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HIGH COURT OF BOMBAY
CHAGLA, BAVDEKAR, SHAH, JJ.
Jeshingbhai Ishwarlal
Versus
.
Criminal Appln. No. 114 of 1950
Decided On : 14-04-1950
CONSTITUTIONAL LAW - FUNDAMENTAL RIGHTS - FREEDOM OF MOVEMENT - REASONABLE RESTRICTIONS - PUBLIC SECURITY MEASURES ACT (BOMBAY VI OF 1947), S. 2(1)(B) - VALIDITY - WRIT OF MANDAMUS - JURISDICTION OF HIGH COURT UNDER ART. 226 OF THE CONSTITUTION.
Fact of the Case:
The petitioner was served with an order by the District Magistrate, Ahmedabad, on 12th December 1949, directing him not to be in any area in the district of Ahmedabad except with the permission of the District Magistrate. The petitioner challenged the order on the ground that it was in violation of his fundamental right to move freely throughout the territory of India and to reside and settle in any part of the territory of India guaranteed under Art. 19(1)(d) and (e) of the Constitution. The order was justified on the ground that it was made under S. 2(1)(b) of the Bombay Public Security Measures Act (Bombay VI of 1947), which empowers the Provincial Government to make an order directing a person to not be in any area or place in the Province as may be specified in the order, if it is satisfied that the person was acting or is likely to act in a manner prejudicial to the public safety, the maintenance of public order, or the tranquility of the Province or any part thereof.
Finding of the Court:
The Court held that the order was void as it imposed an unreasonable restriction on the petitioner's fundamental right to move freely throughout the territory of India and to reside and settle in any part of the territory of India. The Court further held that the Bombay Public Security Measures Act, to the extent that it empowers the Government to issue externment orders under S. 2(1)(b), is void under Art. 13(1) of the Constitution, inasmuch as it imposes unreasonable restrictions on the fundamental rights of the citizen under Art. 19 (i), sub-cls. (d) and (e).
Issues: 1. Whether the order issued by the District Magistrate, Ahmedabad, restricting the petitioner's movement was a reasonable restriction on his fundamental right to move freely throughout the territory of India and to reside and settle in any part of the territory of India guaranteed under Art. 19(1)(d) and (e) of the Constitution? 2. Whether the Bombay Public Security Measures Act (Bombay VI of 1947), to the extent that it empowers the Government to issue externment orders under S. 2(1)(b), is void under Art. 13(1) of the Constitution?
Ratio Decidendi: 1. The Court held that the order was not a reasonable restriction on the petitioner's fundamental right to move freely throughout the territory of India and to reside and settle in any part of the territory of India guaranteed under Art. 19(1)(d) and (e) of the Constitution. The Court observed that the order was passed without giving any grounds to the petitioner, without affording him an opportunity to be heard, and without specifying any time limit for the duration of the order. The Court further observed that the Bombay Public Security Measures Act, to the extent that it empowers the Government to issue externment orders under S. 2(1)(b), is void under Art. 13(1) of the Constitution, inasmuch as it imposes unreasonable restrictions on the fundamental rights of the citizen under Art. 19 (i), sub-cls. (d) and (e). 2. The Court held that the Bombay Public Security Measures Act, to the extent that it empowers the Government to issue externment orders under S. 2(1)(b), is void under Art. 13(1) of the Constitution, inasmuch as it imposes unreasonable restrictions on the fundamental rights of the citizen under Art. 19 (i), sub-cls. (d) and (e). The Court observed that the Act does not provide for any safeguards to protect the rights of the person against whom the order is made, such as the right to be heard before the order is passed or the right to challenge the order in a court of law.
Final Decision: The Court issued a writ of mandamus directing the respondents to forbear from taking any action under the order dated 12th December 1949.
CHAGLA, C.J.- This is a petition by the petitioner against whom an order was served by the District Magisterial, Ahmedabad, on 12th December 1949 to the effect that he should not be in any area in the district of Ahmedabad except with the permission of the District Magistrate, Ahmedabad. This order is mainly challenged on the ground that it is in violation of a fundamental right guaranteed to the citizen under Art. 19(1), Sub-cl. (d) and (e). Those two Sub-clauses of Art. 19(1) provide that all citizens shall have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India and the contention of the petitioner is that to the extent that he is not permitted to be in the district of Ahmedabad his movement throughout the territory of India is restricted and his right to reside and settle in any part of the territory of India is also restricted and the contention is that these restrictions are in violation of the fundamental rights guaranteed to the citizen and thus the restrictions are bad The order is justified on the ground that it has been issued under S. 2(1), Bombay Public Seen its Measures Act Bombay VI (6) of 1947). That section enables the Provincial Government if it is satisfied that any person was acting is acting, or is likely to act, in a manner prejudicial to the public safety, the maintenance of public order, or the tranquility of the Province or any part thereof, to make an order - and we are concerned here with sub-cl. (b) -
"directing that, except in so far as he may be permitted by the provisions of the order, or by such authority or person as may be specified therein, he shall not be in say sues area or place in the Province as may be specified in the order."
2. Now, before I consider whether the order is justified by the provisions of this statute, it is necessary to consider a preliminary point that has been raised. That is a procedural point, and the question that we have to consider is whether this Court has the jurisdiction, assuming that the fundamental right of the citizen is affected, to issue any order on the District Magistrate calling upon him to forbear from preventing the petitioner from entering the district of Ahmedabad. It is clear, and Mr. Purshottam has not seriously disputed the position, that a writ of certiorari cannot be issued against any of the opponents. The very basis of a writ of certiorari is that the order challenged must be a judicial or a quasi judicial order and the authority passing the order must be discharging judicial functions. It is only when the Court is satisfied that the authority is acting in excess of jurisdiction or is exercising jurisdiction not vested in it or is refusing to exercise jurisdiction which is vested in it or in the exercise of its jurisdiction it is acting with material irregularity for instance, violating the rules of natural justice, that the Court would issue the prerogative writ of certiorari. In this case the order made by the District Magistrate is obviously an administrative order and such an order cannot be corrected by a writ of certiorari. But Mr. Purshottam contends that whatever might have been the position prior to 26th January 1950, and whatever might have been the jurisdiction of the Court prior to that historic date, after the passing of the Constitution the jurisdiction of this Court has been considerably enlarged, and in order to understand what the extent of the jurisdiction of this Court is we have got to for to the provisions of Art. 226. Before look to the provisions of that article, it is necessary to state what the jurisdiction of this Court was with regard to writs of certiorari and other writs. This Court had the jurisdiction to issue writs of certiorari and prohibition, but that jurisdiction was restricted territorially to the ordinary original civil jurisdiction of this Court. The Court had also the jurisdiction to issue writs in the nature of mandamus which
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