'AIR 1939 Lah 581 (C)',--similar point came up for consideration as to the effectiveness of the order of the Deputy Commissioner under Section 232, Punjab Municipal Act (which seems to be almost similar with the wordings of Section 291, Assam Municipal Act) and it was held that the Deputy Commissioner or the Commissioner could prohibit the doing of an act if it has not been already done or carried out, purporting to work under that section,--but after the resolution or order of the Municipality had been carried out,--an order under section 232 is ineffective and ultra vires. In--'AIR 1940 Lah 451 (D)', the point that came up for consideration was, whether a building that was constructed with the sanction of the Municipal Board before the order under Section 232 was passed could be demolished or dismantled, and that it was held that the order of suspension should be made, with a view to be effective, before the resolution or order of the Municipal Board is executed and not after.

13. Nobody disputes this interpretation of the section, but this has no application to the facts of the present case as no lease was issued to the petitioner in acceptance of his bid by the Municipal Board by their resolution of 30-4-52.

14. Mr. Ahmed has further relied on--'Mohammad Yasin v. Town Area Committee, Jalalabad', AIR 1952 S. C. 115 (E). There the legality of certain Municipal bye-laws was challenged in the light of the fundamental rights prescribed under the Constitution and it was held that the bye-laws were ultra vires the powers of the Town Area Committee formed under the United Provinces Municipal Act. Here, no such question arises, the powers of the Deputy Commissioner under Section 291, Assam Municipal Act, not being challenged.

15. I am discussing below some of the cases cited by Mr. Ahmed in support of his contention that the petition is maintainable.

16.--'Sm. Prabhatbati Devi v. District Magistrate, Allahabad', AIR 1952 All 836 (P). This was an application under Article 226 of the Constitution by Srimati Rani Prabhabati Devi, widow of the late Raja of Banaili against an order passed by the District Magistrate of Allahabad requisitioning her newly constructed house in the city. It was held therein by the Division Bench of the Allahabad High Court (Bind Basni Prasad and Gurtu JJ.) that while it cannot be said that in all cases in which there is an infringement of a fundamental right relief under Article 226 should be granted necessarily, nevertheless the Courts must see in each case whether in the circumstances it would be more convenient, effectual and beneficial to grant relief by means of a writ than to ask the applicant to seek it by a regular suit.' On merits it was found to be a fit case where writ should have been issued for infringement of the rights under Article 19(1)(f). It was further held that even if an order is not judicial or quasi-judicial in its nature or is purely administrative, High Court can interfere in exercise of its power under Article 226.

'Article 226 is now so wide that if any authority acts against law, then an application under that Article is maintainable against the authority for the issue of proper directions to act according to law'--in the words of Bind Basni Prasad J.

17. 'Union of India v. Elbridge Watson', AIR 1952 Cal 601 (G), is a decision by the Division Bench consisting of Harries C. J. and Baner-jee J. arising from an Income Tax matter, where difference between a writ of certiorari and a writ of Mandamus and a writ of Prohibition was discussed, Banerjee J. further observed that prayers should be specific and precise and the prayers must depend on the writs asked for. There is another passage in the judgment that is of some consequence in this case:

'Then again it is a well settled principle that in a petition for mandamus the petitioner must state his rights in the matter in question, his demand of justice and the denial thereof.'--'D. Parraju v. General Manager, B. N. Railway', AIR 1952 Cal 610 (H), is a judgment of Das J. wherein it was held that Article 226 does not supplant ordinary right of -action or remedy and for a person dismissed from service, a suit is more adequate, convenient, effective and complete remedy. The learned Judge quotes from the judgment of Meredith C. J.--'Eagaram Tuloule v. Estate of Bihar', AIR 1950 Pat 387 (P. B.) (I)--'Undoubtedly therefore Article 226 contemplates the issue of writs and directions for purposes other than the enforcement of the fundamental rights. At the same time, the words can hardly mean that the High Courts can issue writs for any purpose it pleases. I think the correct interpretation is that the words mean for the enforcement of any legal right and the performance of legal duty. To that extent the words must be read ejusdem generis which is the ordinary principle of construction.'

