Krishnankutty v. State — 1951 DIGILAW 5 (KER)

Judgment :- This Original Petition is filed by the toddy shop contractor of Shop No.7, Perumanur, Ravipuram (Cochin area) against the Travancore-Cochin State invoking this Court's jurisdiction under Art. 226 of the Constitution and S.18 of the Travancore-Cochin High Court Act. The relief asked for in the petition is that the Court should "call for the records and quash the (Government) order D. Dis 6139/50 R.D. dated 4.10.1950 and direct the Board of Revenue to refrain from enforcing the contemplated transfer of location of toddy shop No. 7 and from interfering with the conduct of the petitioner's business at the present site by a writ of certiorari or other appropriate writ." The order sought to be quashed is marked here as Ext. A, and the relevant portion thereof reads thus: "Order L. Dis No. 6139/50/R.D. dated 4.10.1950. Government do not find sufficient reason to interfere with the orders of the Board of Revenue directing the petitioner to shift the shop from the present site and conduct it at or about the site on which it was conducted in 1124 or 1125; The petition is therefore dismissed. The petitioner is however granted three weeks' time from today to carry out the orders of Board of Revenue." 2. The circumstances which lead to this petition can be briefly stated as follows: The petitioner was the highest bidder at the sale held under the authority of Government of the privilege of vending toddy in the above shop for the period of 17.8.1950 to 31.3.1952 and the sale was in due course confirmed in his name. He obtained a temporary license and opened the shop at a site selected by him. Objections were however raised to the shop being conducted at that site by the licensee of toddy shop No. 6, by the general public and also by local authorities and institutions. The Board of Revenue therefore refused to approve the site selected by the petitioner and wanted the petitioner to shift the shop to the place in which it was held in 1124 or 1125. The petitioner immediately moved the Honourable Minister for Excise to rescind this order and permit him to continue the shop at the site selected by him. The petition filed in that behalf is dated 16.9.1950 and is marked as Ext. C in this proceeding. The petitioner immediately moved the Honourable Minister for Excise to rescind this order and permit him to continue the shop at the site selected by him. The petition filed in that behalf is dated 16.9.1950 and is marked as Ext. C in this proceeding. The Minister permitted the petitioner provisionally to continue to run the shop at the place chosen by him and called for a report from the Revenue Board about the petitioner's complaint. That report is Ext. VIII here. Ultimately the Honourable Minister declined to interfere with the Revenue Board's decision that the petitioner should shift his shop from its present site. This was on 4.10.1950 and it is that order which forms the subject of this proceeding. The petitioner filed an application to review the order, but that application also met with the same fate as the original one. This Original Petition was filed immediately after, namely, on 12.11.1950. An interim order prohibiting Government from enforcing the order to shift the shop to another site was first granted by the Court for a limited period and that order was afterwards allowed to remain in force until the disposal of this petition. 3. The petitioner's case is that the site selected by him for his shop is within the limits prescribed by the Government Notification under which the sale has been held and that the opposition to his continuance there was all manipulated by the present licensee of shop No. 6 who held the license for Shop No. 7 in previous years and that the objections raised to it are all unfounded and raised purely to spite the petitioner. It would appear that Narayanan, the old licensee did not like the petitioner competing with him at the sale of this shop and it is seen that that Narayanan has been openly moving the authorities to get the petitioner's shop shifted from its present site. Among the grounds urged the one that the shop was within prohibited distance from his shop No. 6 was given sufficient prominence. Reference can now conveniently be made to the rules guiding the location of the shops and the Revenue Board's powers in that matter. These are to be found in Cls.1 and 2 of the Government Notification regarding conditions and rules for the sale of abkari and opium shops published on pp. Reference can now conveniently be made to the rules guiding the location of the shops and the Revenue Board's powers in that matter. These are to be found in Cls.1 and 2 of the Government Notification regarding conditions and rules for the sale of abkari and opium shops published on pp. 435 to 444 of Part I of the Travancore-Cochin Government Gazette dated 2.5.1950 under the caption "General Conditions applicable to all Abkari and Opium Licenses." These Clauses occur on pp. 437 and 438 and they are practically the same as Cls.1 and 2 of the rules found on p. 230 of Vol. I of the Cochin Excise Manual. The two Clauses as they occur in the Manual may be quoted here with advantage with the necessary adaptations as are found necessary by changes introduced into them as published in the Gazette dated 2.5.1950. "1. Shops should as far as practicable be located beyond two furlongs of a market, school, place of public worship, hospital, factory, public offices, Railway lines and similar places of public resort. There should be as a rule half a mile between shop and shop in Municipal towns and one mile in rural areas. Toddy shops should wherever practicable be located 40 yards removed from public roads or places. 