GHULAM MOHIDEEN SAHIB Vs. DISTMAGISTRATE

JUDGEMENT

(1.) This application asks for the issue of a writ of prohibition to the District Magistrate of Chingleput, to prohibit him from further proceeding in the matter of an application under Section 12, Place of Public Resort Act (1888) made to him by one Chunnilal Sowcar. It is not necessary to set out the history of the matter in much detail. It is enough to say that an application for license was in the first instance made to the Local Panchayat as required by Section 198, Local Boards Act, and in accordance with the provisions of that section it was first dealt with by the President of the Panchayat and afterwards by the Panchayat body itself. On the assumption that notwithstanding the enactment of Section 198, Local Boards Act, the power under Section 12, Madras Act 2 of 1888 still subsists, the applicant moved the District Magistrate. The present application has been made to stop further proceedings, as the petitioner contends that the District Magistrate has no jurisdiction to do anything in the matter.

(2.) On behalf of the respondents, a point was raised, whether a writ of prohibition could be asked for at all in a case like this. Reference was made to the decisions of the House of Lords in Boulter V/s. justice of Kent (1897) A.C. 556 and in Clifford O Sullivan in re (1921) 2 A.C. 570 and it was contended that it is only to a "Court" that a writ of prohibition could be directed. On behalf of the applicant, Mr. Bhashyam Ayyangar relied upon the judgment of the Court of Appeal in Rex V/s. Electricity Commissioners (1924) 1 K.B. 171, where the decision in Clifford O Sullivan in re (1921) 2 A.C. 570 is referred to and explained, and contended that a writ of prohibition could be availed of in all cases in which at a later stage a writ of certiorari would be available. He maintained that for the purpose of these writs, the term Courts used in the earlier authorities has been very liberally interpreted in later pronouncements and all that was necessary was that the officer concerned should not be merely exercising ministerial functions. This contention is in a large measure well founded : see the cases collected in Venkataratham V/s. Secy. of State 1930 Mad. 896 and Zamindarini of Mandasa V/s. Ryot of Mandasa Zamindari 1934 Mad. 231, though it is neither practicable nor desirable to attempt a positive definition of the cases where the writs will be available. It is much easier to deal with the nature of the function exercised by the officer in question in each particular case and decide upon the maintainability of the application.

(3.) In the case on hand, the authorities; are no doubt acting in the exercise of a statutory power, but looking at the terms of the Place of Public Resort Act and the powers exercised by the several authorities to whom applications for license under that Act have to be made, it is not easy to say that their functions are such as can be controlled by a writ of prohibition or a writ of certiorari. For instance, in municipal areas the application has to be made to the Chairman and appeals from his orders lie to the Municipal Council. Let us look at the way that the authorities are expected to exercise their power, under Secs.6 and 7 of the Act. Though Sub-clause (b), Section 7 directs them to consider whether any objection to the grant of the license arises from the situation or ownership, of the place or building or the purpose proposed, the main consideration with reference to which the power is to be exercised is that of public safety; and for this purpose Section 6 empowers the licensing authority to inspect the locality, call upon the applicant to make additions or alterations in the material or arrangement of the building or in the precautions to be taken for the safety of the public to be assembled therein. Similarly Section 9, Clause (c) provides that the authority granting a license may revoke or suspend the same when it has reason to believe that the place or building can no longer be safely used for the purpose for which the license was granted. I find it difficult to accept the suggestion that considerations like these approach anything like a "judicial" consideration of the matter, based on "rights of parties." Again, seeing that Section 12 gives power to the District Magistrate to revise the orders not merely of officers ordinarily subordinate to him but also of the Chairman of the Municipal Council or of the Municipal Council as the case may be, it will not be right to say that when acting under Section 12, the District Magistrate is acting in his usual "judicial" capacity. No doubt he is referred to as District Magistrate in that connection apparently because, as already explained, the main scheme of the Act is to secure public safety and under the Indian administration the District Magistrate is of course very much concerned with questions of public safety. But that is different from saying that in exercising this power, he is acting judicially or as a Court. It is however not necessary for me to come to a final conclusion on the general question, because, even supposing that the officer concerned is one to whom a writ of prohibition can be issued, the question still remains whether there is any question of usurpation or excess of jurisdiction.