# JASBHAl MOTIBHAI DESAI v. ROSHAN KUMAR, HAJI BASHIR AHMED & ORS - **Citation:** [1976] 3 S.C.R. 58 - **Court:** Supreme Court of India - **Decided:** 1975-12-19 - **Case number:** Civil Appeal No. 2035 of 1971 - **Bench:** A. N. Ray, M. H. Beg, R. S. Sarkaria, P. N. Shinghal - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jasbhal-motibhai-desai-v-roshan-kumar-haji-bashir-ahmed-ors-6803 - **Pages:** 17 ## Headnote Constit11tio11 of India-Art. 226-Scope of the po-.ver of writ of "certiorari". Rufe of practicc-U.\·efulness of L"11glish decisions and when can be co11sidered. "Aggrie1 1ed pcrsons"-Tests for deciding. "Locus slandi"-Wbether a ri1·(t/ ill trade and an owner of an e.xi.Hing cine111a theatre is a1t "aggrieved person" within the meaning of s. SA· of the Bon1hay Ci11e111a Rules, 1954 e11titfi11r.: hi111 to invoke the certiorari jurisdiction "ex-dcbito iustitiae" of the Hi~h Co11rt for q1unhit1J.? the order granting a "no objection certificate" under rule 6 of the Bo111bay Cineina Rules, 1954. Danu111111 sine injuria-Principle of. Under tJ1e Bon1bay Cinema R11les, 1954, the District Magistrate, after inviting the objections under r. 4 from the public and also the opinions of the District Superintendent of Police, Chairman Nagar Panchayat and the Executive Engineer (Roads & Buildings), and <1ftcr considering them. may grant under rule 5 a "no objection certificate" to the appellant'> for the location of a cinema theatre under his jurisdiction, or in case of his not granting the certificate, he must refer under s. 6 of the Rules, the matter to the State Government with his reasons, therefor. In respect of the application of the respondents, not being satisfie for the location of a cinema theatre under his jurisdiction, or in case of his not granting the certificate, he must refer under s. 6 of the Rules, the matter to the State Government with his reasons, therefor. In respect of the application of the respondents, not being satisfie of this vast country, in so far as they ith private rights of pt1.rticulnr individuals'.' [71 E-H, 72 A] J~ex v. Tauntou St. Mary (1815) 3 I\.1 & S 465. King v. Groon1 & ()thers Ex parle L1901] 2 K.B. 157. King v. Ricfunond Co11fin11i11g A11thority Ex parte Howitt [1921] 1 K.B. 157; R. Fhotnas Magistrates Court Ex Parte Green Ba1u11 11957) 55 LCR. 129, 135, 135-136 in Yardley"s Book of English Administrative Law 2nd Edition p. 228; Uex v. Manchester Ler:al Aid (701111nittet' I 1952] 2 QBD 413; Attomey General of Gambia v. N's lie [1961] A.C. 617; Maurice v. Lontlori ('01111ty Council [1964] QB 362, 378; Regina v. Liverpool Corporation Ex J'arte L1\·erport Taxi Fleet Operator's Association [1972] (2) QB 299; Regina v. Padcli11gro11 Val11atio11 Officer Ex parte Peachy Property Corporation Ltd. [19661 1 QH 860; Bar Council uf Mahara!.}1tra v. M. V. Dabliotkar [1976] 1 SCR p. 306 Rex v. Butt I Another Ex parte Brooke vol. xxxviii (1921-22) Times Law Reports 537; Regina v. Brighton Borough Justices Ex parte Jarria ( 1954) 1 Weekly Law Reports 203; Burton & others v. Minister of llousi11g & LOcal Govenu11e11t [1961] 1 QBD 278; In re Side hottom (1880) 14 ChD. 458 @ 465; Ex parte Scott [1916] I KB 7; King v. Middlesex Justices (1832) 37 FR 594-(1832) 3 B & AD 938; R. Bradford 011 Avan Urba11 Dt. Coullcil t.:x varte Balton f19641 2 All ER 492; Gre,r.,1orrey v. Co111dcn London Borough Council ( 1966) WLR 899; R. v. London O.B. Ex parfe We.~11 lvlinstcr Corporatio11 11951] 2 K.B. 508; ReRi11a v. Cardiff Justict's Ex parte Cardiff Corporation l 1962] 2 Q.B. 436; State of Orissa v. Mada11 Gopal Bangta 11952] SCR 28; Calc11110 Gas co. v. The ,\'fate of West Bengal r19621 Supp. 3 SCR 1; J~a111es!11rar Sutlioo v. Me111ber. Board of Revenue Orissa [19671 2 SCR 172; State of Orissa v. Rajasliah Cl1andar11all ATR 1972 S.C. 2114; Dr. Satyanuwaya11a Sinh<1, v. M/s. Lal & Co. [1974] 1 SCR 615: c:ofan1en v. 1l'1ilfer [1939] 307 Q.B. 433; Chap1na11 v. Slieriden Wl'onli1tg Coal Co. 338 U.S. 621; American Jurisprudence Vol. 2 Ld. at 575 p. 334 Joint Anti Fascist Refugt'e Conuniltee v. Melartli 341 U.S. 123; ·united States Cane Sugar l?efi11ers' Asson. v. McNutt 138 F 2nd 116: 158 ALR 849; United States v. Storer Broadcas!i11g Co. 351 U.S. 192 and Kansa.