2. Subject to the restrictions contained in C1.1, each shop sanctioned as per schedule for each town or desam may in the first instance be opened anywhere in such town or desam provided that the Revenue Board may in its discretion, refuse to approve of any particular site selected and provided also that no arrack and toddy shop within the distance of half a mile and no opium or ganja shop within a distance of 3 miles of the British frontier shall under any circumstances be removed closer to the frontier than its location in previous years and that no new opium or ganja shop shall be opened within 5 miles of the British frontier. The Revenue Board shall also have the power to order the removal of a shop once licensed or to alter or modify the limits of the location of the shops as originally notified should the necessity for so doing subsequently arise. On the application of the licensee transfers may, in its discretion, be sanctioned by the Board, provided there are good reasons for so doing. On the application of the licensee transfers may, in its discretion, be sanctioned by the Board, provided there are good reasons for so doing. Shops, however shall not, under any circumstances, be transferred from one town or desam to another; but if in the opinion of the Board it is found that transfer is necessary the Revenue Board may at its discretion, sanction such transfer. When, however, a shop is sanctioned for a particular part of a desam, it shall be located only in such part and cannot be removed to any other part of the desam, nor shall the other shops in the desam be located in this particular part of the desam, or unless otherwise specified in the schedule within such proximity to it as would be likely, in the opinion of the Board to prejudice its sales. This restriction also applies to shops in the neighbouring desams. The location of a shop once sanctioned for a village or desam with no fixed site will not be interfered with either because they are not established where certain people want them or because they are affecting the sales of shops of other desams or village shops also without fixed sites." 4. The earlier part of Cl. 2 no doubt gives to the licensee the right to choose the site. At the same time the Revenue Board is given the authority to refuse to approve the site selected by the licensee. The subsequent portions of the clause also show that the Board has wide powers to direct even a shop once licensed to be shifted from its approved site. We are however not concerned in this case with those part of Cl. 2 as no license has been granted with respect to the particular site in question. Practically the argument of Mr. M.K. Nambiar of the Madras Bar who represented the petitioner before me turned round the second half of the first part of Cl. 2 which states that the Revenue Board may, in its discretion, refuse to approve any particular site selected by the licensee. It is self-evident that the Board's refusal to approve the site was under the authority vested in it under this provision. Mr. Nambiar's argument was however two-fold. 2 which states that the Revenue Board may, in its discretion, refuse to approve any particular site selected by the licensee. It is self-evident that the Board's refusal to approve the site was under the authority vested in it under this provision. Mr. Nambiar's argument was however two-fold. One was that the said clause is void, under Art.13(2) of the Constitution in that it contravened fundamental rights guaranteed to the citizens of the Union under Art.19 Cl. (1) Sub-cl. (f) and (g) and that the order passed under the purported authority of that void provision was itself null and void. The other was an alternative contention that assuming the provision conferring authority on the Revenue Board is good, the order is otherwise bad in that the jurisdiction was exercised improperly or irregularly and without bonafides. On this latter aspect the attack was more on the conduct and the order of the Revenue Board rather than of Government's order or their conduct. It was even contended that the Revenue Board has not really passed any order disapproving the site and that the Government order was therefore bad for that reason also. 5. Before proceeding to discuss these arguments one or two preliminary