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Dayabhai Poonambhai Patel Vs. the Regional Transport Authority and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1951CriLJ1305
AppellantDayabhai Poonambhai Patel
RespondentThe Regional Transport Authority and anr.
Excerpt:
- - 3. the motor vehicles act (iv (4) of 1939) was adopted by the madhya bharat & came into force within the territories of the union on or about 1-10-1949. it is complained that the applications made by the present petitioner for grant of permits to ply motor buses on hire on some of the routes covered by the agreement of 30-11-1947 were not dealt with by the regional transport officer in accordance with the law. it is complained that they were allowed to remain pending for an inordinately long period & in doing so the state authority acted improperly, maliciously & illegally. whether these powers can be exercised by madhya bharat high court upon an application or original motion made by the party in a case like the present? expressions such as territorial jurisdiction, pecuniary.....kaul, c.j.1. this is an application purporting; to be made under article 226 of the constitution. the applicant dayabhai poonambhai patel is a resident of barwani. prior to its integration with madhya bharat barwani was an independent state governed by its ruler styled his highness the maharana of barwani. according to the applicant by an agreement dated 30-11-1947 his highness the maharana granted to him for the value of a consideration, a monopoly (sole right) for transport of passengers by motor buses within the state. one of the terms of the agreement was that no other buses or taxies except chose of the applicant would be allowed to ply on hire within (the state territory. that on 29-6-1948 the state of barwani was merged in & became a part of the union of madhya bharat. this was.....
Judgment:

Kaul, C.J.

1. This is an application purporting; to be made under Article 226 of the Constitution. The applicant Dayabhai Poonambhai Patel is a resident of Barwani. Prior to its integration with Madhya Bharat Barwani was an independent State governed by its Ruler styled His Highness the Maharana of Barwani. According to the applicant by an agreement dated 30-11-1947 His Highness the Maharana granted to him for the value of a consideration, a monopoly (sole right) for transport of passengers by motor buses within the State. One of the terms of the agreement was that no other buses or taxies except chose of the applicant would be allowed to ply on hire within (the State territory. That on 29-6-1948 the State of Barwani was merged in & became a part of the union of Madhya Bharat. This was effected in pursuance of a Covenant entered into on 22-4-1948 between the Ruler of Barwani & the Rulers of a number of other States in Central India This had the sanction of the then Govt. of India. The Union acceded to the Dominion of India & now forms a State of Indian Republic under its old name Madhya Bharat.

2. It is further averred that under Article VI (1)(b) of the Covenant to which reference has. been made all the duties or obligations of the Ruler of Barwani pertaining or incidental to the Govt. developed upon the united State of Madhya Bharat & the latter undertook & was bound to discharge the same. That the Govt. of the Union adopted & continued the agreement of 30-11-1947 & the petitioner was allowed to operate his bus services In terras of the above mentioned agreement; that after the merger the royalty & the other benefits to which the Ruler of Barwani was entitled under the agreement of 30-11-1947 were paid by the applicant & received by the Govt. of the Union. That in violation of the terms of the agreement the Regional Transport Officer, Indore-an employee of the Madhya Bharat Govt. - by a notification published in the State Govt. Gazette invited applications for permits to ply on hire passenger buses on a number of routes within the area covered toy the said agreement. It was contended that his was an illegal act in excess of the jurisdiction of the Regional Transport Authority.

3. The Motor Vehicles Act (IV (4) of 1939) was adopted by the Madhya Bharat & came into force Within the territories of the Union on or about 1-10-1949. It is complained that the applications made by the present petitioner for grant of permits to ply motor buses on hire on some of the routes covered by the agreement of 30-11-1947 were not dealt with by the Regional Transport Officer in accordance with the Law. It is complained that they were allowed to remain pending for an inordinately long period & in doing so the State authority acted improperly, maliciously & illegally. That on or about 1-1-1950 the Govt. of Madnya Bharat began to operate a bus service of its own on some of those routes. This according to the applicant was done in breach of the provisions of the Motor Vehicles Act & was illegal.

4. That subsequently permits to ply buses on hire over some of the routes covered wholly or in part by the agreement of 30-11-1947 were granted by the Regional Transport Authority to other persons though the present petitioner had also applied for the same. That in doing so the State authority acted illegally & usurped a jurisdiction not vested in him by Law. That in July 1950 & subsequently the Madhya Bharat Govt. started running its own bus services on some of these routes & the Regional Transport Authority rejected the present applicant's application to ply buses on hire on those routes & allowed the State of Madhya Bharat to run its own bus services in violation of the provisions of the Motor Vehicles Act.

5. The petitioner prays that this Court may Issue a writ of certiorary calling for the records of the various orders passed & the decisions taken by the Regional Transport Authority in this matter & after examining their legality & validity quash the same; that a writ of mandamus be issued against the first opponent & direct him to dispose of certain applications made by the present petitioner & to cancel the permits given by him to opponent No. 2. It is further prayed that a writ of prohibition be issued against both the opponents prohibiting them from doing any act or passing any orders likely to prejudice the legal rights of the petitioner & prohibiting the second opponent, its servants & agents from operating any bus service on certain routes specified in the annexture to the application.

6. There is also a prayer that suitable directions & orders be issued pending the disposal of the present application to save the petitioner from the injury that is being caused to him on account of the illegal acts of the opponents

7. A preliminary objection was taken to the hearing of the application. It was contended that in view of the majority decision of this Court in 'Anaant Bhaskar Lagu v. State' A.I.R. (37) 1950 M.B. 60 the present application was not maintainable. The question whether an original motion or application under Article 226 of the Constitution could be entertained by the Madhya Bharat High Court was first raised in this Court in the case of 'Harendranath Sharma v. State of Madnya Bharat A.I.R. (37) 1950 M. B. 46) & answered in the affirmative by a division bench of (Dixit & Mehta JJ.). As some doubt about the correctness of that decision was raised in another case in which the same point was involved that case was referred to a Full Bench of three Judges (myself & Shinde & Mehta JJ.). The view taken by me was against that taken in 'Harendranath's case.

8. For the reasons given by me in my judgment reported in 'Anant Bhaskar Lagu v. State A.I.R. (37) 1950 M. B. 60. I came to the conclusion that the issue of high prerogative writs is a matter of original jurisdiction & as this High Court which was originally constituted under the Madnya Bharat Act VIII (8) of 1949 was not vested with such jurisdiction & as no ordinary original jurisdiction Civil or Criminal was conferred upon this Court by Article 226 of the Constitution of India, it could not issue a writ of habeas corpus as such, nor exercise the powers referred to in that Act upon an application made to it. Article 226 according to the view taken by me conferred upon this Court certain powers in addition to those which it possessed & could exercise under Article 225. I further held that as a result of Article 35(b) the provisions of Section 491 Cr. P.C. continued in force & could not be superseded by Article 226. Shinde J. agreed with me but Mehta J. adhered to the view which was taken by him & Dixit J. in 'Harendranath's case. The view of the majority of the full bench was given effect to.

9. When the present application was made in the month of December my attention was invited to the fact that practically all other High Courts in the country have taken a view different from that taken in the decision in the Full Bench case of 'Anant Bhaskar Lagu' & I was asked to refer the matter for consideration to a larger bench. In this High Court also the majority view taken in Lagu's case had the support of only two Judges & the opposite view taken in 'Harendranath's case also represented the opinion of the same number of Judges. In these circumstances I considered it proper to refer the matter to a bench of five Judges. We have had the advantage of hearing elaborate arguments on both sides & of considering a number of reported cases in which a view different from that expressed by the majority of the Full Bench in 'Lagu's case was taken. With such almost overwhelming authority against the view taken by me I have naturally considered the arguments advanced before us very carefully, but feel that the reasons which inclined me to take the view expressed 'in Lagu's case' have not been met in any of the cases, nor in the argument addressed to us at the Bar. I am, therefore, unable to change my opinion as to proper construction which should be put upon Article 226.

10. I have already given my main reasons for the view taken by me in Lagu's case' & whatever I say now will be only to supplement what was said by me there already.

11. The question for consideration may in a few plain words be stated thus: The Constitution has by Article 226 expressly conferred certain powers upon every High Court. Whether these powers can be exercised by Madhya Bharat High Court upon an application or original motion made by the party in a case like the present?

12. Courts as we know exist for the purpose of enforcement & protection of legal rights. This is achieved by investing them with authority to take cognisance of matters presented in a formal way for their decision or to decide matters that are litigated before them ('Halsbury's Laws of England' Hailsham Edn, Vol. 8, p. 531, para 1178). The authority which is thus possessed by each court is called its jurisdiction. Jurisdiction it has been said consists in taking judicial cognisance of a case involving the determination of some jural relation. 'Amritrav Krishna v. Balkrishna Ganesh' 11 Bom. 488 at p. (490). It is the legal authority to administer justice according to the means which the Law has provided & subject to the limitations imposed by the Law upon judicial authority. Harprasad v. Jafar Ali 7 All. 345 at (350).

13. All Courts do not, however, possess this authority in the same measure or extent. Nor do they exercise it in the same manner. The jurisdictions of different courts are fixed with reference to various criteria. A court's jurisdiction may be fixed with reference to area or territory or with reference to persons over whom it can be exercised, of the subject-matter of the dispute or any other or it may be with reference to the nature or value criterion. Jurisdiction may again be exercisable as a court of first instance, a court of appeal, a court of revision or as a court of reference. Expressions such as territorial jurisdiction, pecuniary Jurisdiction, civil jurisdiction, criminal jurisdiction, appellate jurisdiction, supervisory jurisdiction, testamentary jurisdiction, admiralty jurisdiction, insolvency jurisdiction, ecclesiastical jurisdiction & the like are employed to indicate the character or quality of jurisdiction which a court may be authorised to exercise. The above enumeration of various kinds of jurisdictions is only illustrative. There may be other jurisdiction, e.g., the High Court exercises a disciplinary jurisdiction over legal practitioners.

14 The authority thus possessed by any court is distinct from the powers which it makes use Of in exercise of its jurisdiction. The two are distinct & separate concepts. The distinction between them is essential & should not be lost sight of. To illustrate what I mean, a Magistrate has the authority to entertain a complaint with regard to an offence committed within the territory over which he exercises jurisdiction. When a complaint is presented to him & he takes judicial cognisance of it, he assumes jurisdiction over the case. When he issues a summons or a warrant against the accused named in the complaint he makes use of the powers possessed by him as a Magistrate in exercise of his jurisdiction. By the term Jurisdiction, as already stated, is meant the authority which the court has to decide matters that are litigated before it or to take cognisance of the matters presented to it in a formal way for its decision. In exercising its jurisdiction every court makes use of various powers possessed by it. If a decree is passed by a court in a case which is outside its jurisdiction it is nullity. The person against whom the decree is passed need not get it set aside by an appeal. He can simply ignore it & by doing so he incurs no liability. But if a decree is passed by a court in a case which is within its Jurisdiction, & in passing the decree it makes an erroneous use of its powers, it is a good decree which the J. D. can disobey only at his peril. All this is elementary knowledge & no authority is needed to support what has been stated above. In case any were needed reference may be made to Ledgard v. Bull 13 I.A. 134, 'Meenakshi Naidu v. Subramania Shastri 14 I.A, 160, 'Amir Hasankhan v. Sheo Baksh Singh 11 I.A. 237 & Lachmi Narain v. Balmukund 51 I. A. 321.

15. It may further be observed that the existence of jurisdiction is different from the exercise of it. It has been held that failure to comply with the statutory requirements in the assumption of jurisdiction and exercise of that jurisdiction entail different consequences. The authority to deal with a matter at all is what makes up jurisdiction. When there is such jurisdiction the decision of all other questions in the matter is only an exercise of that jurisdiction. ('Hriday Nath v. Ram Chandra 48 Cal. 138). There is a basic difference between want of jurisdiction & an illegal or irregular exercise of jurisdiction. ('Janardan Reddy v. State of Hyderabad A.I.R. (38) 1951 S.C. 217 at page 220). Jurisdiction & power are some times loosely used as convertible terms. But this is no justification for ignoring the essential difference between the two. That this distinction was present in the minds of the makers of our Constitution is clear from a perusal of Article 225 which runs as follows:

Subject to the provisions of this Constitution & to the provisions of any Law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the 'jurisdiction' of, & the Law administered in, any existing High Court, & the respective 'powers of the Judges thereof in relation to the administration of justice in the court, including any power to make rules of court & to regulate the sittings of the Court & of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution.

Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.

16. In connection with jurisdiction of Courts it is well to remind ourselves of a distinction between what are called Superior Courts in England & the Courts in this country. The former are King's Courts. The root principle of English Law about jurisdiction is that Judges stand in the place of the Sovereign in whose name they administer justice ('Halsbury's Laws of England, Hailsham Edn, Vol. 8, p. 533, para 1179). We have no King & naturally in our country there is no room for any such theory that the King is the fountain head of justice & every Judge who dispenses justice in a Superior Court does it in the name of the King or in exercise of an authority which the King himself could exercise. In England the King being the fountain of justice there could be no limits of any kind to his jurisdiction in judicial matters, except such as were imposed by him of his own free will or under pressure of political or other exigencies of the times. The King could exercise what may aptly be called a universal jurisdiction within his realm & in theory no one could question the matter in which he chose to assume jurisdiction in any matter.

17. We have no King nor any authority corresponding to a King; Every Court in this country derives its jurisdiction (authority to take cognisance of causes or matters) & powers from the Constitution or Laws enacted or conserved under the provisions of the Constitution. There is no authority in this country of whom we can say what Carter says of English Kings:

A king is the fountain of justice, his word is Law, & his writs settle the rights of 'men'- (A History of English Legal Institutions, (Carter) p. 48'.

18. In England the limits on jurisdiction of Courts are imposed by the Statute, Charter or Commission under which they are constituted & may be extended in the like manner. These limitations may be as to the kind & nature of the actions & matters of which the particular Court has the cognisance, or as to the area over which the jurisdiction shall extend or it may partake of both these characteristics. If no restriction is imposed the jurisdiction is said to be unlimited ('Halsbury's Laws of England, Hailsham Edn, Vol. 8, para 1176).

19. It is said of Superior Courts in that country that prima facie no matter is deemed to be beyond the jurisdiction of such a Court ('Halsbury's Laws of England, Edn, 2, Vol. 8, para 1173). According to Carter:

The business of the King's Bench was to correct all crimes & misdemeanours that amounted to a breach of the peace, the King being then plff. for such were in derogation of the JURA REGALIA; & to take cognizance of everything not parcelled out to the other Courts. It also had superintendence of the other courts by way of appeal; thus 'error' lay from the Common Pleas to the King's Bench. (A History of English Legal Institutions by Carter, p. 85.)

20. The following observations of Sir Thomas Strange in the case of 'Nagapah Chitty v. Rachummah (Strange: Notes of cases, Vol. I, page 152) decided by the Supreme Court of Madras aptly describe the character & quality of the jurisdiction exercised by Superior Courts in England. Objection was taken to the jurisdiction of Supreme Court in that case. Dealing with the objection Sir Thomas remarked:

It has been truly observed that it is impossible to argue in this court from analogous cases of jurisdiction in the Courts at home. Those Courts being by their Constitution according to their respective modes & purposes of proceeding, the great, depositaries of the universal justice of the realm, & as such, in every instance in which it is attempted to withdraw a case from their cognizance, bound to see distinctly & unequivocally that a jurisdiction adequate to the object in view exists elsewhere. If that be not stated, so as to appear to the Court a plea to the jurisdiction fails, & the jurisdiction remains. But it is different. here, because, though co-ordinate in its nature with those courts so far as its jurisdiction attaches, the jurisdiction of this Court is limited with regard to persons, not being British subjects. (I have taken this passage from Ryots of Garabandho v. Zamindar of Parlakimedi A.I.R. (30) 1943 P.C. 164 (at page 175) Where it was referred to by Viscount Simon.)

21. The jurisdiction of the High Court of Justice in England is both, original & appellate & extends to all causes of action & is unlimited in, amount. (Halsbury, Vol. VIII, para 1278).

22. We could not, at any rate before 26-1-1950 say about our High Courts, what Sir Thomas Strange said of the Superior Courts in England that they were 'the great depositaries of the universal justice of the Realm'. Though the King of England was the Emperor of India & the High Courts in this country were first established by his authority, they were not constituted depositaries of the universal Justice of the dependency (later dominion). Every High Court in the country exercised jurisdiction over a limited area & even within that area it could not take cognisance of all matters & causes. It had the limits of its jurisdiction both original & appellate, defined by the instrument by which it was established. It could, exercise such other jurisdictions as were conferred upon it by any Law that might be in force for the time being. It is true that after coming into force of the new Constitution such jurisdiction as was enjoyed by the High Courts has been extended so as to cover a wider range. But before the Constitution came into force the High Courts in this country could not be said to have universal jurisdiction. The Madhya Bharat High Court was not invested even with a general, far less, universal jurisdiction. Though by Section 32, High Court of Judicature Act, No. 8 of 1949 this High Court had superintendence over all the courts for the time being subject to the appellate jurisdiction, this was as appears from the wording of the section as well as marginal note appended to it, confined to exercise of administrative functions. Sub-S. (2) of this Section specifically lays down that nothing therein shall be construed as giving the High Court any jurisdiction to question any judgment of any inferior Court which was not otherwise subject to appeal or revision. The High Court like some others in the Country could exercise only a limited jurisdiction.

23. I may point out at this stage that besides the connotation to which reference has been made on page B (Sic; para 12) the term 'jurisdiction' is sometimes used in another sense. It is employed occasionally to signify the authority to pass particular orders or do particular acts. In 'Lachminarain v. Balmukund 51 LA. 321 a preliminary decree for partition was passed & the case was fixed for subsequent proceedings. The plff. in spite of notice of the date of hearing absented himself on the appointed day. The subordinate judge thereupon dismissed the suit for default. When the matter went up before the Judicial Committee in appeal their Lordships observed:

But, for the reasons which have been given, the case did not come under O. 17 R. 2 & the order made (by the Subordinate Judge) was made without jurisdiction.

The following observations of Kania Chief Justice in the recent case of 'United Commercial Bank v. Their Workmen : (1951)ILLJ621SC (5 & 237, will furnish another example of the use of the term 'jurisdiction' in the sense of authority to do a certain act:

Even if the contention of the respondents that Mr. Chandrasekhar Aiyar continued throughout a member of the Tribunal were accepted, in our opinion, the appellants' objection to the jurisdiction of the three persons to sign the award must be upheld. Section 16 which authorises them to sign is preceded by Section 15. Unless they have complied with the provisions of Section 15, i.e., unless all the three have heard the matter together they have no jurisdiction to make the award in terms of Section 15 'have therefore no jurisdiction to sign the award under Section 16.' In any view of the matter the awards are, therefore, without jurisdiction.

24. It should be borne in mind that jurisdiction in the last mentioned, sense must depend for its exercise upon a Court being invested with the jurisdiction in the sense mentioned earlier at p. 8, (See Para 12), i.e., the authority to take judicial cognisance oil the cause or matter in relation to which the order is to be passed or the act to be done. For example a Court may have authority to appoint a receiver but it can make such an order in a matter relating to the administration of the assets of a deceased person only if its invested with what is known as testamentary jurisdiction & not otherwise.