\ City Power & Light Co. v. A1cKay 350 U.S. 884, considered. (8) The Bon1bay Cinematographic Act and the Rules are not designed to set norms of n1oral or professional conduct for the community at large or even a section thereof and hence, the expression "person aggrieved" must receive a stric~ construction. The Act and the Rules do not confer any substantive justiciable right on a rival in cinema trade, apart from the option in common with the rest of the public to lodge an objection in response to the notice published under Rule 4. Section SA of the Act confers a right of appeal to the State Gov~rnment, only on any person aggrieved by an order of a licensing authority refusing to grant a licence or revoking or suspending any licence under s. 8. [72 B, C-E] • • • JASBHAI DESAI V. ROSHAN KUMAR 61 Section 8B of the Act provides that the State Government n1ay either of its own motion or upon an application made by "an aggrieved person" call for and examine the record of any order made by a licensing authority under this Act and passes such order thereon a~ it thinks just and proper. [72 F-01 (9) Such harm or loss in business arising out of setting up of a rival cinema house adversely affecting the monopolistic, commercial interest of the applicant is not \Vrongful in the eye of law because, it does not result in injury to a legal right or a lcgafly protected interest the business competition causing it being a lawful activity. Juridically harm of this type is called "daninunl sine injuria" the term injuria being here used in its true sense of an act contrary to la\v. The reason \vhy the law suffers a person knowingly to inflict harm of this description on another. without holding him accountable for it is that such harm done to an illdividual is a gain to. society at large. [73 E-F] Salmondon Jurisprudence referred to. (10) Ia the instant case, none of the appellant's rights or interests recognised by the general la\v has been infringed as a result of the grant of 'No objection certificate'. He has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it v.rrongfully affect his title to something. He has not been subjected to a legal wrong. He· has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a "person aggrieved" within the meaning of s. SA or 8B of the Bombay Cinema Rules, 1954 and has no locus sta1ufi to challenge the grant of the 'No objection certificate'. [73 C, F--G] /lice & Flour Mills case [1970] 3 S.C.R. 846 applied. (11) Assuming that the appellant is a stranger, and not a busybody, then also there are no exceptional circumstances in the present case which would justify the issue of a writ of certiorari at his: instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in business which is so essential to raise commercial morality; it will tend to perpetuate the appellant's monopoly of cinema business in the tov,.·n; and above all, it will seriously injure the fundamental rights of respondents 1 and 2 which they have under Article 19(1)(g) of the Constitution to carry on trade or business subject to "reasonable restrictions imposed by law". [74 C-D] (12) It is true that in the ultimate analysis, the jurisdiction under Art. 226 is discretionary. But in a country like\ India where writ petitions are instituted in the High Courts by the thousand many of them frivolous, a strict ascertainn1ent, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction must be insisted upon. The Qroad guidelines indicated coupled with other v.1ell-established, self-devised rules of practice, such as the availability of an alernative remedy, the conduct of the petitioner etc., can go a long way to help the Courts in weeding out a large ~number of writ petitions at the initial stage \:Vith consequent saving of public· titne and money. While a Procrustean approach should be avoided, as a rule, the court should not interfere at the instance of a "stranger" unless there are exceptional cicumstances involving a grave miscarriage of justice having an adverse impact on public interests. [73H, 74 A-Bl CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2035 of 1971. ~" Appeal by Special Leave from the Judgment and Order dated the 11th November, 1971 of the Gujarat High Court in S.F.A. No. 1584 of 1970. V. N. Tarkunde and Mrs. S. Gopalakrishnan for the Appellant. A B c D E F G Vimal Dave and Miss Kai/ash Mehta for Respondents 1-2. H G. A. Shah and M. N. Shroff a11d Girish Chandra for Respondent Nos. 3-4. 62 SUPREME COURT REPORTS [1976] 3 S.C.R. A The Judgment of the Court was delivered by c D E F G H SARKARIA, J.-Whether the proprietor of a cinema theatre holding a licence for exhibiting cinematograph films, is entitled to invoke t1J.e certiorari jurisdiction ex debito justitiae to get a 'No-Objection Certificate', granted under Rule 6 of the Bombay Cinema Rules, 1954 (for short, the Rules) by the District Magistrate in favour of a rival in the trade, brought up and quashed on the ground that it suffers from a defect of jurisdiction, is the principal question that falls to be determined in this appeal by special leave. The circumstances giving rise to this appeal are as follows : Respondents 1 and 2 arc owners of a.site, bearing Survey No. 98 in the town of Mehmadabad. They made an application under Rule 3 of the Rules to the District Magistrate, Kaira, for the grant of a · Certificate that there was no objection to the location of a cinema theatre at this site. The District Magistrate then notified in the prescribed Form, the substance of the application by publication in newspapers, inviting objections to the grant of a No-Objection Certificate. In response thereto, several persons lodged objections, but the appellants, who are the proprietors of a cinema house, situated on Station Road, Mehmadabad, were not among those objectors. Some of the objections were that a Muslim graveyard, a Durgah, a compost depot, a school and public latrines were situated in the vicinity of the proposed site. The District Magistrate (Res. 3 herein) invited the opinions of the Chairman of Nagar Panchayat, Executive Engineer Roads and Buildings, and the District Superintendent of Police. These three authorities opined that they had no objection to the grant of the Certificate applied for. The District Magistrate visited the site on 27-7-1970 Thereafter he submitted a report to the State Government (Res. 4) that the proposed site was not fit for the location of a cinema house. He recommended that the 'No-Objection Certificate' should be refused. The State Government did not agree with the recommendation of the District Magistrate and directed the latter to grant the Certificate. Accordingly, the District Magistrate granted the 'No-Objection Certificate' on 27-11-1970 to Res. 1 and 2. On 16-12-1970, the appellants filed a writ petition in the High Court under Articles 226/227 of the Constitution praying for the issuance of a writ of certiorari, mandamus, or any other appropriate writ or order directing the Respondents to treat the No-Objection Certificate granted to Respondents 1 and 2 as illegal, void and ineffectual. They further asked for an injunction restraining Respondents I and 2 from utilising the certificate for the purpose of building a cinema theatre. The main grounds of challenge were : that the impugned Certificate had been issued by the District Magistrate, not in the exercise of his own discretion with due regard to the principles indicated in the Bombay Cincmatograph Act, 1918 (for short, the Act) and the Rules, but mechanically at the dictates of the State Government; that Rules 5 and 6, according to an earlier judgment of the High Court being ,_ • t r J ASBHAI DESAI v. ROSHAN KUMAR (Sarkaria, J.) 63 '. • ultra vires and void, the Government had no power to grant or refuse the No-Objection Certificate; that such power belonged to the District Magistrate who was the Licensing Authority, and had to be exercised by him objectively, in a quasi-judicial manner in accordance with the statutory principles; since it was not so exercised, the grant of the Certificate in question suffers from lack of jurisdiction. In the affidavit filed in reply, by the District Magistrate (on behalf of Respondents 3 and 4) a preliminary objection was taken that the appellants had no locus standi to file the writ petition because their rights were not in any manner affected by the grant of the 'No-objection Certiticate'. It was stated that the deponent had reported the case and submitted the records to the State Government under Rule 5, recommending that on account of the location of a graveyard, a church, a temple, a mosque and a school near the proposed site, the no-objection certificate be refused. It was admitted that on receipt of the order of the State Government he granted the No-Objection Certificate to Respondents I and 2 in compliance with the Government's directive. The High Court, purporting to rely on this Court's decision in Stare nf Gujarat v. Krishna Cinema(') and an earlier decision of its own in Kishore Chander Ratilal v. State of Gujarat( 2 ), held that Ruic 5(2) in its entirety, and the words "the previous permission of the Government obtained under Rule 5" in Rule 6 being ultra vires and invalid, have to be ignored as non est, with the result that the District Magistrate had to come to his own conclusion on relevant considerations and objective norms whether a No Objection Certificate should be granted or refused; that under the Act the District Magistrate-and not the Government-is the Licensing Authority, and he was bonnd to exercise this power, which is an integral part of the process of licensing, in a quasi judicial manner, that since the District Magistrate exercised this power not on his own in accordance with objective principles, but solely at the dictates of the Government, his act in granting the No-Objection Certificate suffers from a patent lack of jurisdiction. The High Court, however, dismissed the writ petition on the ground that no right vested in the appellant had been infringed, or prejudiced or adversely affected as a direct consequence of the order impugned by him, and as such, he was not an aggrieved person' having a locus standi in the matt~r. - Mr. Tarkunde appearing for the appellant, assails the finding of th~ High c.ourt !r: regard to the locus standi of the appellant to maintam the wnt pelilion. The burden of his arguments is that apart from a right in common with the general public to object to the grant before the District Magistrate, the appellant was a rival in the same trade and, as such, had a particular interest to sec that permission was not granted to another, in contravention of law, to start the same business· cons~quently, the illegal grant ?f ~he No-Objection Certificate had pr~judi cially affected the commercial interest of the appellant who stood in the ---- --~- -- (!) [1971] 2 S.C.R. 110. (2) Special Civil Application No. 912 of 1970, decided by Gujarat High Court on 25/27th Nov. 1970. A B c D E F G 11 A B c D E F G H 64 SUPREME COURT REPORTS [!976] 3 S.C.R. category of an "aggrieved person' entitled to a writ of certiorari ex debito justitiae. It is submitted that so far as certiorari is concerned, the concept of 'aggrieved person' is very wide and is not confined to a person who is grieved by art invasion of a legal right vested in him. Anyone-says Mr. Tarktlnde-who is personally interested and genuinely grieved by an act of usurpation of jurisdiction or lack of jurisdiction on the part of an administrative tribunal or body, would fall within the category of an ·aggrieved person', even if such usurpation or lack of jurisdiction bad not resulted in infringement of a illegal rigbt or legal interest vested in him; nor would such a person be denied locus standi for the purpose of certiorari merely because he had not lodged any objection or joined the proceedings before the tribunal (District Magistrate, in the present case). In these premises, it is maintained, the High Court was not justified in denying the remedy of certiorari to the appellant. Counsel has cited a number of decisions, mostly of the English Courts, in support of his contentions. · Article 226 of the Constitution empowers the High Court to issue to any person or authority. including the Government, within its territorial jurisdiction, directions, orders or writs, including writs in the nature of habeas corpus, n1a1ulanzus, prohibition, quo warranto and certiorari for the enforcement of fundamental rights and for any other purpose. As explained by this Court in Dwarka Nath v. Income-tax Officer, Kanpur(') the founding fathers of the Constitution have designedly couched the Article in comprehensive phraseology to enable the High Court to reach injustice wherever it is found. In a sense, the scope and nature of the power conferred by the Article is wider than that exercised by the writ courts in England. However, the adoption of the nomenclature of English writs, with the prefix "nature of" superaddcd, indicates that the general principles grown over the years in the Euglish Courts, can, shorn of unnecessary technical procedural restrictions, and adapted to the special conditions of this vast country, in so far as they do not conflict with any provision of the Constitution, or the law declared by this Court, be usefully considered in directing the exercise of this discretionary jurisdiction in accordance with well-recognised rules of practice. According to most Engiish decisions, in order to have the /orns stwuh to invoke certiorari j11risdiction, the petitioner should be an "aggrieved person" and, in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, hut if he does not fulfil that character, and is a "stranger", the Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances. This takes us to the further question : Who is an "aggrieved person" and what arc the qualifications requisite for such a status? The expression "aggrieved person'' denotes an e1astic, and, to an extent, an elusive concept. It cannot be confined within I.lie bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad, tentative manner. Its scope and meaning (I) [1965] l S.C.R. 536. • r r • • JASBHAI DESAI v. ROSHAN KUMAR (Sarkaria, !.) 65 depends on diverse, variable factors such as the content and intent o[ the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. Euglish Courts have sometimes put a restricted and sometimes a wide construction on the· expression "aggrieved person". However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary loc11s standi or 'standing' to invoke. certiorari jurisdiction . We will first take up that line of cases in which an "aggrieved person" has been held to be one who has a more particular or peculiar interest of his own beyond that of the general public, in seeing that the law is properly administered. The leading case in this line in Queen v. Justices of Surrey(') decided as far back as 1870. There. on the application by the highway board the Justices made certificates that certain portions of three roads were unnecessary. As a result. it was ordered that the roads should cease to be repaired by the parishes. E, an inhabitant of one of the parishes, and living in the neighbourhood of the roads, obtained a rule for a certiorari to bring up the orders and certificates for the purpose of quashing them on the ground