points mentioned by the learned Advocate-General who represented the State has to be adverted to. It was first said that the Government order sought to be quashed was a pure administrative or executive order and that it was not therefore open to this Court to test or examine its validity under Art. 226 of the Constitution or S.18 of the High Court Act. So far as it is material for our purpose the provisions of S.18 of the High Court Act are the same as in Art.226 and it is not therefore necessary to refer to that section independently. The argument that the matter before the Court is not justifiable cannot be accepted for the reason that under Art. 226 this Court has a duty to see that fundamental rights guaranteed by the Constitution are not violated by any law or rule or any action taken thereunder. That this is the correct view will be clear from the decision of the Supreme Court in Rashid Ahmed v. Municipal Board Kairana - A.I.R. 1950 Supreme Court 163 and that of the Bombay High Court in Jeshingbhai v. Emperor - A.I.R. 1950 Born. 363 (F.B.). That this is the correct view will be clear from the decision of the Supreme Court in Rashid Ahmed v. Municipal Board Kairana - A.I.R. 1950 Supreme Court 163 and that of the Bombay High Court in Jeshingbhai v. Emperor - A.I.R. 1950 Born. 363 (F.B.). In the case first named referring to the jurisdiction of the Supreme Court under Art. 32 Mr. Justice S.R. Das who pronounced the judgment of the Court said that the powers given to the Supreme Court under that Article are much wider than those enjoyed by the Chartered High Courts before the Constitution came into force and are not confined to issuing prerogative writs only. What is true of the Supreme Court under Art. 32 regarding the Union is true of this Court under Art.226 so far as this State is concerned. In the latter case a preliminary objection was raised on behalf of the State of Bombay that an administrative order passed by the District Magistrate under the Bombay Public Security Measures Act cannot be quashed by, or challenged before, the High Court. The Full Bench which heard that case overruled the contention and what the learned Chief Justice and Mr. Justice Shah have said with respect to the point would prove helpful in meeting the preliminary point taken by the Advocate-General before me. In paras 2, 3 and 4 in his judgment the learned Chief Justice said: "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 Ahamedabad. It is clear, and Mr. Purushottam 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 clear, and Mr. Purushottam 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. Purushottam contends that whatever might have been the position prior to 26th January 1950, and whatever might have been the jurisdiction of this 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 look to the provisions of Art. 226. Before I 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 fall under S.45, Specific Relief Act, but the territorial jurisdiction was similarly restricted. The Court had also the jurisdiction to issue writs in the nature of habeas corpus under S. 491 Criminal P.C., and as far as that jurisdiction was concerned, the extent of that jurisdiction was the whole Province or State of Bombay. Now with this background, it is necessary to turn to the provisions of Art.226. The Court had also the jurisdiction to issue writs in the nature of habeas corpus under S. 491 Criminal P.C., and as far as that jurisdiction was concerned, the extent of that jurisdiction was the whole Province or State of Bombay. Now with this background, it is necessary to turn to the provisions of Art.226. In the first place, that Article confers upon this Court a very vast territorial jurisdiction, in respect of writs which it used to issue before and the territoriality of which was restricted to the ordinary original civil jurisdiction of the High Court. Now its jurisdiction has been extended to the whole State of Bombay. Further, its jurisdiction is not merely confined to the writs which it issued in the past, but power has been conferred upon it to issue directions, orders or writs for the enforcement of any of the rights conferred by Part III which deals with fundamental rights. It is not possible to read 'directions, orders of writs' as being ejusdem generis with what follows, because these "directions, orders or writs" refer to a larger category in which category is included writs in the nature of habeas corpus, mandamus, quo warranto and certiorari. The Article further confers upon this Court the power to issue not only writs in the nature of various categories specified in that Article, but those writs themselves, and further the Article goes on to state that these writs or orders can be issued not only for the enforcement of fundamental rights but for any other purpose. It is clear to my mind that "any other purpose" was embodied in this Article in order to remove any doubt that the High Court's jurisdiction to issue these writs was confined merely to the