25. I may here invite attention to an important distinction between Law Courts on the one hand & other tribunals, authorities or functionaries upon whom powers may be conferred, on the other. In the case of latter ii any powers are conferred, the tribunal, authority or functionary can, provided circumstances justifying their us? exist, exercise those powers for the purpose for which they were given; not so a court of Law. It can exercise a power conferred upon it only if it has further the (Jurisdiction) authority to take cognizance of the cause or matter in relation to which the powers should be exercised. No such consideration arises in the case of other tribunals, authorities or functionaries. This is due to the peculiar constitution, purposes & modes of proceedings of the courts of Law which in this respect differ from all other bodies & functionaries that may be invested with powers. This is a characteristic peculiar to the courts of Law & places them in a category entirely their own. It is true that even other tribunals, authorities & functionaries cannot exercise the powers conferred upon them except for legitimate purpose & in appropriate circumstances. When they fail to observe these conditions they are guilty of abuse of their powers & there is usually prescribed a procedure to keep them within proper bounds & check any abuse of powers on their part. But if a court of Law exercises a power, conferred upon it in relation to a matter which falls outside its jurisdiction, anything done toy it is a nullity. No sanction attaches to any such act & it may be treated as non-existent.

26. It follows, therefore, that if any effective use is to be made of the powers conferred upon a Court of Law, there must, in order to enable it to -exercise those powers, further be some words in the article, section, order or rules conferring the powers, which either expressly or by necessary intendment show that the court in question can deal with the particular matter in relation to which the powers are to be exercised. It is not enough that a power has been conferred & the purpose for which it is to be used indicated. In the absense of language showing that the court can take cognizance of the matter in relation to which the powers conferred can be used, such powers cannot be exercised by the court & must remain dormant or ineffective.

27. No special formula is prescribed for investing the Court with jurisdiction over a cause for matter & even though the presumption against creating new jurisdictions to which reference is made by Maxwell in Chap. V of his well-known work, may not be wholly applicable to this country, it is essential that whenever a new jurisdiction, is created this must be done by language which is clear & unequivocal. I have drawn attention to two connotations of the term jurisdiction. Care should be taken that language which is ordinarily used to confer jurisdiction only in the sense referred to at pages 17 & 18, (ie., paras 22 & 23), is not unduly strained & an assumption made that jurisdiction has been conferred in the other sense, unless this is clearly indicated. It should not, in the absence of cogent reasons which leave no doubt that it was intended not only to confer authority to pass orders but also jurisdiction in the sense of authority to take cognizance of the matter in relation to which the orders may be passed, be strained to cover that meaning.

28. As already stated Madhya Bharat High Court was constituted by local Act No. VIII (8) of 1949. S3. 20, 21, 22, 23, 24, 25, 25-A & 20 are the main sections which deal with the jurisdiction of the High Court. Section 20 provides that the High Court shall be a Court of record. Section 21 confers upon the High Court Extraordinary Jurisdiction, both, Civil & Criminal in exercise of which it is empowered:

to remove & transfer to itself & try & determine any suit, case or proceeding being or falling within the jurisdiction of any Court, Civil or Criminal, subject to its superintendence, when it considers it proper to do so in the interest of justice, expediency & convenience.

S. 22 lays down that the High Court shall be the highest Court of appeal & revision in the State & shall have jurisdiction to entertain & dispose of such appeals, revisions & other cases, Civil & Criminal, as it may be empowered to do under the High Court of Judicature Act or any enactment in force in the State. Ss. 23 & 24 respectively define appellate Civil & appellate Criminal jurisdiction of the High Court. Section 25 provides for a special appeal in certain cases. Section 25-A also deals with the same subject. These are the only sections in the Act which have a direct bearing on the matter under consideration.

29. It will be noted that under the provisions of the Act this High Court is a Court of limited jurisdiction. It is principally a Court of appeal & revision only. It cannot exercise any original jurisdiction except extraordinary jurisdiction as provided by Section 21 or in cases of contempt of Court which it can do as a Court of record under Section 20 read with Section 26 of the Act. It follows, therefore, that it cannot take cognizance of any other cause or matter as a court of first instance. In other words it has no authority to entertain, hear or determine an application relating to any matter whatsoever except as a court of appeal, revision or reference or in exercise of its jurisdiction under Ss. 20, 21 & 36. Apart from the High Court of Judicature Act, this High Court can exercise original jurisdiction under enactments in force in Madhya Bharat which may confer such jurisdiction upon it. For example under Section 491, Cr. P.C. It can issue directions in the nature of habeas corpus, either when moved to do so by an application or of its own motion. Jurisdiction exercised by the High Court under Ss. 22 & 26 of Patents & Designs Act (1911) Or under the Indian Succession Act in the matter of grant of probates are other examples.

30. Besides these jurisdictions this High Court; can in common with every other High Court in the country, exercise such other jurisdiction & authority as is conferred upon it by the provisions of the Constitution. The main article by which jurisdictions of various kinds are conferred upon the High Courts are Article Nos. 215, 225, 228, 227 & 228. Article 215 states that every High Court Khali be a Court of record with powers to punish for contempt of itself. Article 225 provides that 'the jurisdiction of every High Court & the respective powers of the Judges thereof in relation to the administration of justice shall be the same as immediately before the commencement of the Constitution. There is a proviso to that article which obviously has reference to the restrictions placed by Section 226, Govt. of India Act, 1935 to the exercise of original jurisdiction by the High Court in any matter concerning revenue. This High Court had no original jurisdiction except as already stated &, therefore, the consideration of the proviso need not detain us.

31. Next we have Article 226. As I will ' above occasion to consider it at some length later, we may in this cursory review of the Articles concerning jurisdiction of the High Courts, pass on to Article 227. This confers upon every High Court superintendence over all courts & tribunals throughout the territories in relation to which it exercises jurisdiction & the last article of this series (Art. 228) confers upon the High Court powers to transfer to itself certain cases from other courts. We may consider Article 226 which runs as follows:

1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any govt., within those territories directions, orders or writs, including writs in the nature of 'habeas corpus' 'mandamus' prohibition, 'quo warranto' & 'certiorari' or any of them, for the enforcement of any of the rights conferred by Part III & for any other purpose.

2) The power conferred on a High Court by Clause (1) shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32.

32. It was contended by Mr. Samvatsar, learned counsel for the applicant, that inasmuch as the articles confers upon every High Court the power to issue directions, orders & writs for enforcement of fundamental rights & for any other purpose it necessarily authorises the High Court to take cognizance of every matter in relation to which orders, directions & writs may be issued. He developed his argument thus:

(a) The article defines the territories within which the powers conferred are to be exercised, specifies

(b) the persons & authorities against whom these directions, orders & writs may be issued, indicates

(c) the character of powers conferred; & lastly mentions,

(d) the purposes for which the powers conferred may be exercised.

33. He contended that in view of all this it must be taken that the article confers upon the High Court's jurisdiction to take cognizance of every cause or matter in relation to which the powers given can be exercised.

34. He fortified his argument by a reference to Article 32 & pointed out that the language of Article 32(2) was the same as of Article 226(1). Me contended that the former article had been interpreted by the Supreme Court as conferring upon it jurisdiction to take cognizance of every matter which involved a question of enforcement of fundamental rights & argued that the same interpretation should be put on the language of Article 226(1).

35. He further referred to the speeches of certain members in the Constituent Assembly to convince us that it was the intention of the makers of the Constitution that every High Court should exercise the jurisdiction contended for by him; & lastly, he invited our attention to a number of decided cases which showed that practically every High Court in India had taken a view of Article 226 which was contrary to the one which I am inclined to take.

36. I will deal with each of these arguments separately. I will take up the arguments based upon the language of the article first:

37. We find that the Article confers very wide powers upon the High Courts. Every High Court in the country can issue not only directions & orders, but also writs including some high prerogative writs, as they are called by English lawyers. Formerly a writ was the King's order to his liege, written on a parchment & sealed with a royal seal, & disobedience to the writs was a contempt to the royal authority & entailed penal authority & entailed penal consequences. (Carter, p. 47). Now the term is often used in a generic sense, &. may on the authority of Oxford Dictionary be applied to any 'form of written command in the name of court or other authority to do or abstain from doing something.' Directions & orders are also commands. The latter expression being employed usually for commands which are capable of execution & the former to denote commands which may not necessarily be so. Thus all the three expressions used may be said to indicate commands. The mention of some of the writs by name, preceded as their enumeration is by the word 'including' clearly shows that it had been done only to emphasize the widely general character & quality of the commands that may be issued.

38. Simultaneously with the conferment of such large powers - powers extensive both in character & quality - the article puts no limits upon the purposes for which the powers conferred may be used. The reference in the article to fundamental rights in particular has to my mind no other significance except to ensure that the enforcement of those rights was not excluded from the wide range of purposes for which the powers conferred could be exercised. It was possibly feared that a doubt whether the powers conferred could be exercised; for enforcement of fundamental rights might arise because a separate procedure for enforcement of those rights was prescribed in Part III of the Constitution. Thus we see that the powers conferred are virtually unlimited. There is no limit! placed upon the purposes for which they may be exercised. The powers conferred may again be used throughout the territories in relation to which any High Court exercised Jurisdiction & they may be used against any person or authority including, in appropriate cases, any Govt. within those territories. Taking all this into consideration, it may well be said that the article confer upon the High Court virtually a universal jurisdiction which may be exercised throughout the territory for which the High Court is established. What is the nature of this jurisdiction? Is it jurisdiction in the sense of authority to take cognisance of all causes or matters or is it only the authority to exercise the large powers that have been conferred?

39. If we turn to Article 225 which immediately precedes the article under consideration, we find that the makers of the Constitution have used both the terms 'jurisdiction' & 'power' in that article, & each to indicate a different meaning. Article 225 further lays down that the Jurisdiction: & power of every High Court after the Constitution comes into force shall be the same as immediately before the Constitution. The words 'shall be the same' clearly provide that even after 26-1-1950 every High Court shall exercise all the jurisdiction & every power which it could exercise before that date. They further show that it 'shall not' exercise any Jurisdiction or power which was not possessed by it before that date. This is of course subject to other provisions of Constitution or to any Law that may be made by the appropriate Legislature under the powers conferred by the Constitution. With such clear indication of the intention of the makers of the Constitution on the subject of jurisdiction of High Courts it is only legitimate to infer, that if it was intended to make any radical change in the extent & character of jurisdiction of the High Courts such intention would be indicated by words clear, unequivocal & unambiguous, & that it will not be left to be inferred by implication from doubtful language. In the absence of any such words, the contention put forward by Mr. Samvatsar has to be carefully scrutinised before it can be accepted.

40. If we examine Article 226 the first thing which attracts attention is that though it confers very wide powers upon every High Court there are no words in the article which would give Jurisdiction to the court to take cognizance of the matters & causes in relation to which those powers are to be exercised. This by itself may not be conclusive, but is a point which cannot be left out of consideration. The article firstly confers certain powers upon every High Court. Secondly it lays down the territories within which those powers are to be exercised. Thirdly, it prescribes the persons & the authorities against whom the powers may be exercised & fourthly the purpose for which they may be exercised. All this does no more than confer on every High Court the authority or capacity to pass certain orders or do certain acts, i. e., jurisdiction within the meaning of that expression as mentioned at pp. 17 & 18 (i. e., in paras 22, 23) of this Judgment; but there is no word or phrase which confers upon High Court jurisdiction in the sense referred to on p. 8 (i.e. in Para 12).

41. We may next examine each of the four parts into which this article may conveniently be divided, & consider whether there is anything in any one of those which would suggest a necessary or even a possible intention to confer jurisdiction in the last mentioned sense.

42. First Part: 'Notwithstanding anything in Article 32 every High Court shall have power to issue directions, orders & writs including writs in the nature of habeas corpus, mandamus, quo warranto & certiorari or any of them.' I have already shown that all the three terms - directions, orders & writs - expressed in the language of Indian Law & procedure signify no more than orders (i.e. commands) of every description. The enumeration of certain high prerogative writs by name does not for obvious reasons enlarge the scope envisaged by the directions, orders & writs which precede the enumeration. This is clear from the use of the words 'including' after the word 'writs' & before the five writs are enumerated. 'Including' is a term employed generally where the scope of the class indicated by the words preceding it is wider than that of the class specified by the terms which follow. The five high prerogative writs were, to my mind, mentioned by name to make it clear that the wide generality of the terms directions, order & writs was in no way limited to the orders usually passed by our courts, It was further intended to indicate that the High Court may issue even certain orders of well-known character, which are ordinarily Issued by courts under another system of Law & in a limited number of cases by the three Presidency High Courts in this country. But neither the fact that the power to issue orders of every kind is conferred, nor the inclusion within the scope of the powers conferred of the five orders (writs) specifically named, affords any ground for the inference that this part of the article confers upon the High Court Jurisdiction to take cognizance of the causes or matters in relation to which the orders could be issued.

43. Much stress was laid by the learned counsel on the enumeration of five high prerogative writs in the article and he argued that conferment of the powers to issue these writs necessarily implies conferment of the jurisdiction to take cognisance of every cause or matter in relation to which any of those writs can be issued. To my mind the argument is not sound. No inference as to the Jurisdiction of a Court can legitimately be drawn from the character of any order or orders which it is within its capacity to pass. Were it otherwise' a Munsiff or a Civil Judge who has authority to appoint a receiver under Section 94 read with O. 41 R. 1, C. P.C. may exercise that power in a matter over which he has no jurisdiction - say in a matter relating to the grant of a succession certificate - or a probate even though he is not invested with any testamentary jurisdiction.

44. It will be noted that even in England it is not the power to issue writs which confers upon the High Court the authority to take cognizance of any cause or matter. But it is the existence of some jurisdiction in exercise of which the power to issue writs is made use of. This may be seen from the note appended to Section 56(2), Supreme Court of Judicature (Consolidation) Act, 1925, to the Annual Practice for 1949 (Vol. 2 P. 3218). Section 56 runs thus:

Without prejudice to any other provision of this Act, there shall be assigned.

1. To the Chancery Division - Etc. Etc. Etc.

2. To the King's Bench Division-

a) All causes & matters, Civil & Criminal which, if the Act of 1873 had not passed, would have been within the exclusive cognisance of the court of Queen's Bench in the exercise of its original jurisdiction, or of the Court of Common Pleas at the Westminster, or of the Court of Ex-chequer, either as a court of Revenue or as a common Law Court.

At the foot of the Sub-section there is the following note:

Court of Queen's Bench:-The exclusive jurisdiction extends to the supervision of inferior courts by prohibition, certiorari, case stated at common Law; in the case of quarter sessions, See 'R. V. Chantrell (1975) 10 Q.B. 587.

It will be seen from the above note, that it was in the exercise of its supervisary jurisdiction over inferior courts that the writs of prohibition & certiorari were made use of. These were powers that could be used to implement that jurisdiction. Probably at the time when high prerogative writ first began to be issued, the distinction, between the jurisdiction, of a court & the powers which it could exercise was not clearly understood in England; but with the evolution of juristic notions & a clearer conception of the distinction between jurisdiction & power it would not be correct to say that the court of Queen's Bench acquired the superintendence of inferior courts merely because it could issue the writs of prohibition & certiorari.

45. In this connection I may, with advantage refer to some observations of Sir John Beaumont in the Privy Council case of 'Hamid Hassan v. Banwarilal Roy' 51 CWN 716. In that case the Governor of Bengal purporting to act under powers, conferred by R. 51 (P) of the Defence of India Rules made an order superseding the Commissioners of the Howrah Municipality for a period of one year, & directed that Hamid Hassan shall exercise & perform all the powers & duties which might be exercised or performed by the Chairman & the Commissioners during the period of supersession. A rule nisi calling upon Hamid to show cause why a rule in the nature of 'quo warranto' should not be exhibited against him, as to by what authority he was exercising the powers & performing the duties of the Chairman & the Commissioners of the Municipality was issued by the Calcutta High Court. After hearing the parties the rule was; made absolute. The High Court held that under High Courts Act 1861 & amended Letters Patent of 1865 the original jurisdiction both territorial & personal of tile Supreme Court over British subjects & servants of the Govt. was, on the abolition or the Court, inherited by the High Court. That the jurisdiction of the Supreme Court included the right to grant the information in the nature of 'quo wan-auto' against the persons falling within the Court, inherited by the High Court. That Hamid Hassan was a servant of Govt. & hence subject to the jurisdiction of the High Court, The rule was accordingly made absolute. The matter was taken before the Judicial Committee on appeal. One of the contentions put forward by Sir Walter Monckton, learned counsel for Hamid, Hassan, was that, assuming that the Supreme Court could have had power to grant the information in the present case the High Court had no such power because it had not inherited the personal jurisdiction from the Supreme Court over persons residing outside Calcutta.

46. Effect was given to this contention of Sir Walter. In allowing the appeal, Sir John Beaumont who delivered the opinion of the Board made two observations which to my mind have a direct bearing on the point under consideration. His Lordship remarked 'at p. 722' of the report:

It cannot be disputed that the issue of such writs (high prerogative writs) is a matter of original jurisdiction.

Winding up the discussion he further observed 'at p. 723' of the report:that the power to grant an information in the nature of 'quo warranto' arises in the exercise of the Ordinary Original Civil Jurisdiction of the High Court, that such jurisdiction is confined to the town of Calcutta & that as the appellant does not reside & the Office which he is alleged to have usurped is not situate within those limits the Court has no power to grant information in this case.

47. It will be noticed that in the case before the Board the High Court had the power to allow an information in the nature of 'quo warranto' to be exhibited. It was also invested with original Jurisdiction in the exercise of which such an information could be exhibited & granted by it. But this was limited to the town of Calcutta. The court had only appellate jurisdiction at the place where the appellant resided or where the office he was said to have usurped was situate but the want of original jurisdiction over that locality rendered the Court incapable of exercising that power. It is thus clear that that power could be exercised only:

1. If the court was invested with the original jurisdiction &

2. It could exercise such Jurisdiction over the place where the Office which the opposite party was alleged to have usurped was situate.

48. If either of the two conditions was not fulfilled the power to issue 'quo warranto' though possessed by the High Court could not be exercised. Each of the two conditions mentioned above was essential for the exercise of the power. In our case though Madhya Bharat High Court may have territorial jurisdiction in Barwani it is not invested with any original jurisdiction under Article 226 or by the High Court of Judicature Act.

