Muthuswamy Iyer Subramania Iyer And Others v. United State Of Travancore-Cochin

Krishna Pillai, C.J:— These petitions are filed by certain merchants of Quilon and Trivandrum. They allege that they have been carrying on trade as stockists and wholesale dealers in Jaffna tobacco, that they have by custom and law acquired vested rights in such trade, that certain steps are contemplated by Government which, if pushed through, would seriously prejudice them in the enjoyment of such rights and that such interference must be prohibited by writs in the nature of mandamus, prohibition and certiorari. The counter petitioners against whom the writ is sought for are the Honourable the Chief Minister, the Honourable the Minister in charge of Excise and Customs, and the Excise Commissioner in the United States of Travancore & Cochin. According to the petitioners, they are mentioned only as representing the Government and it was prayed that, if to make the proceeding effective and binding on Government the Chief Secretary to Government had to be placed on record as enjoined by recent statutes, the same may be allowed to be done. The Chief Government Pleader who appeared on behalf of the counter-petitioners rightly pointed out that there was no necessity to postpone the decision of the matter and that we might proceed to dispose of the matter as if the Government were the real contesting party in these proceedings. We have accordingly heard the arguments of learned counsel appearing on both sides. We are of the view that no prerogative writ is justified or called for and that the utmost that can be said in justification of these applications is that the petitioners have misconceived their rights.

2. It is necessary for a proper appreciation of the question of law involved in these proceedings that the following few facts mass be stated at the outset. From very early times the possession and sale of tobacco within the State of Travancore was restricted by statute and regulated by rules. The last of these was the Travancore Tobacco Act (I [1] of 1087) which superseded all prior Acts on the subject. It contained as many as thirty-four sections dealing with various topics but there was in all only one section which dealt with the right of possession and sale of tobacco. It was S. 4. This prohibited the possession and sale of tobacco except under rules framed under the Act. Section 31 of the Act, which dealt with the rule making power of Government, enabled Government to frame rules “permitting absolutely or subject to the payment of any duty or fee or to any ocher conditions.” In exercise of this power rules were issued on 6th July 1918 which provided for a system of licensing whereby stocking and sale of tobacco were authorised. Rule 80 provided that every person desirous of stocking tobacco shall do so by means of a license. Similarly rule 53 provided for a license for sale of tobacoo whether wholesale or retail. These rules provided for various conditions an infraction of which was penalized in various ways such as by revocation of the license and non eligibility for renewal of licenses. Thus though stocking and sale of tobacoo were permissible only under licenses, the license itself was obtainable by all who applied for it and who had the wherewithal to carry on the trade. The license was only for a period of one year and renewable on the same terms except for misconduct. While this system was in force the Government thought it necessary for purposes of public revenue to introduce a new system. They proposed that the right to stock and vend tobacco hitherto formed act on licenses be sold by public auction and knocked down to the highest bidder. With this object in view, the Government published a notification in the Government Gazette dated 12th July 1949 proposing to hold public auctions in various centres so that the new system might come into force from the 17th August 1949 when the prior licenses would be expiring. Almost simultaneously with the dates proposed for the conduct of the public auctions a fresh set of rules was published inaugurating the new scheme from the 17th August 1949. These rules were issued under Section 81 of the Tobacco Act (I [1] of 1087) and were in supersession or alteration of the existing rules issue under that Act. The auctions were to be held tentatively, for confirmation on the date the rules were to come into force. The question for consideration is whether, in the above circumstances, the petitioners are entitled to invoke the aid of this Court by the issue of any of the writs of mandmus, prohibition or certiorari. It is beyond doubt that the Government had done nothing in violation of by statutory right or privilege. The Legislature has invested the Government with the power of controlling and regulating the sale of tobacco by rules framed by them under the statute. The statute does not say what system the Government must adhere to or what method they shall not adopt. It has invested them with full powers to regulate it by rules, which involves also a power to modify it as often as they deem fit. This is clear from Section 14 of the Travancore General Clauses Act (II [2] of 1072). Under that section where a power is conferred on any authority to make rules, regulations or bye-laws the power shall be construed as including a power to rescind, revoke, amend or vary the rules, regulations or bye laws. It is therefore clear that the new system is as valid as the old both being in pursuance to statutory rules. The applicants are licensees entitled to Act so long as the licenses lasted and the licenses could last only be long as the rules themselves lasted, the length of time during which the party held a license under certain rules would not be sufficient authority for perpetual renewals regardless of the repeal of the rules. The utmost that he can claim is that, during the operating period of the license, his rights under the license should not be interfered with. That has not happened in this case. The new rules come into operation only after the licenses issued under the old rules have expired. These rules being statutory rules framed by Government in exercise of the powers delegated to them by the Legislature to frame rules, must be held to have as much statutory force as if they are the commands of the Legislature.

