SUBRAMONIA IYER Vs. CHIEF MINISTER

JUDGEMENT

(1.) THESE petitions are filed by certain merchants of Quilon and Trivandrum. They allege that they have been carrying on trade as stockists and wholesale dealers in Jaffna tobacco, that they have by custom and law acquired vested rights in such trade, that certain steps are contemplated by Government which, if pushed through, would seriously prejudice them in the enjoyment of such rights and that such interference must be prohibited by writs in the nature of Mandamus, Prohibition and Certiorari. The counter-petitioners against whom the writ is sought for are the Honourable the Chief Minister, the Honourable the Minister in charge of Excise and Customs, and the Excise Commissioner in the United State of Travancore and Cochin. According to the petitioners, they are mentioned only as representing the Government and it was prayed that, if to make the proceeding effective and binding on Government the Chief Secretary to Government had to be placed on record as enjoined by recent statutes, the same may be allowed to be done. The Chief Government Pleader who appeared on behalf of the counter-petitioners rightly pointed out that there was no necessity to postpone the decision of the matter and that we might proceed to dispose of the matter as if the Government were the real contesting party in these proceedings. We have accordingly heard the arguments of learned Counsels appearing on both sides. We are of the view that no prerogative writ is justified or called for and that the utmost that can be said in justification of these applications is that the petitioners have misconceived their rights.

(2.) IT is necessary for a proper appreciation of the question of law involved in these proceedings that the following few facts must be stated at the outset. From very early times the possession and sale of tobacco within the State of Travancore was restricted by statute and regulated by rules. The last of these was the Travancore Tobacco Act (I of 1087) which superseded all prior Acts on the subject. IT contained as many as thirty-four sections dealing with various topics but there was in all only one section which dealt with the right of possession and sale of tobacco. IT was S. 4. This prohibited the possession and sale of tobacco except under rules framed under the Act. S. 31 of the Act, which dealt with the rule making power of Government, enabled Government to frame rules "permitting absolutely or subject to the payment of any duty or fee or to any other conditions." In exercise of this power rules were issued on 5th July 1913 which provided for a system of licensing whereby stocking and sale of tobacco were authorised. R.30 provided that every person desirous of stocking tobacco shall do so by means of a licence. Similarly R. 53 provided for a license for sale of tobacco whether wholesale or retail. These rules provided for various conditions an infraction of which was penalised in various ways such as by revocation of the license and non-eligibility for renewal of licenses. Thus though stocking and sale of tobacco were permissable only under licenses, the license itself was obtainable by all who applied for it and who had the wherewithal to carry on the trade. The license was only for a period of one year and renewable on the same terms except for misconduct. While this system was in force the Government thought it necessary for purposes of public revenue to introduce a new system. They proposed that the right to stock and vend tobacco hither to farmed out on licenses be sold by public auction and knocked down to the highest bidder. With this object in view the Government published a notification in the Government Gazette dated 12th July 1949 proposing to hold public auctions in various centres so that the new system might come into force from the 17th August 1949 when the prior licenses would be expiring. Almost simultaneously with the dates proposed for the conduct of the public auctions a fresh set of rules was published in the Government Gazette dated 26th July 1949 inaugurating the new scheme from the 17th August 1949. These rules were issued under S. 31 of the Tobacco Act (1 of 1087) and were in supersession or alteration of the existing rules issued under that Act. The auctions were to be held tentatively, for confirmation on the date the rules were to come into force.

(3.) THE other writs referred to in these applications argued before us are equally out of place in prohibition is directed to the Judge of an inferior court or the parties to this case. THE writ of a suit therein or both conjointly requiring that the proceedings which have been commenced there be either conditionally stayed or peremptorily stopped. THE object of the writ is to keep the court to which it is directed within its proper jurisdiction. (See Odgers on the Common Law of England, Third Edition, Volume 2, page 510). If such be the scope of a writ of prohibition, it is clear that it cannot issue in this case as neither the Chief Minister nor the Minister in charge of Excise nor the Excise Commissioner can be treated in any way as an inferior court. Nor can they be held to act in excess of jurisdiction when such jurisdiction is expressly conferred on them by statute or more properly by statutory rules.