enforcement of fundamental rights because the High Court could issue a writ otherwise than for the enforcement of fundamental rights and that power of the High Court is saved and safeguarded by providing in Art.226 that the writs can be issued not only for the purposes of enforcement of fundamental rights but also for any other purpose. It is perhaps interesting and also instructive to compare the power of the Supreme Court in this respect with the powers conferred upon the High Court. It is perhaps interesting and also instructive to compare the power of the Supreme Court in this respect with the powers conferred upon the High Court. The Supreme Court being a new Court just set up under our Constitution, special powers had to be conferred upon that court, and therefore Art.32(2) confers upon the Supreme Court the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition quo warranto and certiorari for the enforcement of any of the rights conferred by this part. Therefore, whereas the jurisdiction of the Supreme Court is restricted to the issuing of writs and orders only for the purpose of enforcement of fundamental rights, the jurisdiction of the High Court is much wider and, as I said before, these orders and writs can be issued for other purposes which purposes were availed of by the High Court prior to the enactment of the Constitution. Now, the Advocate-General has contended that so construed the jurisdiction of the High Court would be very extensive and may be exercised in a manner which may seriously interfere with the administration of the State. To have jurisdiction is one thing; to exercise jurisdiction is another and I have not the slightest doubt that as in the past when prerogative writs were issued by this Court with the utmost care and caution, in future also, notwithstanding the conferment of extensive jurisdiction upon this Court, the power of this Court will not be lightly exercised. On the other hand, I see no reason why if in an appropriate case the fundamental rights of a citizen are violated or affected, the Court should be reluctant to exercise the jurisdiction which is conferred upon it. Undoubtedly the Court will of its own motion put limitations upon its own powers. It has been suggested by the Advocate General - and I agree with him - that the Court will not exercise its power under Art. 226 in a matter which it cannot deal with judicially or would it take notice of anything which it cannot take notice of judicially, nor would it interfere with the action of an executive officer unless it is satisfied that that executive officer is under an obligation to do something or to forbear from doing something. Therefore, if we have the jurisdiction as indeed we have, under Art. 226 to issue an order against even an executive officer who has issued an administrate order, in order to safeguard the fundamental rights of the citizen, the next question that we have to consider is whether on the facts of this case any fundamental right of the citizen has been violated or is threatened to be violated." Shah, J. begins the discussion of the question on page 370 of the report and it is carried on to the next page also. I shall quote only what is absolutely necessary here and that reads as follows: "The application as originally filed claimed a writ of certiorari and it was on that footing that rule was granted by this Court on 8th February 1950. It was, however, realised early in the course of the argument that a writ of certiorari could not be obtained except for the purpose of calling for the record of a proceeding which was either judicial or quasi-judicial in character and for correcting an error of jurisdiction in that proceeding. Mr. Purushottam therefore, at the commencement of his case requested us to convert his application into one for a writ under Art.226 of the Constitution. Mr. Purushottam contended that he is entitled to ask for a writ other than one of the high prerogative writs which this Court was entitled before 26th January 1950, to issue viz., writs of habeas corpus, writs of mandamus, writs of prohibition, writs of quo warranto and writs of certiorari. We have permitted Mr. Purushottam to make that application without a formal amendment. Now it is true that under the terms of Art. 226 of the Constitution of India, it is open to this Court to issue to any person or authority including in appropriate cases the Government, throughout the territory in relation to which the High Court exercises jurisdiction, writs or orders including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the purpose of enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. Even though prior to 26th January 1950 this Court's jurisdiction to issue high prerogative writs was a limited jurisdiction and was confined to certain specified writs, I agree with my Lord the Chief Justice that the jurisdiction of this Court is now not confined to the issue of those writs only or to writs in the nature of those writs but extends to the issue of other writs which it may be necessary to issue for the purpose of enforcement of the rights conferred by Part III or for other purposes. This Court is constituted, under the provisions of Art. 226, a custodian of the fundamental rights which have been guaranteed to the citizens of the State, and for the purpose of protecting those rights and for enforcement of the obligations arising therefrom, it is open to this Court to issue writs, though they may not be writs which have been recognised heretofore". 