DESRAJ Vs. DY COMMISSIONER

JUDGEMENT

(1.) THE four petitioners ask for a writ of certiorari or other appropriate writ, order or direction for the purpose of ensuring that the first respondent, the Dy. Commissioner Jammu, does not revoke the consent which was accorded by him to the petitioners for instituting a suit under Sec. 92 of the Civil Procedure Code against the second Respondent and some others.

(2.) THE facts leading up to this petition lie within a brief compass and are not in dispute. The petitioners successfully applied to the first respondent for necessary consent for instituting a suit under Sec. 92 of the Code of Civil Procedure against the second respondent and others. After obtaining the consent, they instituted the suit in the court of the District Judge at Jammu. While the suit was pending, the second respondent moved the first respondent for revoking the consent. The first respondent thereupon caused notice to issue to the petitioners. The petitioners resisted the application of the second respondent on the ground, inter -alia, that the first respondent was not competent to revoke during the pendency of the suit the consent which was validly given by him. The first respondent over -ruled that objection and held that he was competent to review or revoke the consent which was previously accorded by him to the petitioner. The petitioners have therefore moved this court in writ.

(3.) THE first contention urged by Mr. Vidya Sagar learned counsel for the petitioners is that the first respondent in according the sanction for laying an action under Sec. 92 of the Code exercised a judicial or a quasi -judicial function and could not therefore seek to review his order unless a right of review was expressly conferred by statute. The learned Advocate General appearing for the first respondent has on the other hand contended that in giving consent under Sec. 92 the first respondent acted purely in an administrative capacity. It, therefore, falls for determination whether the first respondent in according sanction under S. 92 of the Code of Civil Procedure acted as a judge or a quasi -judge. There is nothing in the terms of Sec. 92 itself which enjoins upon a Dy. Commissioner the duty to act judicially; in granting the required consent. Nor does the essential nature of the function he has to exercise under this section partake of any judicial process. In R. v. Electricity Commrs., (1924) 1 KB 171, Atkin, L. J. pronounced the rule as follows: