Jeewanlal v. Government of Bhopal — 1952 DIGILAW 70 (MP)

ORDER : 1. The petitioners filed an application under Art. 226 of the Constitution for (a) issue of a writ of certiorari, to the Government of Bhopal to quash its order dated 18-4-1952, reinstating non-petitioner 3 and/or the order dated 26-6-1952 and a notification of the same date passed by it, superseding the Municipal Board, Sehore, (b) a writ of prohibition to prevent the Government of Bhopal non-petitioner 1 from taking steps to implement the said notification and the non-petitioners 1 to 3 from giving effect to it as also the order, (c) a writ of prohibition or mandamus directing non-petitioners not to prevent the petitioners from exercising their legal rights as Chairman and Member of the Board by holding meetings etc. including the legal right of selecting a candidate for the post of the Executive Officer from out of the applicants for it and (d) other ancillary orders. 2. In the same petition a prayer for an interim temporary injunction to restrain the non-petitioners 2 and 3 from taking charge from the petitioner 1 and an interim order as stated in Cls. (b) and (c) above, was made. A separate application for issue of such temporary injunction, as stated above, is also filed, and this order disposes of the interim petition. 3. The main petition running into about 50 paragraphs states a long history of the occurrences prior to the impugned notification and order. The gravamen of the whole petition lies in the condemnation of the order and notification dated 26-6-1952 said to have been passed, under S. 11 of the Act VI of 1916 (Described as Bhopal State Municipalities Act), on the ground that it is mala fide, illegal, ultra vires and against principles of natural justice, by which the fundamental and legal rights under the Municipal Act and the Constitution are infringed by the opposite parties (see para. 35) as no equal opportunity, under Art. 14 of the Constitution, was given to the applicants for the post in response to the advertisement of the Municipal Board and the Petitioners were deprived of their right to act in accordance with the said provision of the Constitution. 4. The non-petitioner 1 filed an affidavit that the notification has already been acted upon and the charge of the Municipal Board has been taken by the Collector-non-petitioner 2 and the non-petitioner 3 as ordered. 5. 4. The non-petitioner 1 filed an affidavit that the notification has already been acted upon and the charge of the Municipal Board has been taken by the Collector-non-petitioner 2 and the non-petitioner 3 as ordered. 5. The non-petitioners opposed the interim application on the ground that the main petition itself is not tenable in law and that the notification and the order sought to be impugned are perfectly legal and proper. 6. The interim petition has to be decided on the consideration of the tenability or otherwise of the main petition as, if the very basis of the interim petition is lost, then the ancillary petition falls to the ground. The basis of the right to file this petition is said to be that the fundamental right of the 47 applicants or candidates for the post of the Executive Officer, for an equal opportunity under Art. 14 of the Constitution, is infringed. Obviously, therefore, it is not infringement of the fundamental rights of the petitioners under Chap. III of the Constitution, but it is the infringement of such right of some others, not on record, on which the petition is founded. 7. A perusal of the long petition clearly indicates that the petitioners have hardly any concern with the fundamental right of the applicants for the post or any anxiety to preserve such right. At no place is found any averment or statement to indicate how the petitioners are affected by even the supposed infringement of rights of the said applicants. Even the names of these applicants are not stated in the petition and it is clear that it is the alleged infringement of their own legal rights, such rights alone under the Municipal Act that constitutes the basis on which the petition is filed. 8. The question, therefore, is whether such petition is tenable in law, under, Art. 228 of the Constitution. It is said that an application for writs, under Art. 226, is tenable not only for the enforcement of any rights under Chap. III of the Constitution but also for any other purpose i. e. for the enforcement of even any legal right. 9. It is said that an application for writs, under Art. 226, is tenable not only for the enforcement of any rights under Chap. III of the Constitution but also for any other purpose i. e. for the enforcement of even any legal right. 