6. In the face of the reasoning and conclusion in the two cases cited above the arguments raised by Mr. Nambiar that, the provision in the Abkari Rules conferring on the Board of Revenue absolute direction to approve or not to approve a selected site is void, has to be considered on its merits. No doubt a writ of certiorari may not lie, but it will be open to the Court as suggested in the decisions above quoted to issue necessary directions or orders or other writs and thus afford relief to the petitioner if the point raised can be held to be good in law. 7. The second preliminary point was that the jural relationship between the petitioner on the one hand and the State on the other was merely contractual and that no application for a writ would therefore lie. The authority cited in that behalf namely pages 561-563 of Volume I of A.S. Choudry's High Prerogative Writs itself shows that judicial opinion is not agreed on that point. It will not in my opinion therefore be safe to rest a decision solely on it. Nor do I feel inclined to dispose of this petition on the narrow ground that the petitioner if aggrieved has other remedies. It will not in my opinion therefore be safe to rest a decision solely on it. Nor do I feel inclined to dispose of this petition on the narrow ground that the petitioner if aggrieved has other remedies. No doubt that is a consideration which the Court should keep in mind in seeking to exercise its jurisdiction under Art. 226, but the decision of the Supreme Court cited earlier, namely AIR 1950 SC 163 shows that the availability of other remedies creates on legal bar to the Court exercising the jurisdiction under Art.226. To turn to the points raised by the petitioner's learned Counsel it must first be considered whether the provision conferring authority on the Revenue Board to refuse to approve a site selected by a licensee is void. The Publication of the rules on pp. 435 to 444 of Part I of the Travancore-Cochin Govt. Gazette dated 2nd May 1950 is made under Government's rule making powers and those rules have therefore statutory force unless Art.13(2) renders them void. It was contended that such absolute power conferred on an executive body is an unreasonable restriction imposed on the fundamental rights of the citizen to acquire, hold and dispose of property and to carry on any trade or business as enacted in Art.19 Cl. (1) sub-cls. (f) and (g). Cl.(5) of Art. 19 so far as relevant here states: "Nothing in sub-clauses (d), (e) and (f) of C1.1 shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or " and the relevant portion of Cl. (6) reads: "Nothing in sub-cl. (g) of Cl. (1) shall affect the operation of any existing law in so far as it imposes, prevent the State from making any law imposing, in the interests of the general public reasonable restrictions on the exercise of the right conferred by the said sub-clause, and " Mr. Nambiar contended that the restriction enacted should not only be reasonable but the law enabling the restriction must also contain the mode of its imposition. Sub-cls. 5 and 6 inter alia authorises the State to impose reasonable restrictions on the exercise of the fundamental rights mentioned in sub-cls. (d) to (g) of Cl. Nambiar contended that the restriction enacted should not only be reasonable but the law enabling the restriction must also contain the mode of its imposition. Sub-cls. 5 and 6 inter alia authorises the State to impose reasonable restrictions on the exercise of the fundamental rights mentioned in sub-cls. (d) to (g) of Cl. (1). To quote Chagla, C.J., from the judgment in A.I.R. 1950 Born. 363 "Interests of general public" embraces public security, public order and public morality, and therefore, much wider power was given to the Legislature under sub. cl. (5) to restrict the right given under the Constitution under Art. 19(1) sub¬cls. (d) and (e)." (That case dealt with fundamental rights mentioned in sub-cls. (d) and (f) and hence Cl. (5) alone was relevant there). In testing whether the restriction imposed namely, an unfettered discretion on the statutory body constituting the Administrative Head of the Excise Department to approve or not to approve a selected site it cannot be forgotten that the property concerned is the property in an Excise license and the trade or business is trade or business under that license. To me it does not appear that much persuation or argument is needed to hold that the interests of general public demand that there must be a controlling voice to