In our view, an application under Article 226 is maintainable against an administrative order and we have no reason to question the correctness of the views expressed in the above decisions.

18. One of the main defences of the opposite party has been that there was no completed contract with the Municipal Board inasmuch as requirements under Section 39, Assam Municipal Act, were not complied with and as such, the petitioner had acquired no legal right for the specific performance of which either the petitioner could nave sued or asked for relief in a petition under Article 226. And the second branch of this contention has been that even if it be conceded for argument's sake that the petitioner had acquired a contractual right, the proper forum would be a civil Court and not the High Court exercising its powers under Article 226 of the Constitution.

19. Section 39 of the Assam Municipal Act runs as follows:

'(1) The Board may enter into and perform any contract necessary for the purposes of this Act.

(2) Every contract made by or on behalf of a Municipal Board in respect of any sum exceeding five hundred rupees, or which shall involve a value exceeding five hundred rupees shall be sanctioned by the Board at a meeting, and shall be in writing, and signed by at least two of the members one of whom shall be the Chairman or Vice-chairman, and shall be sealed with the common seal of the Board. Unless so executed, such contract shall not be binding on the Board.'

20. In support of the first branch of this argument, the Advocate-General has relied on--'H. Young & Co. v. The Mayor and Corporation of Royal Leamington Spa', (1883) 8 A. C. 517 (J),--'Province of Bengal v. S. L. Puri', 51 Cal W. N. 753 (K),--'Municipal Council, Tiruvarur v. P. R. Kannuswami Pillai', AIR 1930 Mad 600 (L),--'Abdul Hamid v. Municipal Committee, Peshawar', AIR 1935 Pesh 124 (M),--'Municipal Board, Lucknow v. S. C. Deb', AIR 1932 Oudh 193 (F. B.) (N).

21. The case reported in--'AIR 1930 Mad 600 (L)', has much in common with the present case though the decision is in connection with a civil appeal and does not deal with Article 226. Section 69, Clause (1), Madras District Municipalities Act of 1920 lays down that every contract made by or on behalf of a Municipal Council shall be in writing and shall be signed by two Municipal Councillors. In the case under consideration, it was not done. It was also a case where the defendants were partners of the lessees who bid in an auction sale the right to collect tolls in a Municipal Market. The point formulated for decision by the High Court was

'whether the contract is null and void and the suit unsustainable because the terms of Section 69, Madras District Municipal Act were not complied with.'

Walsh J. who delivered the judgment discussed the case law exhaustively and referred to various decisions of the English and Indian Courts and came to the conclusion that where a corporation enters into a contract under a statute and the terms of the statute are not observed, the contract cannot be enforced against the Corporation, nor can the Corporation enforce it against the other party. The case reported in '(1883) 8 A. C. 517 (J)', was also referred to in the judgment.--'51 Cal W. N. 753 (K)' is a decision of the Calcutta High Court where it was held that the contract was not enforceable unless the formalities under Section 175, Government of India Act, were complied with, 'AIR 1932 Oudh 193 (P.B.) (N),' This was a matter in which Lucknow Municipal Board pleaded Section 97, U. P. Municipalities Act, as a defence. Section 97 is almost identical with Section 39 of the Assam Municipal Act except that the pecuniary limit is Rs. 250/-. The contract sued upon was not signed by any person specified in the said section. It was held that the contract was void and the party suing upon it was entitled to no relief. In--'AIR 1935 Pesh 124 (M)', a similar case as the present one is dealt with and it was held that there was never any enforceable agreement. The learned Advocate-General has further drawn our attention to the annotation of S. 65, Indian Contract Act by Pollock and Mulla, 7th Edition, wherein the learned commentator approved of the view held in the above decisions.

22. Mr. Ahmed for the petitioner concedes this legal position with regard to a contract entered into with the Municipal Board but his contention is that here the petitioner is not suing for specific performance of a contract, but for removal of the ban imposed by the order of the Deputy Commissioner suspending the operation of the resolution of the Municipal Board approving of the settlement of the Market with the petitioner. This almost amounts to a concession to the effect that the petitioner acquired no legal right so far as the settlement of the market was concerned, but that being the relief sought for in effect we must hold in agreement with the decisions above referred to that issue of writ under Article 226 will not be justified in the present circumstances in view of the fact that the petitioner's right to such relief is not beyond dispute even if not now existent.

