JESHINGBHAI ISHWARLAL Vs. EMPEROR

JUDGEMENT

(1.) THIS is a petition by the petitioner against whom an order was served by the District Magistrate, Ahmedabad, on 12th December 1949, to the effect that he should not be in any area in the district of Ahmedabad except with the permission of the District Magistrate, Ahmedabad. THIS order is mainly challenged on the ground that it is in violation of a fundamental right guaranteed to the citizen under Article 19 (1), Sub-clauses (d) and (e ). Those two sub-clauses of Article 19 (1) provide that all citizens shall have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India, and the contention of the petitioner is that to the extent that he is not permitted to be in the district of Ahmedabad, his movement throughout the territory of India is restricted and his right to reside and settle in any part of the territory of India is also restricted, and the contention is that these restrictions are in violation of the fundamental rights guaranteed to the citizen and thus the restrictions are bad, The order is justified on the ground that it has been issued under Section 2 (1), Bombay Public Security Measures Act (Bombay VI [6] of 1947 ). That section enables the Provincial Government if it is satisfied that any person was acting, is acting, or is likely to act, in a manner prejudicial to the public safety, the maintenance of public order, or the tranquility of the Province or any part thereof, to make an order--and we are concerned here with sub-Clause (b) " directing that, except in so far as he may be permitted by the provisions of the order, or by such authority or person as may be specified therein, he shall not be in any such area or place in the Province as may be specified in the order. "

(2.) NOW, before I consider whether the order is justified by the provisions of this statute, it is necessary to consider a preliminary point that has been raised. That is a procedural point, and the question that we have to consider is whether this Court has the jurisdiction, assuming that the fundamental right of the citizen is affected, to issue any order on the District Magistrate calling upon him to forbear from preventing the petitioner from entering the district of Ahmedabad. It is clear, and Mr. Purshottam has not seriously disputed the position, that a writ of certiorari cannot be issued against any of the opponents. The very basis of a writ of certiorari is that the order challenged must be a judicial or a quasi judicial order and the authority passing the order must be discharging judicial functions. It is only when the Court is satisfied that the authority is acting in excess of jurisdiction or is exercising jurisdiction not vested in it or is refusing to exercise jurisdiction which is vested in it or in the exercise of its jurisdiction it is acting with material irregularity for instance, violating the rules of natural justice, that the Court would issue the prerogative writ of certiorari. In this case the order made by the District Magistrate is obviously an administrative order and such an order cannot be corrected by a writ of certiorari. But Mr. Purshottam contends that whatever might have been the position prior to 26th January 1950, and whatever might have been the jurisdiction of this Court prior to that historic date, after the passing of the Constitution the jurisdiction of this Court has been considerably enlarged, and in order to understand what the extent of the jurisdiction of this Court is we have got to look to the provisions of Article 226. Before I look to the provisions of that article, it is necessary to state what the jurisdiction of this Court was with regard to writs of certiorari and other writs. This Court had the jurisdiction to issue writs of certiorari and prohibition, but that jurisdiction was restricted territorially to the ordinary original civil jurisdiction of this Court. The Court had also the jurisdiction to issue writs in the nature of mandamus which fall under Section 45, Specific Relief Act, but the territorial jurisdiction was similarly restricted. The Court had also the jurisdiction to issue writs in the nature of habeas corpus under Section 491, Criminal P. C. , and as far as that jurisdiction was concerned, the extent of that jurisdiction was the whole Province or State of Bombay.

(3.) THE other argument advanced by the Advocate-General is that this order was made, as I pointed out, on 12th December 1949, and inasmuch as the order was made prior to the commencement of the Constitution, the Advocate General contends that in view of Section 6, General Clauses Act, the operation of the order is saved and the order cannot be challenged. But what Mr. Purshottam is doing before us to-day is not so much the challenging of that order as the assertion of a fundamental right which is granted to him after 26th January 1930, If we are satisfied that to-day when we are hearing this petition, the petitioner is deprived of his fundamental right of movement and of residence, then we can undoubtedly interfere. THE saving of the order under Section 6 does not mean that the State is entitled after 26th January to deprive a citizen of a fundamental right which is guaranteed to him. THEse fundamental rights have come into existence after 26th January. Our Constituent Assembly has provided remedies for safeguarding these rights. THEse rights have been made justiciable and therefore even though the operation of the order may have been saved by Section 6, General Clauses Act, as I said before we are not so much concerned with the validity of the order as the violation of the fundamental rights which have come into existence after 26th January 1950.