decide where a liquor shop shall be located. It will be an intolerable situation to leave it to a licensee to have the final word on the matter of the selection of a site even though the scope for abuse is limited by the provisions in C1.1 of the Abkari rule quoted earlier. It may not be possible for a rule to prescribe all the considerations that should be taken into account in fixing the site for a liquor shop. That the authority concerned may abuse the power conferred or that the withholding of approval may cause hardship in individual cases is not the criterion to decide whether the restriction imposed by the clause is reasonable or not. In Dr. Khare's case (AIR 1950 SC 211) the Chief Justice of India observed at pp. 213-214 of the report thus: "The question which the Court has to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. In Dr. Khare's case (AIR 1950 SC 211) the Chief Justice of India observed at pp. 213-214 of the report thus: "The question which the Court has to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safeguards against the abuse of the power given to the executive authority to administer the law is not relevant for the true interpretation of the clause." (meaning Art.19 C1.5). In the next paragraph of his judgment His Lordship the Chief Justice said: "The next question is whether the impugned Act contains reasonable restrictions on the exercise of the right given under Art. 19(1)(d) or (e). It was argued on behalf of the petitioner that under S.4 (East Punjab Public Safety Act) the power to make the order of externment was given to the Provisional Government, or the District Magistrate, whose satisfaction was final. That decision was not open to review by the Court. On that ground it was contended that there was an unreasonable restriction on the exercise of the citizen's right. In my opinion, this argument is unsound. This is not legislative delegation. The desirability of passing an individual order of externment against a citizen has to be left to an officer. In the Act such a provision cannot be made. The satisfaction of the officer thus does not impose an unreasonable restriction on the exercise of the citizen's right " If I understood Mr. Nambiar, the learned Counsel for the petitioner aright no argument that is not met by these quotations was raised during his argument under this head that the restriction was an unreasonable restriction. It was not even suggested that the restriction was not in the interests of the general public. Much to the same effect as what is contained in the above quotation from the Chief Justice of India's Judgment in Dr. Khare's case is to be found in the minority judgment of Shah, J. in AIR 1950 Born. 363. At page 372 the learned judge observed thus: "But the reasonableness is to be the reasonableness of the restriction and not of the manner in which it is imposed. Khare's case is to be found in the minority judgment of Shah, J. in AIR 1950 Born. 363. At page 372 the learned judge observed thus: "But the reasonableness is to be the reasonableness of the restriction and not of the manner in which it is imposed. If the restriction which is contemplated to be imposed is perse reasonable, it is immaterial that the Legislature might have provided for more adequate safeguards against the possibility of misuse of the powers conferred, that what it has done. In my judgment the scheme of Art. 19 is to provide a balance between the security of the State and the interest of the general public on the one hand, and the fundamental rights guaranteed to the citizens on the other. That Article provides for the enunciation of the fundamental rights which would normally be exercised by the citizens but which in the larger interest of the State and the general public may be curtailed or restricted. If the court is satisfied that the restriction is imposed in the interest of the general public and the restriction is not unreasonable, the Court has no jurisdiction to enquire whether the manner in which the restriction is likely to be imposed by the Officer charged with the duty of enforcing it may possibly act unreasonably. The possibility of an abuse of a provision enacted in the interest of the security of the State or in the interests of the general public cannot be a ground for holding the provision as void. The remedy lies with the Legislature to remove the lacuna if any which permits that abuse. It is not in my judgment within the province of the Court to examine a statute and to declare it void on the ground of possibility of abuse of authority vested in a State or a public servant, which might have the effect of curtailing the fundamental right of an individual. As to what safeguards should be incorporated in a statute so as to prevent a possibility of an abuse is a matter within the exclusive competence of the Legislature and the Court is not entitled to declare a statute void merely because it has failed, for reasons of which the Legislature is the best and the only judge to make provisions