49. The whole basis of the judgment of Sir John Beaumont in 'Hamid Hassan's case' is that the power to issue high prerogative writs is only part of the original jurisdiction conferred upon the High Court. At p. 722 of the report he pointedly drew attention to the fact that here is no mention of high prerogative writs in the Letters Patent. It would appear that according to his view, the power to issue such writs was an incident of the original jurisdiction with which the High Court was invested. My attention has not been drawn to any authority to support the' view that the converse is also true i.e. if the power to issue orders in the nature of high prerogative 'writs is conferred upon a Court as part of its general authority or capacity it carries with it as an incident of that power the jurisdiction to take cognisance of any matter in relation to which any one of those writs could be issued. Our High Courts.. even apart from Article 220, have power to issue directions & orders of various kinds for various purposes. But naturally this power can be used always subject to the condition that the High Court has some jurisdiction (Judex as Stephen calls it in his Commentaries, Vol. 3, Book 5, Chap. II, p. 315) to implement which this power can be exercised. I may say at the risk of repetition that apart from the power to pass an order, direction or writ, there must exist the authority to take cognisance of the matter in relation to which such order, direction or writ may be issued, otherwise the power remains ineffective or dormant.

50. We may next consider if there is anything inherent in the writs specifically mentioned in the article to suggest that the power to issue them carries with it by necessary implication, a jurisdiction to take cognisance of every cause or matter in relation to which they might be issued. For this purpose I will content myself with taking up only two of the writs by way of illustration - 'Certiorari' & 'Quo warranto'. The following observations of Viscount Simon in 'Ryots of Garabandho v. Zamindar of Parlakimedi' A.I.R. (30) 1943 P.C. 164 at pp. 165 & 166 will show the character, quality as well as origin of this writ:

The ancient writ of 'certiorari' in England la an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the Superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should 'be certified' of the proceedings to be investigated, & the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior 'Courts' in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, 'certiorari' will lie. The remedy in point of principle, is derived from the superintending authority which the Sovereign's Superior Courts, & in particular the Court of King's Bench, possess & exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, & operates, within certain limits, in British India.

51. I want to lay stress on the sentence beginning with the words 'The remedy in point of principle etc. etc.' It is thus clear that it was in exercise of the power of superintendence which the Superior Courts possessed over inferior jurisdictions that the writ was issued. If there is no supervisory or other similar jurisdiction in a Court it is difficult to see how it can issue a writ of certiorari. Such jurisdiction is conferred upon the High Courts in this country by Article 227 of the Constitution & as already observed earlier in this judgment- the power to issue certiorari may be used by our High Courts in exercise of that jurisdiction.

52. 'Quo Warranto':-I have already drawn attention to the observation of Sir John Beaumont in 'Hamid Hassan's case' & in particular to what he said at p. 722 of the report: -.That the power to grant an Information in the nature of quo warranto arises in the exercise of the Ordinary Original Civil Jurisdiction of the High. Court....

The writ of quo warranto is now obsolete in England. Its modern form is an information in the nature of quo warranto. According to Sir John Beaumont the issue of high prerogative writs 'is a matter of original jurisdiction'. There is nothing inherent in the writs which by itself would confer upon a court this jurisdiction if it is not otherwise invested with it.

53. The point which I desire to stress will be clear if we read Clause (1) of Article 226 omitting the words 'including writs in the nature of habeas corpus, mandamus, prohibition, 'quo warranto' & certiorari or any of them'. It will not be disputed that to do so would not change the main structure or the essential character of the article. The words omitted constitute so to say, a parenthetical clause not essential grammatically to the main structure of the article. Omitting these words the clause will read thus:

Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Govt., within those territories directions orders or writs for the enforcement of any of the rights conferred by Part III & for any other purpose.

54. Thus read the article will mean that the High Court can in discharge of its function as a Court of Law, pass any order which it considers proper & such an order shall apply to every person or authority or in appropriate cases to any Govt. within the State for which the High Court is established, & no person or authority of the Govt. within that State can put himself or itself outside the reach of the High Court - & that the High Court will be the judge of the character & quality of the order as also of the form which it might take. The mention of pertain writs, preceded as it is by the word 'including' does not add to the number, character or quality of the orders which the High Court can issue. The article deals with the general authority & capacity of the Court & not with its jurisdiction in the sense referred to at p. 8 (see Para 12) of this judgment.

55. Our attention was invited to Section 4P1, Or. P. C & it was argued that though in that section there are no words expressly conferring jurisdiction upon the High Court to take cognisance of any matter in relation to which the directions mentioned therein may be issued, yet it has never been doubted that the High Court can issue the orders referred to in the section in all appropriate cases. I have already said (Para 27) that there is no special formula prescribed for conferring jurisdiction upon a Court. But when it is intended to do so this must be done in a manner which is free from any doubt & ambiguity. Let us now compare the language used in Section 491 Cr P, C. with that of Article 226(1). I will reproduce here only the relevant portions of the two provisions.

S. 491 of the Cr. P.C. Article 226(1) of the Const.

Any High Court may Notwithstanding anything

whenever it thinks fit, in Article 32 every High Court

direct thhat ft person shall have power....to

within the limits of its issue ,...directions,

appellate criminal juris- orders or writs including

diction be brought up writs in the nature of habeas

before the Court to be corpus, mandamus, prohi

dealt with according to bition, quo warrants &

law etc., etc. certiorari or any of them

.... for any (other) purpose.

56. The difference between them is clear even on a cursory reading of the two provisions. Section 491 confers upon the High Court the jurisdiction to take cognisance of all causes or matters in which the legality of the detention of any person in public or private custody is in question. In the various clauses of Sub-section (1) of this section is indicated the nature of the orders that the High Court may pass. While Article 226 gives no indication of any particular class or classes of causes or matters of which the High Court may take cognisance, nor of the nature of the Orders that it may pass. The argument that the naming of five high prerogative writs gives such indication will not bear scrutiny.

57. It will be seen that habeas corpus, mandamus, prohibition, 'quo warranto' & certiorari have an English content. An attempt has been made to transplant them in Indian soil. It is a matter for consideration how far their original English content is retained by them as a result of the process by which it was attempted to engraft them upon our Constitution. It is noteworthy that the framers of our Constitution were not content to employ for this purpose the same process which was adopted by the framers of the Burmese Constitution when they incorporated these high prerogative writs in one of the articles of their Constitution. Article 25(2) of the Burmese Constitution of 1948 (which I reproduce below from the 'Constitution of India' by Durga Das Basu, p. 58 reads thus:

Without prejudice to the powers that may be vested in this behalf in other courts the Supreme Court shall have power to issue directions, in the nature of habeas corpus, mandamus, prohibition, quo warranto & certiorari appropriate to the rights guaranteed in this chapter.

It does not require any argument to show the difference between the above & our Article 226 (D. Care was taken by the makers of Burmese Constitution to engraft these writs in one of the articles of their Constitution without any change, while in our Constitution these writs have been mentioned only as part of a very large class of orders of undefined character & quality. We find that in Article 226(1) these five writs, of which the nature, character & quality are well defined, are grouped together with a large class of non-descript orders of a general character. It will further be noticed that the purposes for which these five writs may be issued in England are defined & well understood. But under our Article 226 orders & directions in the nature of these high prerogative writs may be issued for any purpose what-so-ever - even purposes different from those for which they are issued in England. Thus it is clear that there was no intention that these high prerogative writs should in this country retain their English content in its entirety. The general scheme of our Constitution further confirms me in this view. Under Article 32(3) Parliament is authorised to empower any court - even a subordinate court - to issue such writs. Thus, there can be no doubt that in the process of transplantation these writs have lost much of their original content.

58. It is not necessary for the purposes of the present proceedings to determine the extent to which these writs retain their original content with us. But in view of the considerations to which reference has been made, to my mind, in our system of Law these high prerogative writs are to be regarded just like other orders, e.g., an order for arrest & production of a person, an Injunction directing some person to do or refrain from doing something, or the like.

59. Reference was made by Mr. Samvatsar to the words 'snail have power' in Clause (1) of Article 226 & it was argued that con-ferment of jurisdiction flowed from these words, in support of this contention he placed reliance on 'Julius v. Bishop of Oxford ( 1880) A.C. 214. It was held in '.nut case that the words 'it shall be lawful' in Section 3, Church Discipline Act, (3 & 4 Vict. c. 86) of themselves make that legal & possible which there would, otherwise, be no right or authority to do. Their natural meaning is permissive & enabling only. It was further held that there may be circumstances which may couple the power with a duty to exercise it. S.3 of the Act provides that in every case of any clerk in the holy orders who may be charged with any offence against the Laws Ecclesiastical, or concerning whom there may exist scandal or evil report as having offended against the said Laws, it shall be lawful for the Bishop of the diocese within which the offence is alleged or reported to have been committed, on the application of any party complaining thereof, or, if he shall think fit, of his own mere motion, to issue a commission under his hand & seal to certain persons for the purpose of making inquiry as to the grounds of such charge or report. It was held that this section gave the Bishop complete discretion to issue or decline to issue such commission. Lord Blackburn further held that the section does not cast any duty on the Bishop by the statute, 'unless perhaps a duty to hear & consider the application.

60. There is nothing in that case which would apply to the case before us. In the first place the words in Article 226 are not the same as in the section which was interpreted by the House of Lords in that ease. Apart from that however, the only point which arose for consideration in that case was whether it was incumbent upon the Bishop to issue a commission or if it was discretionary with him to do so. No question of jurisdiction in the form in which it arises in the present case arose in that case.

61. Parts 2 & 3: Part (2) 'throughout the territories in relation to which it exercises jurisdiction' & Part (3) 'to any person or authority including in appropriate cases any Govt. within those territories' do not have any bearing on the matter in hand.

62. It might possibly be suggested that Part (2) removes the ban which existed on the power of High Courts in Presidency towns to issue high prerogative writs outside the limits of those towns. It is unnecessary for my purposes to furnish a reply to this argument. Madhya Bharat High Court did not before 26-1-1950 possess the power to issue high prerogative writs nor did it exercise any Ordinary Original Jurisdiction. Though I may observe in passing, that if the view of Sir John Beaumont expressed in 'Hamid Hassan's case' that issue of high prerogative writs was only an Incident of the original jurisdiction with which the High Courts of Calcutta, Bombay & Madras were vested under Section 9 of the High Courts Act & their respective Letters Patent is accepted, the hypothetical argument referred to in the opening portion of this para may require careful scrutiny.

63. Part 4: 'For enforcement of rights conferred by Part III or for any other purpose.' As already observed earlier, this is just another way of saying that the powers conferred may be exercised for any legal purpose whatsoever. In other words the powers conferred may be used in exercise of any jurisdiction. I have already given the reasons, which, to my mind, induced the frames of the Constitution to add the words 'for enforcement of rights conferred by Part III' to the words 'for any (other) purpose.'

64. Mr. Samvatsar's next argument in support; of his contention was based on the language of Article 32 & its interpretation by the Supreme Court. He argued that the language of Article 32(2) & of the relevant portion of Article 226(1) was the same. The former had, according to him, been interpreted by the Supreme Court as conferring upon it jurisdiction to take cognisance of every matter which involved a question of enforcement or fundamental lights. He wanted us accordingly to put the same interpretation upon the language of Article 226(1). There can be no doubt that if any construction is put on the language of any article of the Constitution by the Supreme Court & similar language is used in another article, it will, in the absence of strong reasons to the contrary, bo my duty to adopt the construction put by that Court. Apart from Article 141 of the Constitution which makes the Law declared by Supreme Court; binding on all courts in this country, even an 'obiter dictum' by any member of that Court would be entitled to the greatest respect. In the present; case, however, I am clear that the Supreme Court has not declared it to be the law that jurisdiction is, in the sense of the term explained on p. 8 (see Para 12) of this judgment, conferred upon that court by Article 32(2) of the Constitution. Reference was made by the learned counsel to 'Romesh Thappar v. State of Madras' : 1950CriLJ1514 . He invited our attention to the following observations at p. 126 of the report:

That article does not merely confer powers on this court, as Article 226 does on the High Courts, to issue certain writs for the enforcement of the rights conferred by Part III, or for any other purpose as part of its general jurisdiction. In that case it would have been more appropriately placed among Article 131 to 139 which define that jurisdiction. Article 32 provides a 'guaranteed' remedy for the enforcement of those rights, & this remedial right is itself made a fundamental by being included in Part III....

65. I do not think there is anything in these observations which would militate against the view that I am taking. Jurisdiction in the sense explained by me on p. 8, (See Para 12), is conferred upon the Supreme Court by Article 32(1). Article 32(2) details only the powers which that court may make use of in exercise of the jurisdiction conferred by Art, 32(1). That this is so is clear from Clause (3) of that Article which says:

Without prejudice to the powers conferred on the Supreme Court by Clauses (1) & (2), Parliament, may by law empower....

It will be seen that reference is made to Clause (1) also as a clause which confers some power on the Supreme Court. What is that Power? I have already observed earlier that power & jurisdiction are sometimes used as convertible terms. If we turn to Clause (1) of Article 32 we find that, expressly, it purports to do no more than guarantee a right to move the Supreme Court by appropriate proceeding for enforcement of fundamental rights. Then, what is the power conferred by this Clause to which reference is made in Clause (3)? To my mind the Constitution by guaranteeing to the citizen the right to move the Supreme Court under Clause (1), simultaneously, by necessary intendment, conferred upon that Court the jurisdiction, i.e power to take cognisance of all causes or matters relating to enforcement of fundamental rights. To put any other construction on Clause (1) would be to render the reference to the powers conferred by that Clause in Clause (3) upon the Supreme Court meaningless. The language of Article 32(3) is almost conclusive on the question of the meaning to be attributed to Article 32(2) &, inasmuch as, the language of this Clause & that of Clause (1) of Article 226 is virtually the same, it should be considered as conclusive on the interpretation of that article also. Had it been intended that the words in Art, 32(2) should comer on the Supreme Court jurisdiction in the sense of authority to take cognisance of all causes or matters in which a question of enforcement of fundamental rights arises, there would be no point in referring to the powers conferred upon the Supreme Court by Clause (1) - particularly as on the face of it, that clause does not in so many words purport to comer any powers, II is no reply to this argument to say that all that was intended by the words 'without prejudice to the powers conferred on the Supreme Court by Clauses (1) & (2)' was to make it clear that the conferment by Parliament of powers under Article 311(3) on any Court would, not in any way affect the powers of the Supreme Court to hear a motion or application for enforcement of fundamental rights. Were it so a reference to Clause (2) only would be sufficient & any reference to Clause (1) would be unnecessary. Reference to that Clause makes it clear that the power to entertain & determine motions for enforcement of fundamental rights was conferred by Clause (1) & not by Clause (2) as suggested by the earned counsel.

66. Article 32 instead of strengthening Mr. Samvatsar's argument lends support to the view taken by me. According to this view jurisdiction is conferred upon the Supreme Court to take cognisance of all causes or matters relating to enforcement of fundamental rights by Clause (1), & not by Clause (2) which details only the powers that the Court may use in exercise of the jurisdiction conferred by C1. (1). The omission of any clause corresponding to Clause (1) of Article 32 in Art, 226 confirms me in the view that Article 226 deals only with what may be called the authority or capacity of the High Courts & not their jurisdiction in the sense of that expression as explained on p. 8 (see Para 12) of this judgment.

67. Mr. Samvatsar referred to the speeches of some members of the Constituent Assembly - in particular to the speeches of Hon'ble Mrs. Durga Bai & Hon'ble Bakshi Tek Chand - when Article 25 (now 32) & 202 (now 226) of the draft constitution were under discussion (see Constituent Assembly Debates, Vol. VII, No. 23, p. 937 & Vol. VIII, No. 17, p. 695). He argued on the basis of their speeches that the members of the Constituent Assembly intended Article 32(2) & 226(1) to bear the meaning which he attributed to them. As to this argument; [ will content myself only with quoting certain observations of Patanjali Sastri J. in 'A, K. Gopalan v. State of Madras' A.I.R. (37) S. C, 27 para 112 p. 73:

A speech made in the course of the debates on a, bill could at best be indicative of the subjective Intent of the speaker, but it could not reflect the inarticulate mental processes lying behind the majority vote which carried the bill. Nor it is reasonable to assume that the minds of all those legislators were in accord. The Court could only search for the objective intent in the Legislature primarily in the words used in the enactment, aided by such historical material as reports of statutory committees preambles, etc. I attach no importance, therefore, to the speeches made by some of the members of the Constituent Assembly in the course of the debate on Article 15 (now Article 21).

68. Lastly Mr. Samvatsar referred to a number of cases in which Article 226 was interpreted in the sense suggested by him. I will consider all these cases but to begin with I wish to refer to two cases of Madras High Court in which reference was made to my judgment in 'Anant Bhaskar Lagu's case,' A.I.R. (37) 1950 M. B. p. 60 & that decision was dissented from by the learned Judges of that Court. The first is 'Srinivasa Bhat v. State of Madras' : AIR1951Mad70 . The reasoning of the decision in 'Anant Bhaskar Lagu's case' which appears to have been adopted by the Advocate General of Madras in support of this contention is referred to in para, 3 of the judgment by Govinda Menon J. Having stated the argument advanced by the Advocate General the learned judge observed:

The question as regards the meaning of the phrase 'for any other purpose' does not arise in this case for what the petitioners contend is chat their fundamental rights are infringed by the demand of security. We do not think it necessary to embark upon discussion about the meaning of the term 'for any other purpose' & as to whether it is EJUSDEM GENERIS with the previous expressions. In substance, the learned Advocate General contends that though under Article 226 this court may have power to issue the various writs, the exercise of such powers can arise only when the Parliament confers jurisdiction. We do not think that any such interpretation can be put upon the plain meaning of the statute. In our opinion the strained meaning that is sought to be inferred from the plain words of Article 226 cannot be justified. It seems to us, therefore, that this court has both the power & jurisdiction to issue the writs specified in Article 226.

69. There can be no doubt that the view of the learned Judge expressed after considering the argument advanced by the Advocate General, especially as this is in accord with the view of this article taken by nearly all the High Courts in the country, is entitled to great respect. I will however venture to point out that to construe Article 22(5 without taking into consideration the full implication of the phrase 'for any other purpose'' which occurs at the end of Clause (1) of the Article, does not appear to me to be the right approach to the question which was mooted before the Special Bench by the Advocate General. I find further that the point which was referred to 'in para 23 of the report, viz., that jurisdiction upon the Supreme Court to entertain & determine motions for enforcement of fundamental rights is conferred by Article 32(1) & not by Article 32(2) was not considered by his Lordship. I must confess that the point was not discussed in detail in the judgment in 'Anant Bhaskar Lagu's case'. I have accordingly given my reasons for the view that jurisdiction upon the Supreme Court was conferred by Article 32(1) & not by Article 32(2) in detail in the present case. To my mind this point is put beyond doubt by the wording of Article 32(3) in which a clear reference is made to the powers conferred upon the Supreme Court by Clause (1) of the Article.