23. With regard to the second branch of this argument, Mr. Lahiri has relied on--'Carlsbad Mineral Water Mfg. Co. Ltd v. H. M. Jagtiani', AIR 1952 Cal 315 (O),--'Dubar Goala v. Union of India', AIR 1952 Cal 496 (P),--'P. K. Banerjee v. L. J. Simonds', AIR 1947 Cal 307 (Q),--'Bukhtiarpur Bihar Light Rly. Co. Ltd. v. State of Bihar', AIR 1951 Pat 231 (R).

24. In--'AIR 1947 Cal 307 (Q)', the proceeding arose out of an application under Section 45, Specific Relief Act, by a contractor who entered into a contract for purchase of some articles with a public servant duly authorised for sale of salvage at Chittagong--paid the price--but he was refused delivery. It was held in appeal by a Division Bench of the Calcutta High Court, that in such a case, remedy if any, lay in filing a suit, and neither a mandamus could be issued nor a petition under Section 45, Specific Relief Act, could have been entertained. It was further held that if the contract did not satisfy the requirements under Section 175, Government of India Act,--there was no legal agreement which the petitioner could enforce by means of an order under Section 45, Specific Relief Act.

25. Cases reported in--'AIR 1952 Cal 315 (O), and--'AIR 1952 Cal 496 (P),' are both decisions by Single Bench--where issue of writs of Mandamus was discussed under Article 226 of the Constitution. It was held in both these cases--that issue of writs is not justified where only contractual right exists between the parties. In--'AIR 1952 Cal 315 (O)', J. P. Mitter J. has gone further to hold that the Court will not interfere to enforce the law of the land by extraordinary remedy of a writ of mandamus in cases where an action at law will lie for complete satisfaction and that where the factum of an agreement which is the foundation of the application for Mandamus, is in dispute, the Court will not use its discretion in the applicant's favour. In--'AIR 1952 Cal 496 (P)'. Bose J. observed following--'AIR 1947 Cal 307 (Q)', that it is an elementary proposition that a Mandamus does not lie to enforce or restrain the performance of a contractual obligation, and that it is inappropriate to grant a declaration under Article 226 that a particular contract is illegal and therefore unenforceable. In--'AIR 1951 Pat 231 (R)', it was held that where a party who has entered into an agreement with another party and is illegally dispossessed by the other in breach of the agreement, cannot ask the High Court for a writ of mandamus as the aggrieved party can get an effectual and adequate remedy by an ordinary action in the civil Court and that the grant of a writ of Mandamus is, as a general rule, a matter for the discretion of the Court and is not a writ of right.

26. Speaking of the nature of the high prerogative writs of Mandamus, the position is thus stated in Halsbury's Laws of England, Vol. 9, para 1269, p. 744.

'The writ of mandamus is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior court, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing such right; and it may issue in cases where, although there is an alternative legal remedy, yet such mode of redress is less convenient, beneficial & effectual.'

27. The general trend of decisions is, however, clear that no writ of Mandamus should issue unless the circumstances are such that referring the petitioner to seek remedy in Civil Court would almost make the result nugatory, or the relief delayed beyond measure. Breach of contractual obligations would always give a chance to the party to seek relief in Civil Courts and a petition under Article 226 is not a fit vehicle for seeking redress.

28. One of the points that goes to the very root of the matter is whether the High Court will be justified in issuing a writ in the circumstances of the present case. The petitioner contends that there has been an unwanted or unjustified interference with the rights of the petitioner by the Deputy Commissioner, Lakhimpur--and the learned Advocate-General appearing for the State urges that the order is not only justified on merits as it goes to support the Govt. policy of Opium prohibition in the province but is not justiciable and the High Court cannot interfere in exercise of its power under Article 226 unless it is shown that the order of the Deputy Commissioner is mala fide or passed in excess of jurisdiction or the power given under the Assam Municipal Act.

