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.) Before going into the details of the controversy it is" necessary to bear in mind that the present application is for a writ of certiorari. Applications of this kind have been frequent in recent months and the jurisdiction of the Court to issue such writs has been considered in several cases. In Short and Mellor, the nature of the writ of prohibition is described as (p. 70): A judicial writ, issuing out of a Court of superior jurisdiction and directed to an inferior Court, preventing the inferior Court from usurping jurisdiction with which it is not legally vested, or, in other words, to compel Courts entrusted with judicial duties to keep within the limits of their jurisdiction. This was approved by the Lord Chancellor in Clifford and O Sullivan [1921] 2 A. C. 570, 589, and thereafter again accepted in Rex V/s. Electricity Commissioners: London Electricity Joint Committee Co. (1920), Ex parte [1984] 1 K. B. 171. This authoritative exposition of the nature of the writ has been accepted by a bench of our Court in Muljee Sicka & Co. V/s. Municipal Commissioner (1980) 41 Bom. L.R. 984 and more recently in Lady Dinbai Petit V/s. Noronha (1945) 47 Bom. L.R. 500.