70. Another learned Judge who was a member-of the Special Bench in the Madras Case (Panchapagesa Sastri J.) deals with the matter 'in para 26 of the report. He expressed his concurrence with the view taken by Govinda Menon J. & while recognising the distinction between jurisdiction & powers, points out that 'jurisdiction may also be implied in certain cases from the conferring of the powers'. He then refers to the words 'throughout the territories in relation to which it exercises jurisdiction' occurring in Article 223(1) & observes that these words would imply that the High Court had powers to issue writs not only within the limits of its original jurisdiction but throughout the territories of Madras State. He is confirmed in the view taken by him from the consideration of the general scheme of the Constitution. Article 226 confers the same powers on every High Court in the country, I venture to doubt if the arguments based on the use of the words 'throughout the territories in relation to which it exercises jurisdiction' can lead to the conclusion inferred from them In relation to High Courts other than those in Presidency Towns & which had no jurisdiction to issue high prerogative writs & did not exercise any Ordinary Original Civil Jurisdiction. The argument based on the scheme of the Constitution is too general to admit of any detailed examination. When I say so I do not mean to suggest that it has no force. Such an argument may even be decisive of me construction that is to be put upon an Article if the language of the Article did not present other difficulties which must be met, before a reference to the scheme of the Constitution can properly be made to determine the true construction of the Article.

71. The third Judge (Basheer Ahmad Sayeed J.) contented himself with expressing his concurrence with Govinda Menon J. on this question (see end of para 48) of the Full Bench judgment.

72. The other decision of the Madras High Court in which the majority judgment in 'Anant Bhaskar Lagu's case' was referred to is 'V. G. Row v. State of Madras' : AIR1951Mad147 . In that case the learned Chief Justice, though he expressed his grave doubt as to the correctness of the decision of this court, based his own decision on the jurisdiction conferred on the Madras High Court by Article 225 & not on any powers conferred by Article 226. There is no reference in either of these cases to Article 35 of the Constitution or to the argument based thereon which will be found in para 24 of the report in 'Anant Bhaskar Lagu's case' A.I.R. (37) 1950 M. B. 60. Besides these two cases Mr. Samvatsar referred to 'Brajnandan Sharma v. State of Bihar,' : AIR1950Pat322 , Jeshingbhai Ishwarlal v. Emperor : AIR1950Bom363 and State of Bombay v. Narottamdas Jethabhai : [1951]2SCR51 . Our attention was further invited to the following passage at p. 84 of the report of the last mentioned case:

It is a fundamental principle of the construction of a constitution that everything necessary for the exercise of powers is included in the grant of power.

73. This does not, to my mind, show that if a power is possessed by a Court of Law it can exercise it in relation to every cause or matter to which the same may be applicable irrespective of whether the court has not authority to take judicial cognizance of that cause or matter. In the case of powers conferred by Article 226, it is not that there is no jurisdiction in exercise of which those powers may be used. The jurisdiction with which our High Court is vested is mentioned in Article 225. If we read the two articles together no difficulty arises. The first (Art. 225) gives the jurisdiction & the second (Art. 226) enumerates the powers that may be made use of in exercise of the jurisdictions conferred by the former & the other article of the Constitution.

74. I do not examine the other cases in detail as in none of them the question which is before us was either raised or considered.

75 Having dealt with the main arguments advanced by the learned counsel for the petitioner I may mention some of the reasons which to my mind constitute strong grounds for putting on Article 226 the construction indicated by me in these pages. To begin with I shall consider what is the jurisdiction which Article 226(1) must be taken to confer upon the High Courts if Mr. Samvatsar's contention is accepted. Obviously it is not the jurisdiction to issue a few high prerogative writs as they are called. If the article be taken to relate to Jurisdiction (in the sense explained on page 8 (see Para 12) of this judgment) then the jurisdiction conferred by it is much wider. It confers powers to issue:

1. Any order (not necessarily a few high prerogative writs, nor only orders in the nature or those or other writs) &

2. for any purpose whatsoever.

The authority thus conferred is subject to no limitation except that relating to territory. Clearly therefore if a Court has power to issue any order, & lor any purpose whatsoever, it should be deemed to have universal jurisdiction. In other words a plea that the High Court does not possess any particular jurisdiction - original, appellate, re-visional or the jurisdiction of a Court of reference, cannot avail. This jurisdiction is unlimited in re;ation either to person, subject-matter or any other respect. Any attempt to place limitations on the jurisdiction thus conferred by Article 226 - if that article confers jurisdiction - will be altogether unwarranted in view of the language used. Either the article does not confer jurisdiction (in the sense explained on page 8 (see Para 12) of this judgment) at all, & is concerned only with the authority or capacity of the High Courts which may be restored to in exercise of jurisdictions conferred by Article 225 & other Articles of the Constitution. Or it confers a universal jurisdiction all embracing in its character, quality & purpose, unrestricted by any limitation except territorial. This is of course subject to other provisions of the Constitution & to the provisions of any Law of the appropriate Legislature made by virtue of the powers conferred on such Legislature by the Constitution.

76. If we now turn to Article 225, the article which immediately precedes Article 226 & which purports to be the main article dealing with the jurisdiction of the High Courts, we find that it lays down not only the jurisdiction which each High Court shall have after 26-1-1950 but also what jurisdiction each High Court 'shall not have'. This, as already pointed out eariler, is clearly implied in the words 'shall be the same' as immediately before the commencement of the Constitution.' To my mind it is in the highest degree unlikely that having clearly laid down by Article 225 the jurisdiction which the High Courts shall have & also the jurisdiction which they shall not have, the Constitution should in the very next article confer upon them a universal jurisdiction all in its character, quality & purpose & subject to no limitation whatsoever except what inheres in the Constitution of each High Court, viz., territorial.

77. If the construction put up by the learned counsel on Article 226(1) be accepted, logically, this should be the main Article dealing with the jurisdiction of the High Courts & the marginal note to Article 225 should more appropriately attach to this article rather than to the later. The reason for this is clear. Article 226(1) according to the view which we are asked to accept, confers a Jurisdiction more comprehensive than that conferred by Article 225. If it was intended by Article 226 to confer upon the High Courts a universal jurisdiction within their respective States, altogether untrammelled in its exercise by any restrictions with respect to causes or matters of which they can take cognisance, the orders they can pass, the persons or authorities against whom the orders issued can be effective or the purpose for which they might; issue orders, for obvious reasons, it would be unnecessary to preserve as has been done by Article 225, the jurisdictions vested in them before the Constitution came into force, except possibly the special jurisdiction conferred upon different High Courts by various special Laws. In any case it would, with Article 226 in view, be meaningless to lay down. that the High Courts shall not have any jurisdiction other than what they had immediately before 26-i-1950. This as already pointed out is necessarily implied in the woras 'shall be the same' which we find in Article 225. So far as possible we should not put on any article of the Constitution a construction which would result in laying its makers open to the charge of doing something which is futile & without purpose. It all that was intended by Article 225 was, than every jurisdiction vested in any High Court should be preserved 10-tact even alter the new Constitution came into force, it could have been done by appropriate words which would not further imply that the High Court shall not exercise any new jurisdiction except such as may be specially provided by other articles. In any case, it is illogical that immediately after Article 225 the Constitution should purport to comer by Article 226 upon every High Court a universal jurisdiction much more comprehensive in all respects than what was ensured for it by Article 225. It is not altogether without significance that in framing Article 226 word 'Jurisdiction' has been scrupulously avoided & the makers of the Constitution contented themselves with the use of the word, 'power', a word which in the Article immediately preceding was used in a connotation altogether different from that of 'jurisdiction'

78. Again, it will be seen that all the rights mentioned in the Part headed 'Fundamental rights' have not been created for the first time by the Constitution. Most of the rights mentioned, in that Part were recognised even before the present Constitution came into force & there were Laws for enforcing them. By placing them in Part III, the Constitution has classified them as belonging to a special category & the Laws that existed for enforcing them have been given special sanctity. Article 35 provides that subject to any modification or adaptation made therein under Article 372, all such Laws shall continue in force until altered or repealed or amended by the Parliament. It further lays down that they shall be given effect to 'notwithstanding anything' in the Constitution. In other words the provisions of the Constitution shall not affect any Law which existed before 26-1-1950 for enforcement of any rights which have been classified as fundamental rights.

79. Among fundamental rights there are several, any infringement of which constitutes an offence. For instance the right mentioned in Article 21 which provides that no person shall be deprived of his life or personal liberty except according to the procedure prescribed by the Law. This is a right which was recognised even before the present, Constitution came into force & any invasion of that right has always been an offence under Chan. XVI of the Indian Penal Code. Naturally there existed Laws for inquiring into & for trial of such offences. The procedural law which applies to inquiries and trials relating to other offences applies also to any offence which is an invasion of the right mentioned in Article 21. Looked at from the side of the right infringed any proceeding, be it an inquiry or a trial relating to such an offence is a proceeding for enforcement of a fundamental right. It follows therefore that the provisions of Criminal Procedure Code pertaining to inquiries & trials as they apply equally to offences which are infringements of fundamental rights & to other offences - are Laws for enforcement of fundamental rights. This is to say that only those provisions of Criminal Procedure Code which are particularly designated therein as relating to inquiries or trials constitute laws for enforcement of fundamental rights, but the whole body of law enacted to bring offenders to justice, thus becomes part of the Laws that existed for enforcement of fundamental rights. These Laws among other matters deal with the constitution of Criminal Courts as also with the powers which the High Courts, may exercise in relation to criminal matters. Thus the whole of this body of Law including the provisions contained, therein relating to the powers which the High Courts may exercise in dealing with Criminal matters constitutes Law for enforcement of fundamental rights. One of the provisions which forms part of such Laws is Section 5, of our Cr. P.C. which runs as follows:

1. All offences under the Indian Penal Code shall be investigated, inquired into, tried & otherwise dealt with according to the provisions hereinafter contained.

2. All offences under any other law shall be investigated, inquired into, tried & otherwise dealt; with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into,, trying or otherwise dealing with such offences.

80. It follows therefore that in relation to the enforcement of some of the fundamental rights when the proceedings are on the criminal side, the High Courts can exercise only such powers as are given to them by the Criminal Procedure Code. In any such matter, even, if we accept Mr. Samvatsar's interpretation of Article 226, the High Courts would in view of Section 5 of Criminal Procedure Code be unable to issue any direction, order or writ which they could not do under some provision of that Code,

81. We may illustrate this by a concrete instance. A person is alleged to be illegally or improperly detained in public or private custody. He makes an application to the High Court under Article 226 of the Constitution. Can the court deal with it except under Section 491. Cr. P. C? The right mentioned in Article 21, as already observed was in existence even before the Constitution came into force. It is not a new right. The Law to enforce that right was contained in the Code of Criminal Procedure. The person so detained could if circumstances justify such a course, make an application for bail. He could if so advised file a complaint against the person detaining him, before a Magistrate. If he was detained in public custody under a charge for some offence, he could ask for trial, so as to obtain his discharge or acquittal or he could approach the High Court under Section 491, Cr. P.C. As a result of Section 5 the violation of the right being an offence under the Criminal law could not be dealt with otherwise than under the provisions of the Code & the High Court if approached in such a matter, cannot to my mind legitimately exercise any power other than those which it has under the Code. In view of Article 35(b) the provisions of the Code applicable in such a case being Law in existence for enforcement of fundamental rights must be given effect 'notwithstanding' in the Constitution.

82. Our attention was invited to the following passage in the report of, In the matter of Venkateswarlu' A.I.R. (38) 1951 Mad. 269, Para 3 of the judgment:

Though the original application was made under Section 491, Cr. P. C we are invited to dispose of it under the powers conferred on this Court under Article 226, Constitution of India as the latter provision has superseded all provisions of the Cr. P.C. which gave power & authority to the High Court to Issue writs in the nature of. habeas corpus.

The learned Judge, as is clear from his order, actually dealt with the matter under Article 226, & it must be taken that he upheld the petitioner's contention that Section 491, Cr. P.C. was superseded by the provisions of the Constitution. Apparently his Lordship's attention was not invited to Article 21 & 35(b) of the Constitution. In view of the last mentioned Article all Laws which existed for use enforcement of a right which is mentioned in Part III of the Constitution remained unaffected & subject to tiny adaptations or modifications made therein Under Article 372 even alter the Constitution came into force. They are not superseded or displaced by the provisions of the Constitution.

83. I will show presently that this is the effect of Article 35(b). That article provides that:

Notwithstanding anything in this Constitution: (b) any Law in force immediately before the commencement of the Constitution in the territory of India with respect to any of the matters referred to in Sub-clause (i) of Clause (a)....shall, subject to the terms thereof & to any adaptations & modifications that may be made therein under Article 372 continue in force, until altered or repealed or amended by the Parliament.

Therefore in view of the opening words of that Article every Law in force immediately before the commencement of the Constitution continues in force even to-day provided it is a Law with respect to any of the matters referred to in Sub-clause (i) of Clause (a) of Article 35. It is further clear from the opening words of the Article that the provisions of the Constitution must yield to any such Law. Special importance is attached to all such Laws & if any provision of the Constitution is inconsistent with any of them, it shall not be given effect to.

84. We may next consider what are the matters that are referred to in Sub-clause (1) of Clause (a) of Article 35. Among other matters referred to there are matters for which Parliament may by Law provide under Article 32(3). Under Article 32(3) Parliament is authorised to provide by Law that any Court other than Supreme Court may exercise all or any of the powers detailed in Article 32(2) for enforcement of fundamental rights. In other words authority is given to Parliament to make provision by Law for enforcement of fundamental rights by Courts other than Supreme Court by issue of directions, writs & orders etc. The enforcement of fundamental rights by courts other than Supreme Court by issue of directions, orders & writs is thus a matter referred to in Sub-clause (i) of Article 35(a). It follows, therefore, that all Laws relating to enforcement of fundamental rights in force in India immediately before 26-1-1950, still continue in force. Not only do they continue in force but the provisions of the Constitution are to have effect subject to those Laws.

85. Reference was also made in course of argument to the observations of Changla C.J. in 'In re Prahalad Krishna' A.I.R. (38) 1951 Bom. 25:

The power of the High Court under Article 226 of the Constitution is no longer confined to issueing writs in the nature of habeas corpus. It has been given the power to issue any direction, any order, or any writ for the purpose of enforcing fundamental rights, & to the extent that the High Court may think it necessary to issue the common Law writ of habeas corpus for the enforcement of fundamental rights it has been given that power notwithstanding the fact that that power may be outside Section 491, Cr. P.C. & may be wider than the power conferred under that section.

If my view of Article 35(b) is correct I venture to think, that the power to issue orders (of any kind) conferred by Article 225 would not entitle the High Court to abrogate a Law which was specially kept in force by an Article in Part III of the Constitution. When a person says that he is illegally astained this implies that some offence under the Indian Penal Code has been committed. We know that all such offences must under Section 5, Cr. P.C. be dealt with in accordance with the provisions of the Code & not otherwise. This is a Law for enforcement ox the fundamental right which is infringed by the illegal & improper detention of the person in question. The High Court, therefore, would not the justified in ignoring' that Law is having recourse to the general powers conferred upon it by Article 225. In this case also the attention of the Court does not appear to have been invited to Article 21 & 30 of the Constitution. it is no reply to this argument that there is no inconsistency between 3. 491, Cr. P.C. & Article 220 of the Constitution. Article 226(1) is inconsistent with Section 5, Cr. P.C.

86. In view of Article 21 & 35(b) the Law relating to habeas corpus (if one may use such an expression) then as embodied in Section 491, Cr. P.C. which superseded the ancient writ of habeas corpus (see C. P. Matthen v. District Magistrate, Trivandrum, I. L. R. (1939) Mad. 744; 'Humid Hassan v Banwarilal' 51 C W N 716 at 722 continues in force 'notwithstanding' in the Constitution. Yet we are asked to hold that under Article 226 the High Courts could issue a writ in the nature of habeas corpus independently of Section 491, Cr. P.C.

87. It is clear, that if we accept Mr. Samvatsar's contention and put upon Article 226 the interpretation suggested by him we necessarily charge the Constitution makers with a glaring inconsistency. In view of Section 5, Cr. P.C. the High Courts cannot use their powers under Article 226 in any Criminal matter. We should not put such a construction upon the article if it is capable of any other reasonable construction without straining the language. I have already pointed cut the construction which should be put upon this article. This is not only a reasonable interpretation but in fact that most natural interpretation of the language used. The artcle, as it purports to fay, confers certain powers upon the High Courts. It deals not with their jurisdiction but with their authority or capacity. It mentions powers which may be exercised by them in all causes or matters whereof they can properly take cognisance.

88. It seems to me that the mention of five high prerogative writs has led to some misconception as to the proper construction to be put on Article 226. In my opinion no significance whatsoever should be attached to the mention of these writs. Even without any such mention in Article 32(2) or 226(1), the Supreme Court & the High Courts would have been competent to issue orders & directions on the lines of those writs. Having been granted a general power to issue writs any of those Courts need not necessarily confine itself to orders or writs which are issued in England. If that is the correct view of the powers conferred the mention of five writs by name can serve only one purpose viz. to ensure that an argument that Court could not issue such writs shall not avail.

89. If we disregard the mention of these writs for a moment & read that article along with, the one which immediately precedes it, much of the difficulty which has arisen would disappear. Jurisdiction to entertain motions in causes or matters relating to enforcement of fundamental rights is conferred on the Supreme Court by Article 32(1) & the subsequent Clause 32 (2) enumerates the powers which the Court can exercise for the purposes of that jurisdiction. Similarly in the case of High Courts, jurisdiction is conferred by Article 325 & the next article details the powers which they can exercise for the purpose of the jurisdiction conferred, a most natural & logical way of dealing with the subject of jurisdiction & powers of the High Courts. But for Article 226 the High Courts would be able to issue only such orders, directions & writs as they could before the Constitution came into force. It was obviously intended to give them enhanced powers. Hence tins article.

90. I am aware that the view taken by me is against that taken by practically every other High Court, in India, & that during tile last 11/2 years that the new Constitution has been in force, thousands of applications have been entertained & disposed of by verious High Courts under Article 226 Naturally therefore 1 have given the matter much anxious consideration. Yet, with ail the respect naturally due to this almost overwhelming mass of authority the construction which has been pus by the courts upon that article appears to me not only illogical but exposes the Constitution makers to the charge of inconsistency. I further apprehend that it is likely to give rise to serious difficulties in future. The universal jurisdiction which, it is said, has been conferred by this aritcle upon every High Court will be exercised differently in each court, & may be as time passes justice in the various States in our country vary somewhat in the same measure as equity was at one time said to do in England.

91. Before bringing this judgment to a close 'I may notice an argument addressed to us on Section 14, General Clauses Act. That section provides that where by any Central Act or Regulation.... any power is conferred then unless a different intention appears that power may be exercised from time to time as occasion arises. This does not mean that conferment of powers upon a court carries with it by necessary implication the authority to take judicial cognisance of every cause or matter in relation to which it is possible to exercise that power.

92. For the reasons given above I am of opinion that this application is not entertainable & should be dismissed with costs.

Shinde, J.

93. These two references have been made by the Division Benches as the learned Judges constituting them doubted the correctness of the majority decision of the Full Bench in Anant Bhaskar Lagu v. State' Cr. Misc. Appln. No. 22 of 1950. The majority view, to which I also subscribed was that Article 226 of the Constitution of India only confers powers on the High Courts, which except under the existing jurisdiction, cannot be exercised until Parliament or other appropriate legislature confers jurisdiction on High Courts under Article 32(2) or under List I or II of Sch. 7 of the Constitution. On reconsidering the question in all its aspects afresh, I am driven to the conclusion that the view taken in 'Anant Bhaskar Lagu v. State' needs to be revised.