which it might have made but has not made. What Mr. What Mr. Purushottam asks us by reference to several hypothetical cases to consider is that the Legislature could not have intended to enable executive authorities after the Constitution came into operation to drive away a person from his hearth and home without any safeguards being imposed against the arbitrary or improper exercise of these restrictions. I am afraid it is not open to this Court (apart from an allegation of mala fides) to enter upon the question whether the enforcement or the imposition of restrictions is reasonable or otherwise. Nor is it open to this Court to go into the question whether the law which provides for the imposition of the restrictions is a reasonable one. What the Court has to consider is whether, when the Legislature provides for restrictions on the exercise of the fundamental rights, the restrictions are reasonable having regard to the interests of the general public." 8. No doubt the above is the minority view. In a sense it answers Mr. Nambiar's second point under this head of the argument that the law to be valid must provide as to how the restriction should be imposed or a provision to be heard before the executive authority exercises its power. Even the judgments of the learned judges who were in the majority would show that this requirement is seldom insisted upon except when personal freedom is touched. The latter part of para 9 and 10 of the judgment of Chagla, C.J. at page 368 and the concluding paragraph of the judgment of Bavdekar, J. would bear this out. The part of the Abkari rule sought to be impugned here is not open to this vice either. When the selection is by the licensee and the approval or disapproval by the Revenue Board is with reference to that selection the process necessarily involves a consideration of the licensee's view point. 9. In these circumstances, regard being had to the character of the property or the nature of the trade or business I cannot hold that the power conferred on the Board is an unreasonable restriction on the exercise of any fundamental right and hence void. 9. In these circumstances, regard being had to the character of the property or the nature of the trade or business I cannot hold that the power conferred on the Board is an unreasonable restriction on the exercise of any fundamental right and hence void. If the provision is not void it is not known how a party who entered into the contract with open eyes can be heard to complain that he cannot be bound by the order of the Revenue Board asking him to shift the shop. By his participation at the sale and the subsequent conduct in executing the kychit he has agreed to be bound by the rules which are of statutory validity. 10. The second main head of the argument remains to be considered. That point is, assuming that that part of Cl.(2) of the Abkari rule we are concerned here is good law whether the particular order is bad for any reason. In considering this point it has to be borne in mind that it is not competent for me to enter into the merits of the case and decide questions involved as if I am sitting in appeal over the Government order. Whether the selection of the site by the petitioner was without offending in any sense Cl. I of the rule is therefore beside the point. The question can only be whether the decision is intra vires the powers of the authorities concerned and whether it has been rendered in a manner not offending the rules of natural justice. As mentioned earlier the Government have only confirmed the Revenue Board's order to shift the shop. The complaint that the Revenue Board did not pass any order is without any foundation. The whole file was made available to me for perusal by the learned Advocate General and from that it can be seen that when the Advocate engaged by the petitioner appeared before the First member of the Board the Advocate for the licensee of toddy shop No. 6 was also present and that after hearing both he announced the decision that the petitioner should shift his shop from his present site immediately. That is clear from paragraph 7 of Ext. C., the petition the petitioner filed before the Hon'ble Minister for Excise. That is clear from paragraph 7 of Ext. C., the petition the petitioner filed before the Hon'ble Minister for Excise. The file shows that when the First Member of the Board returned to Trivandrum he made a record of this order and that accordingly instructions were issued to the Assistant Excise Commissioner to take steps to enforce the order. The complaint that the Board passed the order without hearing the petitioner is not even supported by an affidavit of the Advocate who appeared before the First Member and the Revenue Board's file belies it. The petitioner at first sent a petition Ext. I, two days after the period of his temporary license began to run setting out grounds why he should not be asked to shift. Even if the Board had not heard the petitioner's Advocate its order would nevertheless have been