RAMESH THAPER Vs. PROVINCE OF BOMBAY

JUDGEMENT

(1.) THIS is an appeal from a judgment of Goyajee, J., by which he held that a petition for a writ of Certiorari which was asked for by the petitioner and the appellant before us was not maintainable and the writ could not be issued against the Province of Bombay.

(2.) THE short facts which led up to this petition may be stated. The appellant is the editor and publisher of a weekly called "Cross Roads," and on 21st July 1948, he made a declaration as required by the Indian Press (Emergency Powers) Act before the Chief Presidency Magistrate. He had some difficulties in getting the necessary paper for printing the weekly and therefore the weekly could not be printed, and he filed a new declaration before the Chief Presidency Magistrate and the Chief Presidency Magistrate made an order calling upon him to deposit a sum of Rs. 1,000 under Section 7 (1), Press (Emergency Powers) Act. This was some time in April 1949, and the petitioner carried out the order by making the necessary deposit. In the third week of July 1949, the petitioner applied to the Chief Presidency Magistrate for the return of this deposit under Section 7 of that Act and the learned Chief Presidency Magistrate made an order on 26th July ordering the refund of the deposit. In the meanwhile, an order was issued by the Government of Bombay dated 20th July calling upon the appellant to cease publication of his paper from 23rd July to 22nd September 1949. This order was issued under Section 9A, Bombay Public Security Measures Act, 1947, and it is this order that is complained of by the appellant and it is with regard to this order that a writ of certiorari was applied for before the learned Judge. The learned Judge did not decide the petition on merits, but contented himself with holding that as the order of the Provincial Government was an executive order and not a judicial or a quasi judicial order, a writ of certiorari could not be issued.

(3.) IN order to determine whether the order made by the Government under Section 9A, Bombay Public Security Measures Act (Bom VI [6] of 1947) is an executive order or a judicial or a quasi -judicial order, we have to construe that section. Section 9A is in these terms : "It the Provincial Government is satisfied that such action is necessary for the purpose of preventing any activity prejudicial to the public safety, the maintenance of public order or the tranquillity of the Province or any part thereof, the Provincial Government may, -" Then the section goes on to specify the various kinds of action that Government could take under that section. It is perfectly clear that it is left to the satisfaction of the Provincial Government what action to take under Section 9A of the Act. They are constituted the sole judges of the necessity of the action. Therefore, it would be for Government to determine whether they should take any action at all, and if so, what should be the nature of the action. The narrow question that we have to decide on this appeal is whether the Legislature equally constituted the Government the sole judges as to the purpose for which action is to be taken. If I may put it in different language, whether the Legislature intended not only that Government should decide subjectively what action should be taken, but also decide subjectively as to the existence of the purpose for which action has to be taken within the meaning of Section 9A.