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The Bangalore District Hotel Owners' Association Vs. the District Magistrate and Anr. (20.11.1950 - KARHC) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. No. 31 of 1950-51
Judge
Reported inAIR1951Kant14; AIR1951Mys14
ActsConstitution of India - Article 226; Specific Relief Act, 1877 - Sections 45
AppellantThe Bangalore District Hotel Owners' Association
RespondentThe District Magistrate and Anr.
Appellant AdvocateS.K. Venkata Ranga Iyengar, Adv.
Respondent AdvocateAdv. Gen.
DispositionApplication dismissed
Excerpt:
.....before us an association could apply for a mandamus or such other remedy to vindicate the personal rights or rights of property or franchise of its individual members. but that is quite a different thing from saying that for some personal and individual grievance of some of its members the association can agitate and apply for such extraordinary and discretionary writs which are clearly meant to prevent the taking away or abridging the fundamental rights conferred on individual citizens by part iii of the constitution. he complained that the ward lists had not been prepared according to sub-sections (8) and (4) of the act and that his name wag placed among a community and not placed strictly according to alphabetical order among the voters as prescribed by the rules though he was..........and in that view the respondent was not entitled to succeed unless he showed clearly that he bad a specific right, to enforce which he had asked for the interference of the court, that he had claimed the exercise of that right and none other and that his claim had been refused.7. in a. rasul in the matter of, 41 cal. 518 : (a. i. r. (2) 1915 cal. 91) which was a case of an application for the issue of a writ of mandamus, the applicant claimed that in consequence of his appointment for two years as a lecturer in the calcutta university he was entitled to receive certain remuneration, but that after the first year the governor-general in council had refused to sanction his appointment and the senate had declined to continue him in the same. when it was pointed out that it had not been made.....
Judgment:

Vasudevamurthy, J.

1. This is an application under Article 226 of the Constitution of India filed by the Bangalore District Hotel Owners' Association against the District Magistrate, Bangalore, and the Government of Mysore represented by the Chief Secretary for the issue of 'writs of certiorari, prohibition or other appropriate writ or writs' to cancel the order of the District Magistrate, Bangalore District, notified in the Mysore Gazette on 10-11-1949, directing that all hotels, restaurants, milk bar and coffee clubs, etc., in the villages of the Bangalore District except those as are licensed by the Amildar of the Taluk under the Village Panchayat Act should be closed immediately. The Association is said to have been registered under the Mysore Societies Registration Act III [3] of 1904 on 14-3-1950.

2. In support of the application an affidavit has been filed by the Hon. Secretary of the Association. In that affidavit it is stated that the objects of the Association are inter alia to promote the welfare of the hotel owners who are members of the Association and to represent trade difficulties of those members to the concerned official bodies. It is said that the notification was enforced in Bangalore Taluks North and South, by the police and food officials raiding the hotels and some of the hotel owners were prosecuted for the alleged infringement of the notification, that the notification has not been withdrawn in spite of the representations made to Government and to the District Magistrate and that the notification is being used by the officials to stop the business of some of the hotels, the proprietors of which the officials do not want to oblige. It is further said that the District Magistrate or the Government has no power to issue such a notification under Rule 81, Defence of India Rules, and to order closure of hotels as this would involve the complete stoppage of a trade on which the members of the Association are solely depending for their livelihood. It is also complained that the provisions of the Mysore Village Panchayat Act regarding the issue of notices, etc., are not being observed and that the notification itself contravenes the fundamental rights guaranteed under the Constitution for every citizen to pursue any occupation trade or business, by totally prohibiting the carrying on of the trade or business of the hotel owners.

3. The notification in question purports to be issued is exercise of Sub-rule (2) of Rule 81, Defence of India Rules, as applied to Mysore and continued by the Supplies, Services and Miscellaneous Provisions (Temporary Powers) Act XX [20] of 1947, and all other powers in this behalf, with a view to conserve the use of the essential food, grains and other essential articles required for the life of the community in villages. It directs that only such hotels, milk bars, restaurants and coffee clubs, etc., as are licensed by the Amildar of the Taluk under the Village Panchayat Act should be allowed to run and others which have not been so licensed under that Act should be closed immediately. The District Magistrate, Bangalore District, has filed by way of objections a detailed affidavit setting out the circumstances under which the notification came to be issued. He has in particular referred to the necessity for issuing such a notification as having been created by the scarcity of essential food-grains and articles caused by the abnormal increase all over the State of hotels which were absolutely unnecessary for the use of the village community and which used up such articles. He has also raised a preliminary objection by way of a bar to the hearing of this application. The objection is that the petitioner has no locus standi or right to apply for such writ or other reliefs, as claimed in the petition. We have heard arguments on this objection regarding the bar to the application and as we are inclined to agree with the respondents in this matter, it is unnecessary for us to consider the other objections raised on their behalf.

4. Under Article 19(g) which finds a place in Part in of the Constitution of India, all citizens shall have the right to practise any profession, or to carry on any occupation, trade or business. Under Sub-clause (6) of that Article it is provided that nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by the said sub-clause. The latter portion of that sub-clause is not relevant for purposes of this case. Article 226 of the Constitution of India declares that every High Court has powers throughout its territorial jurisdiction to issue, to any person or authority, including in proper cases any Government within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. Part III relates to fundamental rights and there is, therefore, no doubt that in appropriate cases, the High Court can issue writs as contemplated by Article 226 to safeguard, protect and enforce the fundamental rights granted under part III of the Constitution.