valid. In this context I would refer to two decisions one by the High Court of Madras and the other by a Division Bench of this Court in A.S. 815 of 1950. In the Madras case, Shanmuga Mudaliar, In re (1950) 2 MLJ 399 Rajamannar, C.J. said: "All that quasi-judicial Tribunals like the Board of Revenue have to do is to give sufficient opportunity to the persons who approach them for the exercise of their jurisdiction to state their case. Local Government Board v. Alridge (1915) A.C. 120. This opportunity has been given to the petitioner, because presumably he has stated all his grounds of objection to the order of the Revenue Divisional Officer in his revision petition. He is not entitled as of right to be heard and it cannot he said that the order of the Board passed without hearing him is contrary to the principles of natural justice. We must therefore refuse to issue a writ of certiorari to quash the order." Earlier the learned Chief Justice had said there is nothing in the Act (Stamp Act) or in the rules framed thereunder which enjoined on the Board the duty to give an oral hearing to a person who invokes their revisional jurisdiction. We must therefore refuse to issue a writ of certiorari to quash the order." Earlier the learned Chief Justice had said there is nothing in the Act (Stamp Act) or in the rules framed thereunder which enjoined on the Board the duty to give an oral hearing to a person who invokes their revisional jurisdiction. In A.S. 815 of 1950, of this Court the learned Chief Justice delivering the judgment of the Bench consisting of himself and Justice Subramonia Iyer said: "In the case of the Government, normally when an appeal is presented, whether it is by virtue of a right conferred by a Statute or by a rule of law, it may be disposed of by the Government on going through the grounds mentioned therein. There is no obligation imposed upon the Government by any Statute or rule to make a Minister or an Officer of State to sit in public and hear arguments before disposing of an appeal presented to the Government. It is common knowledge that such procedure is not followed nor need it be observed in the absence of a specific provision in any statute or rule which makes it incumbent upon the Government to adopt the method of administering justice which is expected to be followed by courts of law." In the case in hand the Board was functioning in a pure administrative capacity and not discharging any judicial or quasi-judicial functions. 11. Several grounds are set out in the present petition as grounds to invalidate the Government order. The first ground is that the Minister passed the order without calling for the file as enjoined by S.9 of the Revenue Board Act. S.9 relates to Government's powers of revision and even a Court moved to invoke its revisional jurisdiction can and very often does dismiss revision petitions without calling for the records. Here however the Minister after hearing the petitioner's Advocate called for a report from the Revenue Board and Ext. VIII is the report the Board made to Government about the petitioner's application to the Minister. I cannot therefore find any merit in the point. At the worst it is merely an irregularity and does not touch even the frinches of the question of jurisdiction. VIII is the report the Board made to Government about the petitioner's application to the Minister. I cannot therefore find any merit in the point. At the worst it is merely an irregularity and does not touch even the frinches of the question of jurisdiction. The second point taken in the present petition is that the Government passed its order under a misapprehension that the Revenue Board had passed an order to shift the shop. I have shown that that the Revenue Board had really passed an order. Even otherwise S. 9 referred to above authorises Government to pass any order it thinks fit on a file pending before or disposed of by the Board. The other points mentioned as grounds to challenge the validity of the order do not deserve any independent consideration nor do I think there is any substance in them. On the whole I cannot find any material on the records that the order is without jurisdiction or that it was passed without due regard to the rules of natural justice. The Revenue Board's order to shift the shop is one which it was competent for the Board to make and it was passed after the petitioner was duly heard. Government confirmed it after a review of all the available materials and reconsidered their own decision before dismissing the review petition filed before them by the petitioner. 12. I cannot in the circumstances find any merit in the petition and I dismiss it with costs. Advocate's fee Rs. 100/-. The enforcement of the order has been stayed by this Court and with the dismissal of the petition the stay order ceases to be in force. It is however expected Government will give the petitioner sufficient time and also afford him all facilities to find a new habitation for his shop. Petition dismissed.