3. A writ of mandamus will be granted ordering that to be done which a statute requires to be done. It follows therefrom that a writ will not issue to compel a party to refrain from doing that which the law enjoins or permits. In R. v. Marshland Smeeth & Fen District Commissioners, (1920) 1 K.B 155 at 165: (89 L.J K.B 116) it was held that, in order for a writ of mandamus to issue for the enforcement of a statutory right it must appear that the statute in question imposes a duty, the performance or non-performance of which is not a matter of discretion and if a power or discretion only, as distinct from a duty, exists a writ of mandamus will not be issued by the Court. In Halsbary's Laws of England, 2 Edn. V. 9, page 768, it is observed as follows:

“The applicant for a writ of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought. In order, therefore, that a mandamus may issue to compel something to be done under the statute, it must be shown that the statute imposes a legal duty.”

4. It is equally clear from the decisions of Courts that no writ of mandamus will lie to the Crown and further that all persons acting as servants of the Crown are exempt from the prerogative jurisdiction of the Court. Section 45 of the Specific Relief Act (I [1] of 1877), in dealing with this power provides that nothing in it shall be doomed to authorise any High Court to make any order binding on the Secretary of State for India, the Government of India, the servants of the Grown or any Provincial Government. It in, however, pointed out in Halsbury's Laws of England, 2 End volume 9 page 762, that where Government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards such subjects, a writ of mandamus will lie for the enforcement of such duties. If a writ were to issue in the present case, it should be against Government prohibiting them from enacting new rules or from discharging their duties under the new rules framed under the statute. In other words a writ of mandamus issued in this case would be to ??? them from aoting in accordance with law and not from disobeying an injunction of law imposing the performance of a duty. If the parties are anxious that Government should ave no power to impose restrictions on the sale of tobacco by rules framed under the statute their remedy lies in an appeal to the Legislature or the repeal of the Tobacco Act and enactment of a new measure which allows full freedom of trade in this line. We may also point out in this case that the petitioners have failed to make out a case that they have acquired any statutory or customary right to carry on for ever the trade as stockists and sellers of tobacco, heir privilege was under a licence and it was license grimed under a statutory rule. There is no guarantee that the rule itself will be preserved for all time to come and that rights ??? under licenses will be treated is vested rights not liable to touched even by the appeal of the rules. It is one thing to say that license must be in force during the period of ??? currency, but quite another to say that when ??? system of licensing is abolished the licensee ??? entitled to have the license system continued.

5. The other writs referred to in these applications argued before us are equally out of place in this case. The writ of prohibition is directed to the Judge of an inferior Court or the parties to a suit therein or both conjointly requiring that the proceedings which have been commenced there be either conditionally stayed or peremptorily stopped. The object of the writ is to keep the Court to which it is directed within its proper jurisdiction. (See Orders on the Common Law of England, Edn. 3, Vol. II, p. 510). If such be the scope of a writ of prohibition, it is clear that it cannot issue in this case as neither the Chief Minister nor the Minister in charge of Excise nor the Excise Commissioner can be treated in any way as an inferior Court. Nor can they be held to act in excess of jurisdiction when such jurisdiction is expressly conferred on thorn by statute or more properly by statutory rules.