that they were void by reason of the notices not having been affixed at the places required by law. On the point of locus standi (following an earlier decision Hex v. Taunton St. Mary( 2 ), the Court held that though a certiorari is not a writ of course, yet as the applicant had by reason of his local situation a peculiar grievance of his own, and was not merely applying as one of the public, he was entitled to the writ ex debito justitiae. It is to be noted that in this case E was living in the neighbourhood of the roads were to be abandoned as a result of the certificates issued by the Justices. He would have suffered special inconvenience by the abandonment. Thus E bad shown a particular grievance of his own beyond some inconveniences suffered by the general public. He had a right to object to the grant of the Certificate. Non-publication of the notice at all the places in accordance with law, had seriously prejudiced him in the exercise of that legal right. The ratio of the decision in Queen v. Justices of Surrey (supra) was followed in King v. Groom and ors. Ex Parte( 3). There, the parties were rivals in the liquor trade. The applicants (brewers) had persistently objected to the jurisdiction of the justices to grant the license to one J. K. White in a particular month. It was held that the applicants had a sufficient interest in the matter to enable them to invoke certiorari jurisdiction. A distinguishing feature of this case was that unlike the appellants in the present case who did not, despite public notice, raise any objection before the District Magistrate to the grant of the No-Objection Certificate, the brewers were persistently raising objections in proceedings before the Justices at every stage. The law gave them a right to (l) [1870] 5 B. 466. (2) [1815] l M & S 465. (3) [1901] 2 K. B. 157. A B c D E F G H A B c 0 E F G H 66 SUPREME COURT REPORTS [ 1976] 3 S.C.R. object and to see that the licensing was done in accordance with law. They were seriously prejudiced in the exercise of that right by the act of usurpation of the jurisdiction on the part of the Justices. The rule in Groom's case was followed in The King v. Richmond Confirming Authority, Ex parte Howitt('). There, also, the applicant for a certiorari was a rival in the liquor trade. It is significant that in coming to the conclusion that the applicant was a 'person aggrieved'. Earl of Reading C.J. laid stress on the fact that he had appeared and objected before the J usticcs and joined issue with them, though unsuccessfully, "in the sense that they said they had jurisdiction when he said they had not". In R. Toames Magistrate's Court Ex parte Greenbaum(') there. were two traders in Goulston St., Stepney. One of them was Gritzman who held a license to trade on pitch No. 4 for 5 days in the week an pitch No. 8 for the other two days. The other was Greenbaum, who held a licence to sell on Pitch No. 8 for two days of the week, and pitch No. 10 for the other days of the week. A much better pitch, pitch No. 2, in Gulston St. became vacant. Thereupon, both Gritzman and Greenbaum applied for the grant of a licence, each wanted to give up his own existing licence and get a new licence for pitch No. 2. The Borough Council considered and decided in favour of Greenbaum and refused Gritzman who was left with his pitches 4 and 8. Gritzman appealed to the magistrate. He could not appeal against the grant of a licence to Greenbaum, but only against the refusal to grant a licence to himself. Before the magistrate, the Borough Council opposed him. The magistrate held that the Council were wrong to refuse the licence of pitch No. 2 to Gritzman. The Council thereupon made out a licence for Gritzman for pitch No. 2 and wrote to Greenbaum saying that his licence had been wrongly issued. Greenbaum made an application for certiorari to court . The court held that the magistrate had no jurisdiction to hear the appeal. An objection was taken that Greenbaum had no locus standi. Rejecting the contention, Lord Denning observed : "I should have thought that in this case Greenbaum was certainly a person aggrieved, and not a stranger. He was affected by the magistrate's orders because the magistrate ordered another person to be put on his pitch. ft ;, a proper case for the intervention of the court by means of certiorari." It is to be noted that the Council had duly allotted pitch No. 2 to Greenbaum in the exercise of their administrative power. The Magistrate's order pursuant to which the Council cancelled the allotment and re-allotted that pitch to Gritzman, was without jurisdiction. By this illegal cancellation and reallotment Greenbaum's interest to trade on pitch No. 2, which had been duly licensed out to him was directly and prejudicially affected by the impugned action. (I) [1921] I K.B. 248. . (2) [1957] 55 L.G.R. 129-135, 135-136 e'tracted in Yardley's book of Engli