94. The question that we have to determine is 'has Article 226 of the Constitution conferred on High Courts only powers as distinguished from jurisdiction?' Mr. Samvats'ar & Mr. Trivedi who appear for the petitioners contend that Article 226 of the Constitution is self contained in so far as it indicates the forum, territorial jurisdiction, remedy to be used, the person against whom it is to be used & in case of fundamental rights even the purpose for which remedy is to be used. They further contend that where power is conferred it must be exercised. The learned Advocate General who still supports the view of the majority in 'Anant Bhaskar v. State' argues that Article 228 refers only to sanctions as does Article 32(2) & that it does not confer any Jurisdiction On High Courts; that Article 226 does not state who can apply nor the mechanism that is to be used. He further argues that writs can be issued only by a court that possesses original jurisdiction & that in so far as this court is not vested with original jurisdiction, it has no power to issue writs.

95. Before launching on the discussion, as to Whether Article 226 has conferred jurisdiction or not, it is necessary to reproduce Article 32 & 226 in extenso as reference will have to be made to them off & or 111 the course of the discussion. Article 32 is as follows:

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

2. The Supreme Court shall have power to issite directions or orders or writs, including wits in the nature of habeas corpus, mandamus, prohibition, quo warranto & certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

3. Without prejudice to the powers conferred on the Supreme Court by Clauses (1) & (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2).

4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.' Article 226 reads thus:

1. Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases any Govt. within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto & certiorari, or any of them, for the enforcement of any of the rights conferred by Part III & for any other purpose.

2. The power conferred on a High Court by Clause (1) shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32.

96. That there is a distinction between powers & jurisdiction can hardly be controverted. In A.I.R. (38) 1951 Mad. 70, Panchapagesa Sastri J. observed that there was a difference between jurisdiction & power (vide 'page 83 para 26). Jurisdiction is defined in Wharton's 'Law Lexicon' as legal authority or extent of powers. In A. I. R, (8) 1921 Cal. 34 several definitions of jurisdiction have been given. One of them is 'the power to hear & determine issues of law & fact.' Power on the other hand is described as the means by which effect is given by courts to their decisions, But this distinction does not appear to be always maintained. In A.I.R. (8) 1921 Cal. 34 one of the definitions of jurisdiction is 'the power or authority which is conferred upon a court by the legislature to hear & determine causes between parties & to carry the judgment into effect.'

97. Assuming however that there is a fine distinction between powers & jurisdiction, what we have to determine is whether Article 226 confers jurisdiction on High Courts or not. It is not seriously contended that jurisdiction must be conferred in specific terms not has any authority been cited in support of such a proposition (sic). Jurisdiction can be inferred from the language of the statute itself. For instance the language of Section 491 Cr. P.C. does not confer jurisdiction on the High Court in express terms: yet the Advocate General concedes that the section does impliedly confer jurisdiction on High Courts. There is no doubt therefore that jurisdiction need not be conferred in express terms.

98. Proceeding further we have to examine it there is anything in the language of Article 226 which is capable of being ocnstrued as conferring jurisdiction impliedly on High Courts. The opening words of Article 226 are particularly significant. The Article opens with the words 'Notwithstanding anything in Article 32' This 'non-obstante' clause clearly indicates that the framers of the Constitution entertained some fear of conflict with Article 32 & consequently to avoid that conflict this 'non-obstance' clause was inserted in the Article. It would be permissible therefore, to examine Article 32 to ascertain what that conflict but for that clause would have been. Article 32 Clause (1) guarantees the right to move the Supreme Court for the enforcement or rights conferred by Part III of the Constitution. Clause (2) of the Article provides powers. Clause (3) confers on Parliament power to empower any court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2). Clause (4) declares that the right guaranteed by the article shall not be impended except under Article 359 of the Constitution. Article 226 Clause (2) provides that the powers conferred on a High Court by Clause (1) shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32. This clause makes it abundantly clear that the power to issue writs etc.. for the enforcement of fundamental rights it conferred both on High Courts & the Supreme Court, Unless powers are conferred on both, the Courts, there could be no question of High Court powers being in derogation of the Supreme Court powers. If therefore the apprehended conflict was confined only to Clause (2) of Article 32, 'non-obstante' clause was unnecessary. Because if the language of Clause (2) of Article 32 gave the impression that the powers enumerated therein are conferred only on the Supreme Court, Clause (2) of Article 226 clearly dispelled that misapprehension. Besides if the apprehended conflict was restricted only to Clause (2) of Article 32, there is no reason why the framers of the Constitution should not have specifically mentioned it. I am, therefore, clearly of the opinion that the apprehended conflict did not relate (at any rate solely) to Clause (2) of Article 32. Clause (4) of Article 32 has no relation to Article 226 at all. So there could be no conflict with that clause. The scope of conflict, therefore is narrowed down to Clause (1) & Clause (3) of Article 32. It is admitted by both the parties that Clause (1) confers Jurisdiction on the Supreme Court. Clause (4) gives Parliament power to empower any court other than the Supreme Court to exercise powers similar to those exercised by the Supreme Court under Clause (2). It is evident, therefore, that both these clauses refer to jurisdictions one which is already conferred & the other which is to be conferred. If the apprehension was in respect of these two clauses, it leaves no doubt whatsoever that the framers of the constitution intended to confer Jurisdiction as well. In 'Bharat Bank v. Employees of Bharat Bank' : (1950)NULLLLJ921SC Mahajan J. observed as follows:

The article commences with the words 'Notwithstanding anything in this chapter'. These words indicate that the intention of the Constitution was to disregard in extraordinary cases the limitations contained in the previous Articles on this court's powers to entertain appeals (Vide 'P. 193' para 20.)

As Article 226 commences with the words 'Notwithstanding anything in Article 32' the intention of the Constitution was to disregard the limitation contained in Article 32 on the powers of the High Court. If we disregard the limitation container) in Clause (3) of Article 32, it is obvious that it is unnecessary for Parliament to confer jurisdiction on High Courts. The same result will follow if we disregard the limitation contained in Clause (1) of Article 33. Clause (1) leads to the inference that the Supreme Court alone can be moved for the enforcement of fundamental rights. If this limitation be disregarded, it is evident that the High Courts also can be moved for the same purpose. Thus the 'non-obstante' clause with which Article 226 opens throws a flood of light on the intention of the constitution. I have no hesitation in holding that Article 226 does confer jurisdiction on High Courts.

99. Assuming for the sake of argument that Article 226 confers only powers & no Jurisdiction, even then there is no bar to the exercise of these powers. Article 367 Clause (1) of the Constitution provides that the General Clauses Act of 1897 is to apply for the interpretation of the Constitution. The Article reads as follows:

1. Unless the context otherwise requires, the General Clause Act, 1897, shall subject to any adaptation & modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India....

The language of Clause (1) of Article 367 is quite clear. Section 14, General Clauses Act, has not been modified under Article 372. Hence Section 14, General Clauses Act, can be applied for the interpretation of the Constitution. This Clause may be usefully reproduced here. It runs as follows:

Where by any Central Act or Regulation made after commencement of this Act any power is conferred then unless a different intention appears, that power may be exercised from time to time as occasion requires.

This section enjoins that power conferred is to be exercised unless a different intention appears. There is nothing in the language of Article 228 to suggest that the intention of the Constitution is that the powers conferred are not to be exercised. In these circumstances I see no reason why powers conferred under Article 226 may not be exercised.

100. An argument has advanced that had the framers of the Constitution intended to confer jurisdiction under Article 226 there would have been a reference to High Courts in Clause (1) of Article 32. This argument presupposed that the rights conferred under 'Art. 226 are analogous to those given under Article 32 in all respects. But it is not so. The right to move the Supreme Court for the enforcement of fundamental rights is guaranteed. In other words no legislature can take it away or abridge it. The framers of the Constitution did not intend to extend the; same guarantee in respect of the right to move the High Court. Clause (4) of Article 32 lays down that the right to move the Supreme Court Khali not be suspended except under Article 359. The Constitution did not intend to attribute the same sanctity to the right of a subject to move the High Court. Omission of reference to High Courts in Clause (1) of Article 32 is due to my mind to these reasons & not to non-conferment of jurisdiction.

101. Another argument addressed to us refers to Article 35(b) of the Constitution. It is contended that if the Constitution had intended to confer such wide jurisdiction on the High Courts, there would have been (no?) need to continue Section 491, Cr. P.C. & Section 45, Specific Relief Act. There is some force in this argument. But continuance of Section 491 Cri. P.C. & Section 45, Specific Relief Act, is not inconsistent with the conferment of jurisdiction under Article 226. Article 35 reads thus:

Notwithstanding anything in this Constitution,

(a) Parliament shall have, & the Legislature of a State shall not have, power to make laws-

(i) with respect to any of the matters which under Clause (3) of article 16, Clause (3) of Article 32, Article 33 & Article 34 may be provided for by law made by Parliament; &

(ii) for prescribing punishment for those acts which are declared to be offence under this Part; & Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in Sub-clause (ii):

(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in Sub-clause (i) of Clause (a) or providing for punishment for any act referred to in Sub-clause (ii) of that clause shall subject to the terms there of & to any adaptations & modifications that may be made therein under Article 372, continue in force until altered or repealed or amended by Parliament.

102. The matter to be provided for by law of Parliament under Clause (3) of Article 32 is to empower courts other than the Supreme Court to exercise powers exercisable by the Supreme Court under Clause (2) of Article 32 for the enforcement of fundamental rights. Clause (b) states that any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in Sub-clause (i) of Clause (a) shall subject to the terms thereof & to any adaptations & modifications that may be made therein under Article 372 continue in force until altered or repealed or amended by Parliament. The law for the enforcement of fundamental rights prevailing in India immediately before the commencement of the Constitution was contained in Section 491, Criminal P.C. & Section 45, Specific Relief Act. Therefore both these sections are to continue in force. This gives rise to a query as to why these sections are continued in force if Article 226 has conferred wider powers & jurisdiction. This question is not easy to answer. Perhaps when Article 35 was considered, it was not contemplated to confer wider powers & jurisdiction on High. Courts; or may be the framers of the Constitution thought it unnecessary to repeal these innocuous sections. These sections are not inconsistent with Article 226. Powers under Article 226 overlap those under Section 491 Cri. P.C. & Section 45, Specific Relief Act. The adaptation of laws order issued on 26-1-1951 has made the following change in the Specific Relief Act. For Section 50 substitute:

50. 'Saving of power of High Court to issue mandamus'. - Nothing in this chapter shall affect the power conferred on a High Court by Clause (1) of Article 226 of the Constitution.

Section 50, Specific Relief Act, ran as follows: 'Neither the High Court nor any Judge thereof shall hereafter issue any writ of mandamus.' If powers under Article 226 were not intended to be exercised, there was no need to repeal Section 50, Specific Relief Act. This repeal of old Section 50, Specific Relief Act, is also an indication of the fact that powers under Article 226 were intended to be exercised.

103. It is no doubt true that the scope of purpose for which powers under Art, 226 can be used is very wide. But we need not fight shy of these powers on that score. Courts exist for the administration of justice. It is to administer justice that the tribunals of the state are established Justice is administered according to the law of the state are established. Justice is administered according to the law of the State. The purpose contemplated by Article 225 is, therefore, no doubt a legal purpose. The expression 'purpose' contemplated by Article 226 cannot include a matter with which a court of law cannot deal. 'Bagaram v. State of Bihar' : AIR1950Pat387 Meredith C.J. made the following observations:

Undoubtedly, therefore, Article 226 contemplates the issue of writs & directions for purposes other than the enforcement of the fundamental rights. At the same time, the words can hardly mean that the High Court can issue writs for any purpose it pleases. I think the correct interpretation is that the words mean for the enforcement of any legal right & the performance of any legal duty To that extent the words must be read 'ejusdem generis' which is the ordinary principle of construction. (vide para 5.)

In : AIR1950Bom363 Chagla C.J., also made similar observations:

It has been suggested by the Advocate General & I agree with him - that the court will not exercise its powers under Article 226 in a matter which it cannot deal with judicially, nor would it take notice of any thing which it cannot take notice of judicially, nor would it interfere with the action of an executive officer unless it is satisfied that the executive officer is under an obligation to do something or to forbear from doing something.

The scope of the purpose in Article 226 is, therefore, limited to legal rights.

104. Even if the scope of purpose is restricted to legal rights, it is still very wide indeed. Resort to this remedy may render other legal remedies superflous. In my opinion that is not sufficient reason to deny redress under Article 226. Remedy under Article 226 is extraordinary & relief should be granted under it only when ordinary legal process cannot afford adequate & prompt relief. High Courts possess powers to frame rules under An. 225. This Court is also vested with powers to frame rules for regulating its procedure under Section 34 High Court of Judicature Act, of 1949. These rules can lay down the conditions under which an application under Article 226 may be entertained,

105. It has been argued by the Advocate General that as this Court has no original jurisdiction, it cannot issue any writs. It is true that this court has no original civil or criminal jurisdiction; But what we have to consider is whether such a jurisdiction is necessary for the issue of writs. In 'Venkataratnam v. Secy. of State A.I.R. (17) 1930 Mad 896 Venkatasubba Rao J. made following observations:

I must guard myself against being understood that the term 'original jurisdiction' in this context connotes that the writ cannot be issued outside the limits of the city. This is not the sense in which that expression is used. The jurisdiction in exercise of which the writ is granted is original as contrasted with appellate. This jurisdiction termed 'Original' is not to be confused with 'original civil jurisdiction' mentioned in Clause 12, Letters Patent. The last mentioned, Jurisdiction can be exercised by its very nature within certain local limits. But the jurisdiction possessed by the High Court in the matter of certiorari is supervisory or corrective & on the English analogy extends over all inferior tribunals amenable to its authority.' (vide p. 902).

In the same case the observations of Wallis, C.J., in 'Chief Commissioner of Income-Tax v. North Anantpur Gold Mines, Ltd. A.I.R. (8) 1921 Mad 524 are quoted, which being pertinent to the present discussion, are reproduced here. He observes:

Now the issuing of the writ of mandamus to secure the performance of a public duty where no adequate remedy existed by action or otherwise was, it seemed to me, clearly an exercise of original jurisdiction. It was a proceeding originating in the court issuing it, & might be directed in ft proper case to any class of public officer, executive or judicial.

He further observes:

Taring regard to these alternatives it must be held that in India this court's power to issue the writs of certiorari falls within its original Jurisdiction as distinguished from its appellate or other jursdiction & it is in this sense that the expression 'original jurisdiction' is used in Section 110, Govt. of India Act.

Odgers in his 'Commentary on the Common Law of England' (1911, page 1020) states as follows:

Even among courts of Record a distinction came to be recognised as soon as the ascendency of the King's court was established over local tribunal Courts 0f record were divided into Superior Inferior courts of Record, the latter being so called because, like courts not of Records, their proceedings are subject to the supervision of the High Court of Justice or some other Superior Court. This supervision is exercised by means of various writs, of which the writs of mandamus, certiorari & prohibition are the most important.

Hammond in his 'Concise Legal History of England' writes thus:

Furthermore, the King's Bench not only exercised its criminal jurisdiction & the Civil jurisdiction & the civil jurisdiction which it took from the court of Common Pleas, but it took to superintending the workings of the inferior courts throughout the country. At one time it even tried to exercise a supervision over the Court of Exchequer, but this proved unsuccessful; but the inferior courts it did very effectively control by means of the following writs, which are often spoken of as the 'prerogative writs' namely, Mandamus, Prohibition, Certiorari & Error.

106. The authorities clearly indicate that the writs are not issued in the exercise of original civil or criminal jurisdiction but in the exercise of supervisory jurisdiction & that the term original jurisdiction is used in the sense that the writs originate in the High Court.

107. It has also been contended by the Advocate General that Article 228 provides no mechanism for the exercise of powers. If we read Article 226 carefully we find that it contains the following:

(a) the forum; (b) the territorial jurisdiction; (c) person or authority against whom orders, directions & writs may be directed; (d) purpose for which the powers may be invoked; (e) nature of remedy to be resorted to. It does not state two things: (1) a person who can apply. (2) the procedure to be followed. The former is impliedly provided for by the Article. If the powers are to be exercised for the enforcement of fundamental rights & for the enforcement of legal rights, it follows that that person can apply whose fundamental right or other legal right is infringed. As regards the latter, as already stated, rules framed for regulating the procedure under Section 34, High Court Act, can lay down the procedure to be followed. The rules, inter alia, may provide for the form of the application, affidavits, time limit, manner of hearing, method of enforcing the order, etc., etc.

108. Lastly I would like to add a few authorities in support of the view I have taken. In A.I.R. (37) 1950 Bom. 3S3 Chagla, C.J., observed as follows:

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 respects of writs which it used to issue before & the territorially 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 enforcement of any of the rights conferred by Part III which deals with fundamental rights. It is not possible to read 'direction, orders or 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' & 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, & 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, & that power of the High Court is saved & safeguarded by providing in Article 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 & 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, & therefore, Article 32(2) confers upon the Supreme Court the power to issue - direction or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto & 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 & orders only for the purpose of enforcement of fundamental rights, the jurisdiction of the High Court is much wider &, as I said before, these orders & 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 & 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; & I have not the slightest doubt that as in the past when prerogative writs were issued by this Ct. with the utmost care & 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 - & I agree with him - that the Court will not exercise its power under Article 226 in a matter which it cannot deal with judicially, nor 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 Article 228 to issue an order against even an executive officer who has issued an administrative 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.

109. In A.I.R. (37) 1950 Pat 322 Meredith, CJ., observed:

I think Article 226, when it says that the High Court shall have power to issue to any person or authority, including in appropriate cases any Government, directions orders or writs, including writs in tile nature of habeas corpus, mandamus, prohibition, 'quo warranto' & certiorari, or any of them, for the enforcement of any of the rights conferred by the Part III & for any other purpose, means more than this & gives us full authority & indeed, a duly to issue necessary directions. If the directions do not conform exactly to one of the writs specifically mentioned that does not matter We are given the widest powers of issuing directions, orders or writs, & in the present case, Besides making a declaration that the order is void, I would issue a direction upon the State Govt prohibiting it & any of its officers from taking any action for the enforcement of the order in Question.

In 0043/1951 : AIR1951Mad269 Govinda Menon J. observed.:

. 226 of the Constitution provided us with all the powers which a High Court of Justice in England has under the Common Law for the issuing of prerogative writs. We have the power to issue, in appropriate cases, even to the Govt. directions, orders or writs including writs in the nature of habeas corpus, etc., for the enforcement of any of the rights conferred by Part III, namely, fundamental rights & for any other purpose. In such circumstances, if we are satisfied that the arrest & detention of the petitioner herein contravened the rights, privileges or immunities which he enjoyed as a member of the Madras Legislature, we would very unhesitatingly issue the writ & direct his release as had been done by the English Court.