6. the writ of certiorari cannot, for similar reasons, be held to apply in this case. The remedy as a rule is only applicable where it is sought to review a judicial, as distinct from a ministerial act of an inferior tribunal. The system of farming out by public auction to the highest bidder the right to vend tobacco in any particular area cannot be said to partake of a judicial proceeding. The Tobacco Act invests Government with power to regulate the sale of tobacco. For such purposes they are authorised to issue rules which by force of the statute acquire as much authority as the statute itself. Government have in exercise of this powers issued certain new rules which superseded the existing rules and the functionaries mentioned here are only carrying out the purposes of these rules. Hence this remedy also does not lie in these cases.

7. Before disposing of these petition?, we would refer to an objection raised by the learned Government Pleader which was overruled by us at an early stage of the case. The learned Government Pleader contended that, though this Court was the highest tribunal in the land, it had no jurisdiction to issue any of the prerogative writs. Section 6 of the Ordinance (II [2] of 1124) under which this Court is constituted provides that this Court shall be a Court of record. Though it does not state what exactly are the jurisdictional powers of a Court of record, we must hold that they are not inferior to those of a Court of record which is a superior Court elsewhere. That this Court is a superior Court does not admit of any doubt for there is no other Court exercising jurisdiction over this Court. It is one of the powers of a Court record, especially of a superior Court elsewhere, that it has and should have the power to issue the prerogative writs such as mandamus, certiorari etc. The fact that the erstwhile Cochin High Court did not acknowledge that it had such jurisdiction or that the erstwhile Travancore High Court did exercise it in respect of judicial tribunals, not Courts strictly so called but all tribunals exercising judicial functions, is not of much importance. (See the decision in Krishnaswamy Iyer v. Ramambbha Naidu, 1948 T.L.R 715 and P.K Kunju v. Mythem Kunju, 1949 T.L.R 132 F.B). The jurisdiction and powers of the High Court are, according to S. 18 of the Ordinance (II [2] of 1124) to be exercised subject to the provisions of the Ordinance, and S. 6 of the Ordinance which declares this Court a Court of Record must be understood as conferring on this Court all the powers of a superior Court of record elsewhere. Nothing shall be intended to be out of the jurisdiction of the superior Court except that which especially appears to be so. There is no provision in the Ordinance which limits this power by words express or implied. So we are of the view that on proper cause being shown, this Court will issue any one of the prerogative writs which a Court of record and a superior Court will issue elsewhere under similar circumstances.

8. We therefore dismiss these Civil Miscelleneous Petitions with one set of costs to the Sirkar to be provided for in civil Miscllaneous Petition No. 37 of 1124.

Sankaran, J.:— I entirely agree.

Govinda Menon, J.:— I agree to the dismissal of all these petitions with costs as proposed by my Lord the Chief Justice. On the question whether this High Court, a creature of statute (Ordinance II [2] of 1124), possesses any inherent jurisdiction to issue any of the high prerogative writs, I do not wish to commit myself to any definite pronouncement now, as it is unnecessary to do so in this case for I am also of the view that the applicants before Court have not made out a case for the grant of extraordinary reliefs claimed by them. In spite of this Court being a Court of Record, I do entertain serious doubts whether its jurisdiction is not defined and circumscribed by S. 18 of the Ordinance. The decision of a Pall Bench of the erstwhile Cochin High Court in Karunakara Menon v. Alexander, (1121) 37 cochin 53 is to me a sufficient justification for entertaining doubts in the matter.

9. I, therefore, refrain from expressing any opinion on the question at present. My Lord the Chief Justice had said in Para. 7 of the judgment:

“Before disposing of these petitions, we would refer ??? an objection raised by the learned Government Pleader which was overruled by us at an early stage of the case.”

10. I take it that the reference is but to the decision taken to hear the advocates on the merits also.

11. Petitions dismiss.