29. Various rulings have been cited in support of the contention by either side, but we need not advert to all of them, the law having taken practically a shape by now as to the jurisdiction of the High Court in the matter of issuing appropriate writs or orders in exercise of its power under Article 226. In--'State of Bombay v. Laxmidas Ranchhoddas', AIR 1952 Bom 468 (S) Chagla C. J. while discussing the legal position in a case where land was requisitioned by the Provincial Government observes as follows: 'The main and principal object of a writ of mandamus is to compel Government or its officers to carry out their statutory obligation. The duty of the Court is to see that Government or its officers do not overstep the limits and the bounds that the statute has prescribed for the exercise of their power. If the Legislature lays down that the power cannot be exercised except on the satisfaction of certain conditions and the officer exercises the power although the conditions are not satisfied, the Court will intervene and prevent the officer from acting contrary to the statute. The Court will pull up the Government or the officer and compel them to obey the mandate which the Legislature has issued ..........'

' * * * On the other hand, if the tribunal is deciding facts in issue or facts the decision of which is within its jurisdiction and for the purpose of which it has been created; then however wrong the decision on the facts may be, because the decision is within the jurisdiction of the tribunal the Superior Court will not interfere. Therefore, a clear line of demarcation is drawn as far as writs of certiorari are concerned, between cases where the Court will interfere and cases where the Court will not interfere.

There is nothing in principle, and there is none in authority either, why the same principle should not be applied to officers exercising the power conferred upon them by statute. If the power is unlimited, the Court undoubtedly cannot interfere. If certain matters are left to the descretion of the officer, the Court cannot control that discretion unless the discretion is arrived at mala fide or is not a proper exercise of discretion. .......... '

30. In my opinion, the law is correctly stated in the above passages. Here, there is no allegation of personal mala fides on the part of the Deputy Commissioner in passing the order complained of and we find nothing in the record to hold that the Deputy Commissioner did not exercise his discretion properly or acted in excess of his jurisdiction. The only contention on behalf of the petitioner has been that the circumstances did not justify an order of this nature, but who will be the judge of the situation?. There is no objective standard to be judged by this Court the matter being within the discretion of the officer concerned. The higher Court cannot control that discretion unless the discretion is arrived at mala fide or is not a proper exercise of discretion, in the words of Chagla, C. J. This being the position, this Court will not issue any writ or direction setting aside the order of the Deputy Commissioner dated 14-5-52 which had subsequently received the approval of the State Government envisaged under Section 291, Assam Municipal Act.

31. The Supreme Court decision reported in--'Veerappa Pillai v. Messrs. Raman and Raman Ltd' Kumbakonam', AIR 1952 SC 192 (T) gives sufficient guidance in the matter, which was a judgment in an appeal from the decision of the Madras High Court disposing of a petition under Article 226 in matters relating to permits for buses issued under the Motor Vehicles Act. In the words of Chandrasekhara Aiyar, J.: 'Such writs as are referred to in Article 226 of the Constitution are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice or refuse to exercise a jurisdiction vested in them or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the orders to be made.' Of the cases relied on by Mr. Lahiri, the decision of the Supreme Court reported in--'Ebrahim Aboobaker v. Custodian-General of Evacuee Property, New Delhi', AIR 1952 SC 319 (U) gives some assistance in the matter but it relates to the issue of a writ of certiorari. The decision of the Supreme Court reported in--'Parry and Co. Ltd. v. Commercial Employees Association, Madras', AIR 1952 SC 179 (V), also deals with the writ of certiorari. 'Hanumanbax Agarwalla v. Sub-Divisional Officer Sibsagar', AIR 1952 Assam 115 (W) is also a case dealing with the writ of certiorari.

32. There was another contention on behalf of the State that assuming the Deputy Commissioner's order was illegal or ineffective the Municipal Board itself has gone behind its offer of settlement of the market with the petitioner by its resolution of 19th May 1952, and opposite Party No. 3 is in possession of the market in pursuance of that resolution, and any writ now issued by the High Court will be infructuous. The only answer to this objection has been that the Municipal Board could not have passed a resolution retracting its former resolution within six months of its passing. In view of our decision that no writ should be issued by the High Court in this matter, we need not go into this objection.

33. The result is that the petition fails, and it is dismissed. We make no order as to costs.

Ram Labhaya, C.J. (Acg.)

34. I agree.


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