110. In : AIR1951Bom25 Chagla, C.J., made the following observations:

power of the High Court under Art 226 is no longer confined to issuing writs in the nature of habeas corpus. It has been given the power to issue any direction, any order, or any writ for the purpose of enforcing fundamental rights, & it seems to us that Mr. Sule is right to the extent that the High Court may think it necessary to issue the common law writ of habeas corpus for the enforcement of fundamental rights it has been given that power notwithstanding the fact that that power may be outside Section 491 & may be wider than the power conferred under that section.

Indian Sugar Mills Association v. Govt. Uttar Pradesh Labour Department : AIR1951All1 Malik C.J., observed:

feel that the time has come when we may point out that Article 226 of the Constitution was not intended to provide an alternative method of redress to the normal process of a decision in an action brought in the usual Courts established by law. The powers under this article should he sparingly used & only in those clear cases where the rights of a person have been seriously infringed & he has no other adequate & specific remedy available to him.

111.For these reasons I am clearly of the opinion that Article 226 of the Constitution has conferred both powers & jurisdiction on the High Court.

Dixit, J

112. The question with which this Bench is now dealing is, whether the decision of a Pull Bench of this Court in 'Anant Bhaskar v. State A.I.R. (37) 1950 M.B. 60 that this High Court has no jurisdiction to issue directions, orders or writs under Article 226(1) of the Constitution of India, except when & in so far as jurisdiction on that behalf is granted by Statute, is correct. The question arises out of two petitions for the issue inter alia of writs of certiorari to remove in one case the proceedings of the Tehsildar Neemuch requisitioning a Dharmashala for the purpose of quashing such proceedings & in the other to bring up & quash the proceedings of the Regional Transport Authority, Southern Region appointed under Motor Vehicles Act. Wherein according to the petitioner Dayabhai Patel the Regional Transport Authority did not consider his applications for permits to ply buses on certain routes. These are the first petitions under Article 226 since the decision of the Pull Beach in A.I.R. (37) 1950 M.B. GO, which have come up for hearing before this Court. The learned Judges, before whom the petitions were first set down for hearing, felt some doubt about the correctness of the decision in 'Anant Bhaskar v. State. They, therefore, referred the question for the opinion of a Full Bench of this Court.

113. In 'Anant Bhaskar v. State A.I.R. (37) 1930 M.B. GO, my Lord the Chief Justice & Shinde J. (Mehta J., dissenting) held that the view expressed by the Division Bench in 'Harendranath Sharma v, State of Madhya Bharat A.I.R. (37) 1950 M.B. 46 that Article 226 conferred on the High Court jurisdiction & power to issue directions, orders or writs not only for the enforcement of any of the rights dealt with in Part III of the Constitution but also for any other purpose was not correct. My learned brother Mehta J., & I were parties to the decision in the 'case of Harendranath Sharma'. After the much fuller discussion in 'the case of Anant Bhaskar' Mehta J., did not resile from his earlier opinion. In the 'case of Harendranath Sharma the objections as to the jurisdiction of this court to issue under Article 226 directions, orders or writs were not raised in the form in which they were taken before the Full Bench in 'Anant Bhaskar v. State'. In the present case I have had the benefit of elaborate & able arguments of the learned Advocate General & Counsel for the petitioners on these points; but I regret I am unable to come to the same conclusion at which the majority of the Pull Bench arrived in 'Anant Bhaskar v. State.

114. I adhere to the views I expressed in the 'case of Harendranath Sharma'. I do not think it necessary to go over the same grounds again. There are, however, a few observations which in view of the contrary opinion expressed in 'Anant Bhaskar v. State' I consider it desirable to make.

115. The learned Advocate General has addressed the same arguments which he did to the Court in 'Anant Bhaskar v. State' & which were accepted in that case. The arguments have been summarised in the judgment delivered by the learned Chief Justice in the 'case of Anant Bhaskar. I do not propose to repeat them here. The decision of the majority of the Pull Bench in 'Anant Bhaskar v. State' proceeds on the reasoning that there is a difference between the words 'power' & 'jurisdiction'; that a Court cannot exercise the powers conferred on it unless it has jurisdiction to exercise the powers; that Article 226 merely confers certain powers on High Courts which they may use in the exercise of the jurisdiction vested in them by virtue of Article 225 or any Other provisions of the Constitution & does not confer any independent jurisdiction to exercise the powers, that for the exercise of the powers conferred under Article 223 the High Court must be invested with original jurisdiction for that purpose; & that as under Art, 225 the jurisdiction of this Court is the same as existed immediately before the commencement of the Constitution and as this Court had immediately before 26-1-1950 no ordinary original jurisdiction, the powers conferred by Article 226 must remain ineffective so long as appropriate Legislature does not invest this Court with the jurisdiction to exercise these powers.

116. With very great deference to the learned Judges, 1 do not find myself in agreement with this view. It is true that there is a distinction between 'jurisdiction' & 'power' in that jurisdiction has reference to the exercise of power & the extent & limits within which such power is exercisable lor the administration of justice. But Jurisdiction is defined in terms of power. It is the power of a Court to hear & determine a cause, to adjudicate & to exercise any Judicial power in relation to it & to award the remedies provided by law upon a state of facts proved or admitted & presented to the Court in a formal way for its decision. The concept of jurisdiction embraces the power to grant the remedies provided by law. The learned Chief Justice has observed in 'Anant Bhaskar v. State' that 'jurisdiction' is an authority conferred upon a tribunal to determine a matter; Powers are the means by which effect is given by Courts to their determination; I do not think that in Article 226 the word 'Power' ought to be read in the narrow sense indicated by the learned Chief Justice for the simple reason that it is difficult to conceive that the framers of the Constitution while leaving the important matter of investing the High Courts with jurisdiction to issue directions, orders or writs for the protection of the rights of the individuals & to check the abuse of powers, to the Legislature, thought it of vital importance to provide in the Constitution itself for the means & processes whereby a jurisdiction not yet in existence but which might be conferred & which might be subsequently altered or withdrawn by the Legislature may be effectively exercised. In my judgment, Article 226 placed as it is among Article 225 to 228 which define the jurisdiction of the High Courts, & indicating the purposes for which & the territorial limits within which directions, orders or writs may be issued, itself confers jurisdiction on every High Court to entertain & hear any matter as an original Court in which relief is prayed for under Article 226, & to determine whether to exercise or refuse to exercise in relation to the matter the discretionary power conferred by Article 226, I arrived at the same conclusion in 'Harendranath Sharma v. State A.I.R (37) 1950 M.B. 46, after considering the meaning & effect of the 'non-obstante' opening words of Article 220(1) namely 'notwithstanding anything in Article '32' & of tho words 'shall have power '

117. On the question of the jurisdiction o the High Court under Article 226 to issue directions, orders or writs the observations of the Supreme Court in 'Romesh Thapper v. State of Madras : 1950CriLJ1514 must be borne in mind. In that case the petitioner presented an application under Article 32 to the Supreme Court challenging the validity of Section 9 (1-A) of Madras Maintenance of Public Order Act, 1949 under which an order had been against the petitioner by the Govt. of Madras, as being void under Article 13(1) of the Constitution. The Advocate General of Madras objected before the Supreme Court as to propriety of the petitioner resorting to the Supreme Court directly for relief in the first instance. He contended that as a matter of ordinary procedure the petitioner should have first resorted to the High Court of Madras which under Article 226 of the Constitution had concurrent jurisdiction to deal with the matter. In overruling the objection their Lordships said:

Art. 32 docs not merely confer power on this Court, as Article 226 does on the High Courts, to issue certain writs for the enforcement of the rights conferred by Part III, or for any other purpose, as part of its general jurisdiction. In that case it would have been appropriately placed among Article 131 to 139 which define that jurisdiction. Article 32 provides a 'guaranteed' remedy for the enforcement of those rights, & this remedial right is itself made a fundamental right by being included In Part III. This Court is thus constituted the protector & guarantor of fundamental rights, & it cannot consistently with the responsibility so laid upon it refuse to entertain applications seeking protection against infringements of such rights.

118. It seems to me that it follows from these observations that under the Constitution both the Supreme Court & the High Courts have the power to issue directions, orders or writs as superior Courts of general jurisdiction. The words 'shall have power' in Clause (2) of Article 32 confer upon the Supreme Court the power to issue directions, orders or writs as part of its general jurisdiction, Clause (1) of Article 226 similarly confers powers on the High Courts. I take the expression 'general jurisdiction' in the pronouncement of the Supreme Court as meaning the power which a Superior Court of Justice & Record has to adjudicate & to exercise judicial power in respect of all persons & all matters except, those that are specifically excluded that are within the cognizance of other Courts having special jurisdiction to exercise the power. It must be noted that the jurisdiction of the Supreme Court to issue directions orders or writs is not restricted to matters which it can deal with in its original civil jurisdiction under Article 131 It is independent of that original jurisdiction. My Lord the Chief Justice said in 'Anant Bhaskar v. State'

If it were contended that the constitutional remedy for which a person can approach the Supreme Court under Article 32(1) should without, any further action by Parliament in that behalf is also available in the High Courts we would expect a reference to High Courts also in Clause (1) of Article 32.

The passage quoted above from the judgment of the Supreme Court in A.I.R. (37) 1950 S.C. 124 clearly shows that the jurisdiction to issue directions, orders or writs has been conferred on the Supreme Court by Clause (2) & not by Clause (1) of Article 32, which only guarantees the fundamental riant of invoking the jurisdiction conferred on the Supreme Court by Clause (2). I do not, therefore, think that it could well be contended that as there is no clause in Article 226 corresponding to Clause (1) of Article 32, & no reference to High Courts in Clause (1) of Article 32 or that as this court has no original civil or criminal jurisdiction. Article 226 cannot be interpreted as conferring jurisdiction on this court to exercise the powers conferred by the Article. The grant of jurisdiction is included by implication in the grant of the power to this court to issue directions, orders or writs. To emphasise the point that Article 226 does not confer on the High Courts jurisdiction to exercise powers conferred by the Article, it is said in the majority decision in 'Anant Bhaskar v. State' that:

The very generality of the powers & the unlimited scope of the purposes for which they might be used, necessitates that there should be found some standard by reference to which the exercise of those powers could be regulated.' & that this standard must be found in an existing law continued in force or in a statute passed by the appropriate Legislature. To my mind, the general language used in Article 226 is in accord with the intention to confer supervisory or corrective jurisdiction on the High Courts. As I observed in 'Harendranath Sharma v. State' A.I.R. (37) 1950 M.B. 46 the object of Article 226 in giving to the High Courts discretionary power to issue directions orders or writs is to secure the protection of the rights of the public & to ampliate justice & redress grievances in any matter which the ordinary course of law is too defective to reach. It is clearly impossible to specify in any statute matters involving infringement of fundamental rights conferred by Part III of the Constitution or of rights though not fundamental under the Constitution yet are equally important, or matters involving excess & abuse or powers. But it is not difficult to ascertain whether a matter is one in which the discretionary power under Article 226 should be exercised. The power given to the High Courts under Article 226 is no doubt a large one but it has to be exercised in accordance with well established principles. The principles on which the English Courts issue writs in the exercise of their supervisory or corrective jurisdiction are not to be found in the text of any statute. They have gradually been evolved by the Courts in the course of a long series of cases. Similarly, the High Courts will have to evolve the limitations upon its powers under Article 226. We are familiar with the practice of the Courts putting of their own motion limitations upon the discretionary powers conferred on them. I must here pause & refer to the disapproval expressed in the majority judgment in 'Anant Bhaskar v. State' about my observations m the 'case of Harendranath Sharma' that any other purpose must be construed to refer to all purposes for which at English Common Law the High prerogative writs are issued to wit for the protection of the rights of the individuals, to check excess & abuse of powers. The learned Chief Justice read the remarks as implying that the purposes for which directions, orders or writs could be issued under Article 226 are limited to the purposes for which the five English writs referred to in Article 226 are issued in England, I do not think that there is anything in the passage cited by my Lord the Chief justice in para 30 of his judgment in 'Anant Bhaskar v. State' to suggest the inference drawn by him. On the other hand if due weight is given to whole of the passage, it is apparent that I emphasised in general terms the fact that it is for the protection of the rights of the individuals & to check excess & abuse of powers that directions, orders or writs can be issued under Article 226. With the greatest respect to the learned Chief Justice I have not in that passage particularized the remedies, writs or processes whereby this object is achieved in England or should be achieved here under Article 226. Nor have I suggested therein that the wide powers conferred by the general words in Article 226, namely 'directions, orders or writs' are restricted by the words, 'including writs in the nature of habeas corpus, mandamus, prohibition, 'quo warranto' & certiorari' which follow the general words.

119. Two further considerations have been taken into account in 'case of Anant Bhaskar in putting the forced & narrow construction on Art 226. Firstly, it is said that if Clause (3) of Article 32 is not taken as contemplating legislation to empower the High Courts to exercise the powers conferred by Article 226, there would be no Court to be empowered under Article 32(3) & there would be no field for the Parliament or any State Legislature to legislate under Entry 95 of List I, Entry 65 of list II & Entry 46 of List III of Sch. 7. It is observed by the learned Chief Justice that the words 'any other court' in Article 32(3) do not exclude the High Courts from their purview for:

it is in the highest degree unlikely that the Constitution should confer upon Parliament authority to empower any of the Courts not yet in existence but which might be created under Article 366(14)(b) or Article 247 but not the High Courts.

The short answer to this argument is that if as I think the High Courts are already empowered under Article 226 to exercise the powers conferred by the Article, there is nothing odd in provision being made lor empowering the subordinate Courts, or Courts which may be declared to be High Courts by Parliament by law for all or any of the purposes of the Constitution, or Union courts that may be established under Article 247, to exercise all our any of th powers exercisable by the (Supreme Court under Clause (2). It cannot, therefore ,be said that if Article 226 is interpreted as empowering Che High Courts to exercise the powers conferred by that Article, then Clause (3) of Article 32 is rendered otiose. As to the entries in the list of Scheudle 7, 1 would repeat what I said in 'Harendranath Sharma's case' namely, that the meaning & the scope of the Articles in the Constitution are not controlled by the various items in the lists, & that the power of the Parliament & the State Legislatures to legislate under the lists is subject to the provisions of the Articles of the Constitution. I would only add that scope of legislation under these entries has been recently explained by the Supreme Court in 'State of Bombay v. Narottamdas' : [1951]2SCR51 . In that case their Lordships observed with reference to similar entries occurring in the lists of Sch. 7 of Govt. of India Act, 1935 that

these items confer on the respective Legislatures power to legislate when dealing with particular subjects within their exclusive legislative fields to make laws in respect to the jurisdiction & powers of court that will be competent to hear causes relating to those subjects; in other words, this is a power of creating special jurisdiction only.

The lists of Sch. 7 specify the varied & large number of matters in respect of which special jurisdiction may be created by Parliament or the State Legislatures. It will thus be seen that there is no jurisdiction for the apprehension that if Article 226 is taken to confer jurisdiction on the High Courts to exercise the powers conferred by that Article 'there is hardly any room left for the Parliament or any State Legislature to make any law with regard to the jurisdiction of the High Court.'

120. The other argument contained in the majority judgment in the case of 'Anant Bhaskar v. State is that as under Article 35(b) any law in force immediately before the commencement of the Constitution with respect to any of the matters referred to in Clause (3) of Article 32 continues in force even after 26-1-1950, Section 491 Cr. P.C. & Section 45 Specific Relief Act, must be deemed to have been kept in force by this special provision; & that therefore, a conflict would arise between Article 35(b) & Article 226 if the latter be interpreted as conferring jurisdiction on the High Courts to exercise the powers conferred by that Article, in my opinion no such conflict arises. For, if, as I think Article 226 empowers the High Courts to issue directions, orders or writs then the words 'any other court', in Article 32(3) must be held to exclude the 'High Courts' & any law kept in force under Article 35(b) read with Clause (3) of Article 32 would be one with respect to the empowerment of courts other than the High Courts. In this view even if Section 491 Cr. P.C. & Section 45, Specific Relief Act, otherwise continue in force, they cannot curtail the power conferred on the High Courts by Article 226. This view finds some support in the decision of the Bombay High Court 'in Re Prahlad Krishna Kurve, : AIR1951Bom25 & of the Madras High Court in 0043/1951 : AIR1951Mad269 . The learned Judges of the Madras High Court held that Article 226 has superseded all provisions of the Criminal Procedure Code which gave power & authority to the High. Courts to issue writs in the nature of Habeas Corpus. In the Bombay case the learned Chief Justice said:

The power of the High Court under Article 226 of the Constitution is no longer confined to issuing writs in the nature of habeas Corpus----To the extent that the High Court may think it necessary to issue the common law writ of habeas corpus for the enforcement of fundamental rights it has been given that power notwithstanding the fact that, that power may be outside Section 491 Cr. P.C. & may be wider than the power conferred under that section.

120a. Lastly as bearing upon this question X desire to refer to two cases. The first is 'Srinivasa v. State of Madras', : AIR1951Mad70 . In that case the Advocate General of Madras relying on the majority decision in the ease of 'Anant Bhaskar v. State' contended that the jurisdiction of the Madras High Court was limited to the City of Madras & to certain specified writs it could issue prior to 26-1-1950 & that the Sigh Court could not exercise the power conferred by Article 226 until Parliament by law invests the Court with that Jurisdiction under the provisions of Article 32(3). The learned Judges of the Madras High Court did not accept the contention. They preferred to follow the reasoning & the conclusions contained in the dissenting judgment of my brother Mehta -J. in the 'case of Anant Bhaskar'. Govind Menon J., said that the distinction between 'jurisdiction' & 'power' did not exist & that Article 32(3) made a provision for conferring jurisdiction on courts cr,her than the High Court Panchapagesa Sastri J. observed:

while it is true that there is a distinction between 'jurisdiction' & 'power' jurisdiction may also be implied in certain cases from the conferring of powers. Article 226 confers the powers on the High Courts throughout the territories in relation to which it exercises jurisdiction.

This case lends support to the view I have formed The other case in ' Jeshingbhai v. Emperor' : AIR1950Bom363 . In this case the validity of an administrative order made by a District Magistrate under Bombay Public Security Measures Act was challenged & the question arose whether the Bombay High Court had jurisdiction under Art, 226 to issue an order against an executive officer who had issued an administrative order, in order to safeguard the fundamental rights or the citizen. Counsel for the petitioner in that case argued that what ever might have been the position prior to 26-1-1950 & whatever might have been the jurisdiction of the Bombay High Court prior to that date, after the passing of the Constitution, the jurisdiction of the High Court had been considerably enlarged. Chagla C.J., examined the provisions of Article 226 & came to the conclusion that though prior to 26-1-1950 the court's Jurisdiction to issue high prerogative writs was restricted territorially to the ordinary original civil Jurisdiction of the Court & to certain specified writs the jurisdiction is not now so limited but extends to the issue of directions, orders or writs, for the purpose of enforcement of the rights conferred by Part III & for any other purpose. It is true that the decision of the Bombay High Court does not deal with the precise question raised in the case of 'Anant Bhaskar v. State'. The reference in the Bombay High Court's decision to its jurisdiction prior to 26-1-1950 blurs to a certain extent the issue whether prior to the commencement of the Constitution it did or it did not possess limited jurisdiction to issue certain high prerogative writs. I venture to think in considering the question whether Article 226 confers jurisdiction on the High Courts to issue directions, orders or writs for the purposes mentioned in the Articles, the question whether prior to 26-1-1950 the High Court possessed a limited jurisdiction to issue high prerogative writs is immaterial. If it is held that Art 226 does not by itself confer jurisdiction on the High Courts, then on the reasoning of the majority judgment in 'Anant Bhaskar v. State' even the High Courts of Bombay, Madras & Calcutta can have today no jurisdiction to exercise the wide powers conferred by Arc. 226.