9. This very question, relating to the interpretation of this very clause or expression was before me in an earlier case as reported in Abdul Qadir v. Custodian of Evacuee Property, Bhopal State, AIR 1952 Bho 16 and I have held that the expression means a purpose ancillary to the enforcement of the rights under Chap. III of the Constitution and none else and further that no such petition for the enforcement of merely a legal right is tenable. I may also add that my learned brother Shri Tribeni Saran (Ex-Addl. Judicial Commissioner) has taken the same view which has been referred to in my decision ibid. 10. As against this a large number of decisions of the different High Courts have been cited before me viz. Kanhaiyalal Mulchand v. State of Madhya Pradesh, AIR 1951 Nag 47 (1), Laxmibai v. State of Madhya Pradesh, AIR 1951 Nag 94 (FB), Gopal Jairam v. State of Madhya Pradesh, AIR 1951 Nag 181, Rama Govind Singh v. Chief Commissioner Vindhya Pradesh, AIR 1951 Vindh Pra. 3, Raghunath Patnaik v. State Transport Authority, Orissa, AIR 1951 Orissa 81, In re Dr. John Matthai, AIR 1952 Trav.-C. 1, Carlsbad Mineral Water Mfg. Co. Ltd. v. H. M. Jagtiani, AIR 1952 Cal 315 , Mangal Sain v. State of Punjab, AIR 1952 Punj 58, Raj Krishan v. Chief Commissioner, Delhi, AIR 1952 Punj 176 and Wazir Chand v. State of Himachal Pradesh AIR 1952 Him Pr 35. 11. With all my respect for the learned Judges and in all humility I am constrained to say that a close perusal of the cases clearly shows that the learned Judges, who made observations supporting the view sought to be urged here that the expression "any other purpose" means and includes "enforcement of a legal right," do not seem to have indicated the reasons in support of their view expressed or for the above interpretation of the expression "any other purpose." In my order, in the above case ibid, in paras. 10 and 11 at p. 18, I have tried, to the best of my ability and after due consideration, to adhere to the rules of interpretation and I must confess that I could not get away from the force of the reasoning as found in the said paragraphs. During arguments in this Court I expressed that I was prepared to be dislodged from the position taken if I was satisfied that the opposite view was justified by some reasoning with reference to the rules of interpretation as has been stated in the above paragraphs. In no case cited before me was such an attempt made and in the circumstances, I am constrained to observe that I cannot persuade myself to depart from the view I have already taken. 12. The Supreme Court, in its decision in State of Orissa v. Madan Gopal Rungata, AIR 1952 SC 12 has, in para. 5, observed as follows : "The language of the Art. (226) shows that the issuing of writs or directions the Court is founded only on its decision that a right of the aggrieved party under part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Art. 226 have to be read in the context of what precedes the same. Therefore the existence of right is the foundation of the exercise of jurisdiction of the Court under this Article.'' 13. An attempt was made by the learned counsel for the petitioners to refer to the facts of the case and it was urged that the learned Judges were dealing in that case with the grant of a temporary injunction for the purpose of enabling the aggrieved parties to circumvent the provisions of S. 80, Civil P. C., while that was not so in the case on hand. The facts in each case are bound to be different but it is the principle or the rule laid down that has to be examined. The Supreme Court has obviously, in the above case, laid down a rule indicating the interpretation of the expression "any other purpose" in Art. 226 of the Constitution and in my opinion, I find from it full support to the view which I have taken in the case noted above. The Supreme Court has obviously, in the above case, laid down a rule indicating the interpretation of the expression "any other purpose" in Art. 226 of the Constitution and in my opinion, I find from it full support to the view which I have taken in the case noted above. That being so, in my opinion, the petition, which makes a grievance not against the infringement of any right under chapter in of the Constitution, but against infringement of a mere legal right said to have been obtained or acquired under a local statute, is not tenable under Art. 226 of the Constitution and no writs available under that Article can be issued. 14. Lengthy arguments, to seriously condemn the notification and the order dated 26-6-52, were addressed in this Court and it was also sought to be urged that in the absence of a temporary injunction, as prayed for, the petitioners would suffer an irreparable loss and substantial injury. In my opinion, however, it is not necessary to enter into the merits or demerits of the said notification and the order, and in fact to my mind, such an attempt would be beyond the scope of this Court's jurisdiction while considering the main petition itself and much more so in consideration of the interim application. The main petition itself being untenable, the ancillary petition, for a temporary injunction, falls through and cannot be allowed. 15. In this view, then, the application for temporary injunction, as sought is rejected with costs. Application rejected.