KAIKHUSHRU SORABJI Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) THIS rule was issued at the instance of the petitioner calling upon the respondent to show cause why a writ of certiorari should not be issued against him for production of the records, relating to the order dated October 2, 1945, under which the respondent ordered that the telephone connection of Mr. B. Shah numbered 30323 be cut off for a period of one year, and that the said Mr. B. Shah do forthwith surrender the telephone apparatus installed at the place mentioned in the order and the fittings in connection with it. In the petition it is stated that the petitioner is carrying on business of selling cold-drinks in a shop at Marwadi Bazaar. According to him the telephone is used for his business and by his clients. When the order was handed over to him on October 2, 1945, he asked the officers why the order was so made. According to the petitioner those officers told him that the telephone was being used for recording bets in American futures and for other gambling purposes. The petitioner protested but without any result. The petitioner then applied to the respondent to cancel the order but got no relief. He- applied to the Adviser to H. B. the Governor of Bombay in the Home Department to review the order, but his application was rejected. He has therefore made this petition for the issue of the writ as mentioned above,

(2.) WHEN the application was made on November 15, J granted the rule because it was contended that using the telephone for the purpose of gambling was not a user against which an order under Rule 17 (i) (a) (H) (a) of the Defence of India Rules could be made. The respondent has filed affidavits in reply. He has denied the conversation alleged to have taken place between the petitioner and the police-officers at the time the order was served. In his affidavit the respondent has stated that he had passed the order as he was satisfied that the telephone was being used in a manner which was not in public interest but was detrimental to it. The two police-officers have also made a joint affidavit denying the conversation alleged by the petitioner in his affidavit. The petitioner has filed an affidavit in rejoinder stating that the conversation did take place, and that the denial of the police-officers was untrue. The learned counsel appearing for the petitioner applied for leave to lead oral evidence to substantiate his allegation about the conversation and to disprove the denial of the police-officers. He also contends that the deponents on the other side must be tendered for cross-examination, so that it may be determined by the Court whether the telephone was disconnected on the ground of gambling, as alleged by the petitioner, or on the ground of public safety, as alleged by the respondent.

(3.) IT appears to me that unless the authority invested with the power to pass: an order had to act judicially, i. e. to weigh a question from two sides and decide on the matter, no question of quasi-judicial act can arise. The two sides cannot include himself as he is the deciding authority. In respect of orders permitted to be passed under the Defence of India Act and Rules, I am unable to hold that in every case the authority passing the order necessarily acts in a quasi-judicial capacity. Section 15, as worded, is applicable to every order passed under the Act, as the order is bound to affect the personal freedom or avocation of an individual or the use of the' individual's property. I am therefore unable to accept the larger contention urged on behalf of the petitioner that because of Section 15 of the Defence of India Act every order passed under the rules is necessarily of a quasi-judicial character. To borrow the words of Das J. in In re Banwarilal Roy (1844) 48 C. W. N. 766, whether an act is a judicial or quasi-judicial act, -or a purely executive act, will depend on the terms of the particular rule, the nature, scope, and effect of a particular power, in exercise of which the act may be done read with the provisions of Section 15 of the Act.