121. For these reasons, I think, that the majority decision in 'Anant Bhaskar v. State' is not correct. In my opinion, this Court has as an original Court both the power and jurisdiction to issue directions, 'orders or writs under Article 226.

Mehta, J.

122. I have nothing to add to what 1 have already stated in my judgment in the 'case of Anant Bhaskar Lagu' A.I.R. (37) 1950 M B p, 60 reference p. 67. I do not wish to traverse over the same grounds again I adhere to the view which I have taken that Article 226 of the Constitution confers power & jurisdiction on the High Courts to issue writs, orders & directions.

123. I am fortified in the view which I have taken by the decision of the Special Bench of the Madras High Court reported in 'A.I.R. (33) 1951 Mad p. 70.' Shastri J, has observed at page 83 that jurisdiction may also be implied in certain cases from conferring of powers. Article 226 confers the power on the High Courts throughout the territories in relation to which it exercises jurisdiction. His Lordship Mahajan J. of the Supreme Court has observed in the case of 'State of Bombay v. Narotamdas' at p. 86 : [1951]2SCR51 that it is a fundamental principle of the construction of a constitution that everything necessary for the exercise of powers is included in the grant of power. 'The rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of the superior Court but that which specially appears to be so.'

124. I, therefore, adhere to my previous decisions & hold that this Court has got power & jurisdiction to issue writs, orders & directions us mentioned in Article 226 of the Constitution.

Chaturvedi, J.

125. These two petitions have been referred to the Pull Bench for determining the question whether a prerogative writ can be issued by this Court. Petition No. 18 of 1950 is on behalf of the owner of a Dharmashala in Neemuch Cantonment for the issue of a writ of certiorari to bring into the Court files No. 25 & 26 of Tehsil Neemuch & the order of the Tehsildar dated 7-1-1949 for the purpose of quashing such proceedings along with the order of the Tehsildar by which he commandeered the said Dharmashala in Neemuch cantonment under Section 10 of Accommodation Control Ordinance of the former Gwalior State. It was contended in the application that the said Ordinance applied only to those buildings, which fetched rents & not to Dharmashalas.

126. The next petition No. 2 of 1951, is by a resident of Barwani, who had been running a Bus Service in the former Barwani State & had, according to the petition, entered into an agreement for five years with the Ruler of Barwani on 3041-1947, for plying a Bus Service under certain conditions. Barwani State merged in Madhya Bharat on 30-G-1948 & the Madhya Bharat State adopted Motor Vehicles Act on 1-10-1949; the Govt. then appointed various authorities & officers including the Regional Transport Officers, Southern Region, Indore, under the Act & introduced permit system for plying Bus Services. Applications were invited & the petitioner submitted his application buff it was not included in the Gazette publication, & according to the petitioner, the first respondent so operated the said Buses that he contravened the provisions of the Motor Vehicles Act. In brief, the petitioner contends that, his agreement & his application have not at all been taken into consideration. He, therefore, prays for a writ, of Certiorari for quashing the said proceedings of the Transport Authority, for a writ of Mandamus to compel the authority to consider & dispose of his application; &, for a writ of prohibition against mem prohibiting them for doing any act likely to prejudice the legal rights of the petitioner la respect of the above matters & for issuing such direction or orders as may be required for the enforcement of the legal rights of the petitioner.

127. It may be mentioned here that both the petitions are not for the endorsement of fundamental rights, but only for the enforcement of ordinary legal rights.

128. in 'Harendra Math Sharma's case' A.I.R.(37) 1950 M. B. 46 a Division Bench of this Court had held that this Court possessed the power of issuing writs under Article 228 of the Constitution. The learned Advocate Genera], however, contended that, as the law stands to-day, an application under Article 225 could not be entertained by this Court. The question thus came up for consideration before a Pull Bench of three Judges of this Court in 'Anant Bhaskar v. State' A.I.R. (37) 1950 MB 60. The question therein was decided in accordance with the opinion of the majority Judges who accepted the contention of the learned Advocate General. The Madras High Court : AIR1951Mad70 has dissented from the above ruling & other High Courts appear to have assumed that they have, under Article 226, power & jurisdiction to issue prerogative writs. It is under these circumstances that the question has again come up for consideration before a Full Bench of five Judges of this Court. The question that has now been referred to this Full Bench is: Whether the decision of the Full Bench of this Court in Anant Bhaskar Lagu v. State' A.I.R. (37) 1950 MB 60 correctly lays down the law?

129. The above decision held (Mehta J. dissenting) that Article 226 of the Constitution does not provide for any remedy which apart from the existing law would be available to a person for enforcement of any of the rights dealt with in Part III of the Constitution &, therefore, the High Court cannot entertain an application under Article 226 for the issue of a direction in the nature of a habeas corpus apart from the provision of Section 491 Cr. P.C. It was emphasised that since Art 225 sustains & maintains the jurisdiction which this Court had on 25-1-1950 & since on that date this Court had no jurisdiction to issue a prerogative writ, this Court has no authority to issue any writ under Article 226 of the Constitution. A distinction was sought to be made between the two alleged concepts of 'Power & jurisdiction''. It was stated that 'Jurisdiction' is an authority conferred upon a tribunal to determine a matter & 'power' is the means by which effect is given by Courts to their determination. It was held that under Article 226 this Court has power to issue the various writs but that the exercise of such powers can arise only when the Parliament confers jurisdiction under Clause (3) of Article 32 of the Constitution.

130. In 'Srinivas Bhat v. State of Madras' : AIR1951Mad70 the Madras High Court took just the opposite view viz: that the High Court had both the power & jurisdiction to issue the writs specified in Article 226. With utmost respect, I may mention that as regards this particular point the judgment is very brief & the reasoning not being clear much help cannot be derived from this ruling. The same point was again raised before a Full Bench of Madras High Court in 'V. G. Row v. The State of Madras' : AIR1951Mad147 . Grave doubts were therein expressed as to the correctness of the Full Bench ruling of this Court in 'Anant Bhaskar v. State' out it was deemed unnecessary to canvass the correctness of the decision as the judgment proceeded on the footing that the Madras High Court had, at the commencement of the Constitution, the jurisdiction & power to issue a writ of certiorari within the limits of the original jurisdiction at least &? that this jurisdiction, continued under Article 225, would enable the Madras High Court to issue a prerogative writ. Though the point was not raised directly in 'Jesinghbhai v. Emperor' : AIR1950Bom363 & in other cases the Bombay High Court also proceeded on the basis that under Article 226 the orders & writs can be issued 'for other purposes which purposes wen; availed of by the High Court prior to the enactment of the Constitution.' These rulings do not help to solve the question whether a High Court which prior to the enactment of the Constitution, had no power to issue prerogative writs can now issue any writ or order or direction in the nature of writs specified in Article 226. I, therefore, thins; it proper to proceed to consider the various provisions of the Constitution independently of the recent rulings of the High Courts in India.

131. The first thing that strikes me is that Article 225 (except the proviso which is not just now material for our purposes & which will be considered later on) is nothing more than Section 223 Govt. of India Act, 1935, lifted from that Act & placed in the Constitution. Section 223 had in its own turn summarised the provisions of Section 106(1), 108 & 112, Govt. of India Act, 1915, coupled with the Devolution Rules of 1920 Sch. 1 Part II para 17 provided for by Section 45A, Govt. of India Act of 1919.

132. At the commencement of every constitution it has been the policy to lay down that the powers & jurisdiction of the High Courts, which they possessed at the commencement of the Constitution would be continued subject to certain conditions. Thereafter every Constitution proceeded to give new powers & confer new jurisdiction on the High Courts. If Article 225 had laid down the limits of power & jurisdiction, where was the need for enacting Article 226 & 227? I am quite clear in my mind that these Articles are not mere verbal surplusages but confer new jurisdiction upon the High Courts. In my opinion Article 225 has received undue importance in 'Anant Bhaskar v. State' & the fact of its being a matter of historical survival has entirely been overlooked. To appreciate its significance in the Constitution it seems necessary to refer to the previous history of legislation in India & to Section 9, High Courts Acts of 1361, which dealt with jurisdiction & powers of High Courts. Section 9 stated that the powers of the High Court were 'subject & without prejudice to the legislative powers of the Governor-General of India in Council.'

133. The system was continued by the Govt. of India Act, 1915 that legislation affecting the jurisdiction & powers of the High Courts was to be made by the Governor-General in Legislative Council & there was no provision for the legislation by local Legislature. Section 106, Govt. of India Act, 1915 provided for the powers & jurisdictions of High Courts. It corresponded to Section 9 of the Act of 1361. Section 108 then empowered High Courts to make rules for Bench & single Judge jurisdiction. Section 112 provided the law to be administered by High Courts of original jurisdiction. Section 131(3) provided:

Nothing in this Act shall affect the power of the Governor-General in Legislative Council to repeal or alter any of the provisions mentioned in Sch.5 to this Act, or the validity of any previous exercise of this power.

In Sch. 5 were mentioned Ss. 106, 108 to 112 & others. This system could not have been continued under a federal form of Govt. as envisaged under the Govt. of India Act, 1935, the main feature of which was the distribution of legislative powers, in this connection I may usefully refer to an extract from Para 335 of the Joint Parliamentary Report which reads as follows:

As regards the juridical jurisdiction of the High Courts, in so far as this depends upon provisions of Indian enactment it will henceforth be determined by enactments of that Legislature which is competent to regulate the subject In respect of which questions of High Court's jurisdiction arise; that is to say, it will be for the Federal Legislature alone to determine the jurisdiction of the High Court in respect of any matter upon which, that Legislature has exclusive power to legislate, for the Provincial Legislature to determine the jurisdiction of the High Court in respect of any exclusive provincial subject, & and for both to determine (subject to principles governing legislation in the concurrent field) in respect of any matter on which both legislatures are competent to legislate. It will thus be seen that the High Courts, under our proposals, will be institutions which will not accurately be described as either federalised or provincialised.

134. With this background it will not be difficult to understand the importance of S 223, Govt. of India Act, 1935 (26 Geo. v. Ch. 2) which summarised the provisions of Ss. 108(1); 108 & 112, Govt. of India Act, 1915 & ran as follows:

Subject to the provisions of this part of this Act, to the provisions of any order in Council made under this or any other Act & to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that legislature by this Act, the jurisdiction of & the law administered in, any existing High Court, & the respective powers of the judges thereof In relation to the administration of justice in Court including any power to make rules of Court & to regulate the sittings of the Court & of members thereof sitting alone or in division Courts shall be the same as immediately before the commencement of Part III of this Act.

The section only emphasised that the existing jurisdiction of the High Courts would be continued subject to the provisions to be made by the British Parliament, Federal Legislature or the local Legislatures.

135. Article 226 of the Constitution, except with Blight verbal changes, repeats, as I stated above, the above provision & for the sake of comparison (except the proviso which is not necessary for our purposes) may be quoted here. It runs as follows:

Subject to the provisions of this Constitution & to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, & the law administered in, any existing High Court & the respective power of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court & to regulate the sitting of the court & of members thereof sitting alone, or in Division Courts, shall be the same as immediately before the commencement of this Constitution.

It will be apparent that it is the same provision with slight changes that had been enacted again & again in 18S1, 1915, 1919 & 1935; & at first sight seems to be only a Constitution, formality.

136. There is no warrant for the proposition that Article 225 governs Article 226, 227 & 228. Neither 6. 223, Govt. of India Act, 1935 was taken to have governed Ss, 224 & 225 of that Act. In my opinion, Article 225 stands alone. There is not a single word in it which may tend to indicate that the Constitution contemplated that the powers given to the High Court under Ss. 226 to 228 are to be used by them only in exercise of any jurisdiction vested in them by virtue of Article 225. True, Article 225 mentions that jurisdiction & power of the High Court will remain the same on 25-1-1950; but it adds that they will be:

(a) Subject to laws made by the Parliament with respect to any of the matters enumerated in list I or List III in Sch. 7.

(b) Subject to laws made by the State Legislature with respect to any of the matters enumerated in list II or III &

(c) Subject to the provisions of the Constitution. After stating that the High Courts will have the same jurisdiction & power as they had on 25-1-1950 the Constitution then proceeds especially to empower them under Article 226 to issue prerogative writs; under Article 227, to have superintendence over all Courts & tribunals throughout their territorial jurisdiction; &, under Article 228 it makes it obligatory for the High Courts to transfer from lower courts to themselves certain cases which may involve substantial question of law as to the interpretation of the Constitution. All these powers vested in the High Court by the Constitution are special powers; & neither the Parliament nor the State Legislatures can deprive the High Courts of these powers as any amendment of any Article in Chap. V of Part VI of the Constitution will require any elaborate machinery set forth in Article 368of the Constitution. The difference then is this; while jurisdiction & powers which were vested in the High Courts on 25-1-1950, can be taken away or amended by the Parliament of the State Legislature, if they relate to matters falling in Lists I & III in Sch. 7, the power invested in the High Courts under Article 226, 227 & 228 cannot be changed except under the provisions of Article 368.

137. I now proceed to consider Article 226 independently of Article 225 & it runs as follows:

1. Notwithstanding anything in Article 32. every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Govt., within those territories, directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, 'quo warranto' & certiorari or any of them, for the enforcement of any of the rights conferred by Part III & for any other purpose.

2. the power conferred on a High Court by Clause (1) shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32.' I shall concentrate my attention on three phrases:

1. 'Notwithstanding anything in Article 32'

2. 'Shall have power'.

3. 'Throughout the territories in relation to which it exercises jurisdiction.

138. The words 'Notwithstanding anything in Article 32' are very significant. The Constitution clearly means that everything stated in any clause of Article 32 is entirely to be ignored while interpreting Article 226. In other words we have to look at Article 226 without any reference to Article 32. We have to take it that the intention of the Constituent Assembly was to give power to the High Court to issue various writs irrespective of the contents of Article 32, Sub-clause (2) of Article 226 is also very clear on this point. In order to understand the correct import of Article 226, it is necessary to remove from our mind every letter of Article 32. Read in this light Article 226 can be construed only in one way; that it gives the High Court power to entertain applications tor issuing writs for enforcement of fundamental rights or for any other purpose. The words 'The High Court shall have power to issue writs etc.' are in themselves not ambiguous at all. Their natural meaning is permissive & enabling only. As stated, at page 1173 in Stroud's 'Judicial Dictionary' Edn. 2:

Though dicta of eminent judges may be cited to the contrary, it seems a plain conclusion that 'may, it shall be lawful', 'it shall & may be lawful', 'empowered', 'shall hereby have power' 'shall think proper' & such like phrases, give, in their ordinary meaning an enabling & discretionary power. They are potential & never (in themselves) significant of any obligation (per Lord Selbourne (1880) 5 A C 214 at p. 235). 'They confer a faculty or power, & they do not of themselves do more than confer a faculty or power' & therefore, where the point in question is not covered by authority,' it lies upon those who contend that an 'OBLIGATION' exists to exercise this power, to show in the circumstances of the case something which creates this obligation' (per Cairns C. S. C (1880) 5 A C 214 at p. 223). On that case Cotton, L.J. observed; 'May' never can mean 'must' so long as the English language retains its meaning; but it gives a power, & that may be a question in what cases, where a Judge has a power given by the word 'may' it becomes his 'DUTY' to exercise that power. ('Re. Baker, Nichols v. Baker' (1890) 59 L.J. Ch. 661: 44 Ch. D. 262).

130. This subject underwent much discussion In 'Julius v. Lord Bishop of Oxford' a decision of the House of Lords reported in (1880) 5 A C 214. The Church Discipline Act, 1840 (C. 86) had enacted that in every case of a clergyman charged with an offence against the laws Ecclesiastical, It shall be lawful' for the bishop of the diocese, within which the offence was alleged to have been committed, on the application of any party complaining thereof, to issue a commission for the purpose of making inquiry as to the grounds of such charge. A complaint was filed against a clergyman but the Bishop concerned did not think it proper to issue a commission for the purpose of making inquiry. The Queen's Bench held that it was imperative to issue the Commission. The Court of Appeal reversed this decision and this reversal was upheld on appeal to the House of Lords, who were practically unanimous in their view in holding that the Bishop was given complete discretion to issue or decline to issue such, commission. A reference was made in the arguments before the noble Lords of the following observations of Coleridge J. in 'Reg. v. Tithe Commissioners' (1849) 14 Q.B.459:

The words undoubtedly are only empowering, but it has so often been decided as to have become an axiom that in public statutes words only directory, permissory, or enabling may have compulsory force where the thing to be done is for the public benefit or in advancement of public Justice.

Referring to these observations Earl Cairns L. C. said:

The only axiom Coleridge J. spoke of was, that, under circumstances, enabling words might have a compulsory force. The cases to which I have referred appear to decide nothing more than this; that where a power is deposited with public office for the purpose of being used for the benefit of persons who are specifically pointed out, & with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise that power ought to be exercised & the court will require it to be exercised.

140. Lord Penzance said that the words 'it shall be lawful' are distinctly words of permission only - they are enabling & empowering words. They confer a legislative right & power on the individual named to do a particular thing, & the true question is whether, regard being had to the person so enabled to the subject-matter, to the general objects of the statute & to the person or class of persons for whose benefit the power may be intended to have been conferred they do or do not create a duty in the person on whom it to conferred to exercise it. It is not enough that, the thing empowered to be done should be for the public benefit in order to make it imperative to exercise that power on all occasions falling within the statute. It may be assumed that all powers conferred on individuals in general public Acts are for the public benefit, or they would not have been conferred. The effect of the cases in which the exercise by the power conferred was held to be obligatory was that, though the statutes concerned had in terms only conferred a power, the circumstances were such as to create a duty It to show that the exercise of any discretion by toe person empowered could not have been intended. In Lord Selborne's opinion, the question whether a judge or Public Officer to whom a power is given by such words is bound to use it upon any particular occasion, or in any particular manner, must be solved, 'aliunde' & in general is to be solved from the context, from the particular provisions, or from the general scope & objects, of the enactment conferring the power.