5. Mr. S. K. Venkata Ranga Iyengar, learned advocate for the petitioner, contends that the notification in question amounts to a prohibition of persons from carrying on the trade, occupation or business of keeping hotels etc., and that his client is entitled to a writ of mandamus directing the District Magistrate and the Government not to enforce the notification. Section 45, Specific Relief Act, states:

'The High Court of Mysore may make an order requiring any specific act to be done or forborne, within the limits of its appellate jurisdiction, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or inferior Court of judicature; provided:

(a) that an application for such order be made by some person whose property, franchise, or personal right, would be injured by the forbearing or doing (as the case may be) of the said specific act.' In this case the application is made on behalf of an Association and Mr. Venkataranga Iyengar has not been able to cite any authority where in a case like the one before us an Association could apply for a mandamus or such other remedy to vindicate the personal rights or rights of property or franchise of its individual members. It is seen from the application and affidavit that no specific instance or case has been given of any person against whom action has been taken and whose hotel has either been raided or stopped under the notification. Mr. Venkataranga Iyengar contends that the Association is a corporate body and that it can therefore make such application to the Court in its own name. Under Section 7, Societies Registration Act, it is provided that a society which is registered under that Act may sue or be sued in its own name and for that purpose it may have a corporate existence of its own. And if there was any action or order by which the fundamental rights of the Association as such, say for example, under Article 19(b) or (c) or its rights of property or franchise were affected or jeopardised, it may be that such an application may be maintainable.

But that is quite a different thing from saying that for some personal and individual grievance of some of its members the Association can agitate and apply for such extraordinary and discretionary writs which are clearly meant to prevent the taking away or abridging the fundamental rights conferred on individual citizens by Part III of the Constitution. Although no specific cases appear to have arisen on this aspect of the matter after the Constitution of India came into force we have some earlier rulings which are useful in deciding the matter.

6. In Bank of Bombay v. Sulaiman Somji, 32 Bom. 466; (35 I.A. 130 P.C.) a shareholder of a bank applied to the Bank to be permitted to inspect, copy and make extracts from the register of shareholders. The Bank refused to allow inspection but offered to famish him with a list if he could satisfy them that he requited it for use in his own interests as a share-holder. Without accepting the offer, the respondent brought a suit against the Bank in which he alleged various irregularities in the management of the Bank and in the election of its Directors and other matters and claimed inspection of the register to enable him to communicate to the other share-holders and obtain their assent to resolutions for improvement in the Bank's management to be proposed at a future meeting. His suit was dismissed in the trial Court and allowed by the High Court. The Bank appealed to the Privy Council and their Lordships of the Privy Council held that the suit should be treated according to the principles regulating the application for writ of mandamus and in that view the respondent was not entitled to succeed unless he showed clearly that he bad a specific right, to enforce which he had asked for the interference of the Court, that he had claimed the exercise of that right and none other and that his claim had been refused.

7. In A. Rasul In the matter of, 41 Cal. 518 : (A. I. R. (2) 1915 Cal. 91) which was a case of an application for the issue of a writ of mandamus, the applicant claimed that in consequence of his appointment for two years as a lecturer in the Calcutta University he was entitled to receive certain remuneration, but that after the first year the Governor-General in Council had refused to sanction his appointment and the Senate had declined to continue him in the same. When it was pointed out that it had not been made out by him that he was properly appointed for two years, he sought to contend that his application may be treated as one by a person interested to enforce a statutory duty imposed upon the University to make provision for the instruction of students under Section 3, Universities Act, VIII [8] of 1904. Dealing with this contention Chowdhary J. observed :

'Before dealing with the question of statutory duty, if any, involved in this case I have to see what the personal right is, Section 45 requires some right in the person applying, it must be some interest in him other than such as may belong to the community at large.'

8. In Shankar Lal v. Municipal Commissioner, Bombay, A.I.R. (26) 1939 Bom. 431: (186 I. C. 203), an application was made under Section 45, Specific Relief Act, for an order requiting the Municipal Commissioner of Bombay to forbear from doing certain acts, viz. to declare the result of a general election of Councillors which had been held and other connected acts. He complained that the ward lists had not been prepared according to Sub-sections (8) and (4) of the Act and that his name wag placed among a community and not placed strictly according to alphabetical order among the voters as prescribed by the rules though he was enrolled as a voter in his own ward. It was contended for him that every voter had a right to vote and to see that others vote according to a properly prepared electoral roll and such a roll not being there the applicant's right was injured. That contention was negatived and as one of the grounds for refusing to issue the writ Wadia J. said that:

'Even assuming that the ward lists have not been prepared strictly according to those sub sections the applicant must still satisfy the Court before invoking its extra-ordinary jurisdiction (under Section 45, Specific Relief Act) that the ward lists and the electoral rolls based upon them would have injured his franchise or personal right.'

Thus only a person whose property, franchise or personal right would be injured by the for bearing or doing of the specific act can make an application under Section 45, Specific Relief Act. The applicant must show that he had a real and special interest in the subject-matter and special legal right to enforce. See R. v. Lewisham Union, (1897) 1 Q. B. 498, Elwood v. Belfast Corporation, (1923) 57 L. T. 138 and In re Jatindra Mohan Sen : AIR1925Cal48 , and also Halsbury's Laws o f England, Vol. 9, Para. 1481 where it has been pointed on that an application for a writ must be made by an aggrieved party and not merely by one of the public.

9. For the above reasons we are of the opinion that the present application is not maintainable and must be dismissed, and we order accordingly. The petitioner will pay the costs of the respondents (Advocate's fee Rs. 50).


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