141. Then, the following proposition of law in the judgment of Lord Blackburn is also important:

The words 'it shall be lawful' are apt words to express that a power is given, & as prima facie the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that prima-facie, they are equivalent to saying that the donee may do it, but if the object for which the rower is conferred is for the purpose of enforcing a right there may be a duty cast on the donee of the power to exercise it for the benefit of those who have that right when required on that behalf. Where there is a duty, it is not inaccurate to say that the words conferring the power are equivalent to saying that the donee must exercise it. It by no means follows that because there is a duty cast on the donee of a power to exercise it that mandamus lies to enforce it that depends on the nature of the duty & the position of the donee.

142. It is important to notice the distinction between a discretion to exercise a power & a discretion to determine whether the occasion for it has arisen. Maxwell (Edn. 9) commenting upon the 'Bishop of Oxford's case' states that though the power was widely discretionary as regards the question whether the occasion for its exercise arose, the Bishop could not have declined to hear the complaint, nor, if his own judicial discretion uninfluenced by considerations foreign to his duty, had decided that the occasion for it had arisen, could be, consistently with the intention of the Legislature, have refused to issue the commission.

143. Applying these principles to the question before us, I am clear in my mind that Article 226 confers discretionary power on the High Courts. A High Court may grant or refuse a writ or an order or direction in the nature of one of the various writs mentioned in the Article according as it judges, in the exercise of its discretion, that prima facie case is made out for it; but the exercise of the direction is imperative, in the sense that once an application is made under Article 226 the High Court is bound to form an opinion, & if its opinion is that a proper case is made out & a legal right of the petitioner had been infringed it will not be competent to refuse to issue a writ or an order or direction in the nature of a writ as may be founts suitable in the case.

144. in other words, under Article 226 a High Court has lull authority to entertain an application for one of the various writs & to pass suitable order thereon. If it has authority to issue a writ certainly it has jurisdiction to do so; or, by 'Jurisdiction' is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented informal way for its decision (Halsbury Vol. 8 P. 31 Article 1176 Hailsham Edn). 'Jurisdiction' thus may be defined to be the power of a Court to hear it determine a cause to adjudicate & exercise any judicial power in relation to it. ('Sukhlal v. Tarachand' 33 Cal 68 Order of Reference). An attempt has been made to collect all the various definitions of the term 'jurisdiction' at page 36 of the Pull Bench decision reported in A.I.R. (8) 1921 Cal 34; &, after reading the various definitions one comes to the inescapable conclusion that 'jurisdiction' is nothing but a content of the judicial power, in other words it is a power of a court to entertain an action, suit, or other proceeding.

145. 'Jurisdiction' if not a word of many meanings, is a word which may be used with either a wider or narrower connotation. A.I.R. (39) 1943 P.C. 164 at p. 174 Col. l. If used in a wider sense, the word is generally accompanied either by the word 'powers' or by the word 'authority or by both. Sub-clause (1) of Section 106, Govt. of India Act, 1915 preserved 'all such jurisdiction, powers & authority as are vested in those Courts respectively at the commencement of this Act.' Sub-clause (1A) laid down that 'The Letters Patent establishing, or vesting, jurisdiction, powers & authority in a High Court may be amended from time to time by His Majesty by further Letters Patent.' This may be taken to be a specimen of the most comprehensive terminology. Then Clause 8, of the Madras Charter of 1800, & similar clauses in the Letters Patent of other High Courts, may be referred to for the use of 'jurisdiction & authority' & last of all, Article 135 & 138 & Entry 95 in List I, Entry 65 In List II & Entry 46 of List III (Sch. 7) of the Constitution may be referred to for the use of 'jurisdiction & powers.' These entries of Sch. 7 in the Constitution correspond to Entry 53 List I; Entry II of List II & Entry 15 of List III Sch. 7 of the Govt. of India Act, 1935. While interpreting the word 'power' in these entries the Supreme Court (Fazal Ali J.) observed in para 8 of : [1951]2SCR51 , 'State of Bombay v. Narottam Das':

Power is a comprehensive word which includes all the procedure & substantive powers which may be exercised by a Court, but the full significance of the words in the context can be grasped only by reading a large number of local & special Acts in which power has been given to Courts to pass certain special & unusual orders.

146. It is not necessary that the word 'jurisdiction' itself be used in the statute for conferring Jurisdiction. The speeches of the noble Lords in the decisions of 'Bishop of Exford's case' clearly indicate that jurisdiction can be conferred by giving power to a Court to take cognizance of the matter. There is thus no warrant for the reposition that 'powers' can only mean procedural jurisdiction or the means by which effect is given by Courts to their determination. The wording of Article 32(2) is:

The Supreme Court shall have power to issue directions or orders or writs in the nature of habeas corpus etc.

Nobody ever seriously contested that 'power' in the above Article did not mean 'authority & jurisdiction' to issue prerogative writs. Section 491, Cri. P.C. is as follows:

Any High Court may, whenever it things fit, direct:

(b) that a person illegally or improperly detained in public custody within such limits be set at; liberty, etc.

It is significant to note that the words are only 'may direct' but the jurisdiction to issue Habeas Corpus writs of a limited type was taken to have been conferred on the High Courts. Section 45, Specific Belief Act, runs as follows:

Any of the High Courts of Judicature at Fort William, Madras, & Bombay 'may make' an order requiring any specific act to be done or foreborne, within the local limits of its ordinary original civil jurisdiction, by any person holding a public office, whether of a permanent or temporary nature etc.

Though the words here are 'may make' yet nobody ever contested that the Presidency High Court did not possess jurisdiction to issue writs of mandamus for acts done or to be done within the limits of their ordinary original jurisdiction. Prom the above instances, it will be sufficiently clear that without using any of the three words 'jurisdiction' 'authority' or 'power' jurisdiction can be conferred on the Courts for taking cognizance of particular types of cases,

147. I now come to the third phrase in Article 226 which is not without significance; viz., 'throughout the territories in relation to which it exercises jurisdiction.' In my opinion, these words clearly indicate that this Court has been given powers to issue writs throughout the State of Madhya Bharat. The phrase 'shall have power' indicated the nature of authority & these words indicate the extent of jurisdiction conferred. So, in my judgment, under Article 226 jurisdiction has been conferred upon this Court to issue directions, orders in the nature of writs, or, the writs themselves for the enforcement of any of the rights conferred by Part III of the Constitution which deals with fundamental rights. The Article adds that these orders, directions, or writs can be issued throughout the territories of Madhya Bharat not only for the purpose of enforcement of fundamental rights but also for 'any other purpose.' I respectfully concur with the view of the Patna High Court in A.I.R. (37) 1950 Pat 387, that the words 'any other purpose' mean that a High Court can issue a prerogative writ for the enforcement of any legal right & the performance of any legal duty.

148. It is then contended that Article 226 was meant only for the Presidency High Courts which had, prior to the enactment of the Constitution, a limited power to issue prerogative writs within the limits of the Presidency Towns. It appears to be true that the Constituent Assembly had in mind the controversy raging since the decision of Norman, J. in the 'case of Ameer Khan' 6 Beng. 392), to the effect that the High Court at Calcutta could issue the Habeas Corpus outside the original jurisdiction to the Superintendence of Jail at Alipore. The opinion of Sunder Ayyar J. at 'pages 77 and 79' in In re Nataraja Ayyar 36 Mad 72; that the learned judge misconstrued 4th clause of the Charter of 1774 coincided with the views of Sir Lawrence Jenkins & Stephen, J., in the 'Amrita Bazar Patrika case 17 C.W.N. 1253. The intention of the Indo-British Legislature subsequently is mainfesto by enacting Section 82, Criminal Procedure Act of 1872 & Section 148, Cri. P.C. of 1875 & by the enactment of Section 491 in 1923 that relief should be granted only under these sections & recourse should be granted only under these sections & recourse should not be had to the old prerogative writs. Their Lordships of the Judicial Committee approved this view when they laid down In 'C. P. Mathen, v. District Magistrate of Trivandrum' 66 I. A. 222: I.L.R. (1939) Mad. 744: A.I.R. (26) 1939 P.C. 213, that the High Court of Madras cannot issue a common law writ of Habeas Corpus in any cases covered by Section 491 Cri. P.C. & when they held in 'Ryots of Garabandho case' 70 I.A. 129: A.I.R. (30) 1943 P.C. 164' that the High Court of Madras has no Jurisdiction to issue certiorari to any outside the town of Madras & in 'Shree Meenakshi Mills Ltd v. Provincial Textile Commr. Madras A.I.R. (36) 1949 P.C. 307' that the jurisdiction of the High Court of Madras for issuing a writ of mandamus is confined to Section 45, Specific Relief Act, & that the writ can be issued only for acts done or to be done within the limits of its ordinary original jurisdiction.

149. It seems to me that the Constituent; Assembly did not like to continue this artificial & invidious distinction between the rights of ubjects residing within the Presidency Towns & the lights of those who resided outside these towns, & also between residents of the State of Bombay, Madras, Bengal on one side & the residents of other States on the other side. The Constitution, therefore, treated all the High Courts alike, laying down a uniform policy under Chap. V enacting in Sub-clause (3) of Article 214 that:

The provisions of this chapter shall apply to every High Court referred to in this article.

The argument that Article 226 was enacted for enlarging the jurisdiction only of Presidency High Courts thus falls to the ground. The intention & the policy of the Constituent Assembly clearly was that the High Court, in every State should hold throughout its territorial jurisdiction, the position of 'aula regis' or 'custos morum' as the King's Bench did throughout England. In order to implement this policy three important changes were introduced in the Constitution.

150. The first change was the Proviso to Article 225 which removed the bar that had existed to the exercise of jurisdiction of the High Court in revenue matters. This prohibition was expressly imposed upon the Supreme Court of Bengal in 1780, after the well-known conflict with Warren Hastings, & as contained in Section 8, East India Company Act, 1780, (21 Geo III C 70) it was in the following terms:

The said Supreme Court shall not have or exercise any jurisdiction in any matter concerning the revenue or concerning any act or acts ordered or done in the collection thereof according to the usage & practice of the country or the regulation of the Governor General in Council.

It was re-enacted in Act 39 & 40 Geo III C. 79 (Govt. of India Act 1800). The word used was 'revenue', not land revenue'; & 'revenue' includes customs, income tax, even quit-rent. A very wide construction was thus put upon the section by the Privy Council in 'Spooner vs. Juddow' 4 M.I.A. 353). The same prohibition was re-enacted in Section 106, Govt. of India Act, 1915 in the following form:

The High Courts have not & may not exercise any original jurisdiction in any matter concerning the revenue or concerning any act ordered or done in the collection thereof according to the usage of the practice of the country or the law for the time being in force.

It was also re-enacted in Section 226(1) of the Govt of India Act, 1935. The only difference was that whereas the Act of 1780 had said that the Supreme Court should not have or exercise any Jurisdiction, the Acts of 1915 & 1935 stated that the High Courts have not & may not exercise any original jurisdiction in any matter concerning the revenue. Explaining the difference in the pharseology Wallis C.J., thus observed at page 725 of 44 Mad 718:

Now, the issuing of the writ of Mandamus to secure the performance of a public duty where no adequate remedy existed by action or otherwise was, it seems to me, clearly an exercise of original Jurisdiction. It was a proceeding originating in the Court issuing it, & might be directed in any proper case to any class of public officer, executive or judicial. It must also be regarded as having been within the original jurisdiction of the Supreme Court because that Court had no appellate jurisdiction. Similarly, I think that the substituted jurisdiction to issue orders under Section 45, Specific Relief Act, is original jurisdiction. It may in terms be directed to any person holding a public office and to any corporation, as well as to any interior Court of judicature. The nature of the jurisdiction exercised is the same in each case. & must be considered an exercise of original jurisdiction.

The express prohibition against the exercise of High Court's power in this regard led to many grievances & it was observed by Coutts-Trotter C.J., that 'there was no justification whatever for preserving the antiquated fossil on the statute book' (P. 455 of 'Govinda Rajulu v. Secy, of State 50, Mad 449'. The Indian Legislature had the power to remove this restriction under sch. 5 of the Govt. of India Act, 1915; & under Section 226(1), Govt. of India Act, 1935; but the legislature did not consider it proper to do so. It is significant to note that the Constitution removed it altogether though the restriction had been in existence since 1780 in the same form.

151. The second change that was introduced in the Constitution related to the power of superintendence over courts & tribunals. Under Section 107. Govt. of India Act, 1915 a High Court had powers of superintendence over all courts 'for the time being subject to its appellate jurisdiction.' Sub-S. (2) of Section 224 in the Govt. of India Act, 1935, however, enacted that:

Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision.

This deprived the High Courts of the revisional powers which they had been exercising over courts subject to their appellate jurisdiction over since the High Courts Act of 1861. After 1935 the revisional powers were confined to those cases where the Indian enactments conferred such a power, The omission of this provision in Article 227 of the Constitution, removes the restriction & restores the law to what it was before the Govt. of India Act, 1935 was enacted 'Bimala Prasad v. State of West Bengal : AIR1951Cal258 . In my opinion, the wording of Sub-clause (1) of Section 227 is of far reaching consequences:

227 (1) 'Every High Court shall have superintendence over all courts & tribunals throughout the territories, in relation to which it exercises jurisdiction.

There is nothing to Indicate that the courts & tribunals referred to above should be 'subject to the appellate jurisdiction of the High Court.' The deletion of this phrase is very significant. All the courts & tribunals (& the word 'tribunal' is important) exercising judicial or quasi-judicial powers (except of course the Military tribunals) are now put under the supervisory control of the High Court & consequently are made amenable to its revisional Jurisdiction.

152. The third change & the most important change introduced was Article 226 conferring power on the High Court to issue prerogative writs or orders & directions in the nature of those writs for any purpose. I have already dealt with this Article 226 above. I again refer to it here only to show that its enactment was in consonance with the policy adopted by the Constituent, Assembly to make the position of the High Court similar to mat of the King's Bench in England. In regard to the power to issue writs Mr. Samvatsar has usefully referred to a speech delivered in the Constituent Assembly on 7-6-1949 (Vol. VIII No. 17 at p. 696 C. A. Debates.) That eminent lawyer, Dr. Bakshl Tek Chand said:

These are the writs which have been among the greatest safeguards that the British Judicial system has provided for upholding the rights & liberties of the people & it is very necessary that they should be incorporated in the Constitution. At present High Courts which are not Presidency High Courts, viz., the High Courts of Allahabad, East Punjab, Nagpur, Orissa, Assam, etc., have not got any of those powers....in the new Constitution it is intended to give the powers to issue these writs to every High Court & will be exercised throughout the territories within its jurisdiction & in order to put matters beyond doubt it is necessary that these writs be specifically mentioned.

From the trend of the speeches in the Constituent Assembly, from its intentions & the policy adopted, &, from the express words used, & then from the substitution for Section 50 in the Specific Relief Act, in the Adaptation Laws Order of 1950 I am quite clear in my mind that the Constitution did confer jurisdiction & powers on the High Courts to issue prerogative writs in suitable cases. It is true that the language used in Article 226 is of the widest possible significance. There is no restriction placed on the nature or form or orders or directions or writs that might be issued. The power given to the High Courts is a large one, but it must be exercised in accordance with well established principles. The decisions of English & American Courts must, subject to all necessary exceptions, continue to afford guidance in India. Then through the decisions of the Supreme Court & the development of case law in this Court as well as in other High Courts, in due course of time some standard is bound to be reached by reference to which the exercise of these Powers will be regulated. This Court has the Power to regulate its own procedure under Section 24, Madhya Bharat High Court Act, (Act 8 of 1949) & the rules as to who will apply for these writs & what form those applications should take will be framed by this Court. I do not find the least difficulty on this point as every thing necessary for the exercise of power is included in the grant of power : [1951]2SCR51 .

153. As regards the nature of Jurisdiction I am certain it will be ordinary original jurisdiction for preorgative writs are issued only in the exercise of original jurisdiction. I have referred to the view of Wallis, C.J., above about a writ a Mandamus. I may, refer to 'Dinshaw Darabshaw, v. Commr. of Income-tax, Central A.I.R. (30) 1943 Bom 77 and Raghunath Keshav v. Poona Municipality A.I.R. (32) 1945 Bom. 7 for the proposition that the power to issue writs of certiorari is part of the original jurisdiction of the High Court. This Court has been exercising ordinary original criminal jurisdiction under Section 491 Cri. P.C. As soon as the Indian Companies Act was adopted in Madhya Bharat ordinary original civil jurisdiction was conferred on this Court so far as cases under the Indian Companies Act were concerned. On the same analogy, I can state that as soon as Article 226 of the Constitution was enacted ordinary original jurisdiction (both civil & criminal) was conferred on this Court so far as the issue of prerogative writ was concerned.

154. As regards the difference between jurisdiction & powers of Supreme Court under Article 32 & those of the High Courts under Article 226 I cannot, do better than quote the following observations of the Supreme Court at p. 126 Col. 2 of : 1950CriLJ1514 , 'Ramesh Thapper v. State of Madras:

Art. 32 does not merely confer power on this Court as Article 226 on the High Courts to issue certain writs for the enforcement of the rights conferred by Part III, or for any other purpose as part of its general jurisdiction. In that case it would have been more appropriately placed among Article 131 to 139 which define that jurisdiction. Article 32 provides a 'guaranteed remedy for the enforcement of those rights & the remedial right is itself made a fundamental right by being included in Part III.

155. The Supreme Court is the protector & guarantor of fundamental rights & its original jurisdiction extends only to the enforcement of fundamental rights, & this view receives confirmation from the terms of Article 139. Article 226, on the other hand, contemplates the issue of writs, orders or directions for all general purposes even other than the enforcement of fundamental rights. It is however difficult for me to state how far the Supreme Court & the High Court can be said, to have concurrent jurisdictions so far as the enforcement of fundamental rights are concerned, or whether an application under Article 32 is maintainable after a similar application is dismissed by the High Court under Article 226? The Supreme Court reserved its opinion on this question recently (vide para 29 of : [1951]2SCR344 ). I am also not sure about the import of Article 32(3) Any other Court' should ordinarily include a 'High Court. But the question in my mind comes up in this form; if Parliament empowers 'any other court' to exercise all the powers exerciseable by the Supreme Court under Article 32(2), will this be remedial right or a fundamental right merely by being included in Part III? In my opinion, the exact import of Sub-clause (3) of Article 32 will depend upon this question & as it is not necessary for the purposes of the case before me, I do not think it proper to express any opinion on the opinion.

156. From the foregoing it follows that, in my opinion the views of my learned brother Mehta J. in 'Anant Bhaskar v. State' & of the Division Bench in 'Harendra Nath Sharma's case' A.I.R. (37) 1950 M.B. 46, were sound & this Court has jurisdiction to entertain petitions for issue of prerogative writs. In my judgment, therefore, the majority opinion in 'Anant Bhaskar vs. State' does not lay down the correct law & should be disregarded. The two petitions should be sent back to the Division Bench for disposal according to law.

157. In accordance with the view taken by the majority (Chief Justice dissenting) the Full Bench holds that under Art 226 of the Constitution the High Court has jurisdiction to entertain applications with respect to all matters in relation to which the powers conferred by the Article may be exercised. These applications will accordingly be fixed for hearing.


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