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Kandaswami Mudaliar Vs. the Province of Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai
Decided On
Reported inAIR1947Mad443; (1947)2MLJ146
AppellantKandaswami Mudaliar
RespondentThe Province of Madras and anr.
Cases ReferredThyagarajan Chettiar v. The Secretary
Excerpt:
- - it was further provided that the governor and council at madras should have the same exemption from the authority of the madras supreme court as was then enjoyed by the governor-general and council from the jurisdiction of the calcutta supreme court. since the supreme court at madras was given the same authorities as were vested in the supreme court at calcutta and the same exemption was given to the governor or council, at madras, as enjoyed by the governor-general or council at calcutta, it followed that the governor or council, jointly or severally, were not subject to the jurisdiction of the madras supreme court which had no power to issue process against them, to the extent of the exemption given......that the governor and council at madras should have the same exemption from the authority of the madras supreme court as was then enjoyed by the governor-general and council from the jurisdiction of the calcutta supreme court. 12. the supreme court at calcutta was established by the east india company act, 1772, and letters patent issued in pursuance thereof. differences arose regarding the jurisdiction of that court in relation to the governor-general and council and, as a consequence, the east india company act, 1780 was passed. it enacted that:the governor-general, and council of bengal shall not be subject, jointly or severally, to the jurisdiction of the supreme court of fort william in bengal for or by reason of any act or order or any other matter or thing whatsoever counselled,.....
Judgment:
ORDER

Frederick William Gentle, C.J.

1. The petitioner is the tenant of a portion of the premises No. 10, Francis Joseph Street, George Town, Madras, of which the second respondent is the landlord and to which the Madras House Rent Control Order, 1945 (hereinafter called 'the Control Order') applied. Pursuant to the provisions of the Control Order, on 16th July, 1946 the second respondent applied for eviction of the petitioner to the Rent Controller who made an order on 15th August, directing the petitioner to vacate the premises. The petitioner appealed to the Collector of Madras against this order; the hearing before the Collector was concluded on September 30, when judgment was reserved ; on19th October, judgment was delivered upholding the order of the Controller and dismissing the appeal. On 12th November, the petitioner preferred a revision petition to the Provincial Government, under the provisions of Clause 8(2-A) of the Control Order. On 16th January, 1947, by Memorandum No. 87080-N/46-2, Development Department, the Government of Madras rejected the revision petition on the ground that no action could be taken by the Government as no revision petition lay to it after 30th September, 1946 in respect of orders passed by Rent Controllers or Collectors.

2. The Control Order was made in exercise of powers conferred by Rule 81 of the Defence of India Rules, which rules were made by the Central Government in exercise of powers conferred by Section 2(1) of the Defence of India Act, 1939. Prior to the dismissal of the petitioner's appeal to the Collector of Madras and prior to the presentation of his revision petition to the Provincial Government, the Defence of India Act expired on 30th September, 1946, consequently the Defence of India rules and the Control Order also expired. On 1st October, 1946, the Madras Buildings (Lease and Rent Control) Act, 1946, came into force ; it affords protection to tenants and prevents unreasonable eviction of them and replaces, with some changes, the expired Control Order. But the Act does not contain a provision similar to Clause 8(2-A) of the Control Order. The rejection by the. Provincial Government of the petitioner's revision petition was because the Control Order had previously expired. Clause 8(2-A) of the Control Order provides that:

The Provincial Government may call for the record of any case which has been decided by the Controller or Collector and make such order in the case as they think fit. Any such order shall be final and shall not be called in question in any Court of law.

In C.M.P. No. 1167 of 1947 the petitioner prays that a writ of certiorari be issued (a) calling for the records and papers in respect of the Development Department Memo No. 87080-N/46-2, dated 16th January, 1947 and (b) quashing the order of rejection. In C.M.P. No. 1168 of 1947 the petitioner prays that this Court may direct the appeal (? petition) be restored to the file and be dealt with according to law and upon its merits. In C. M. P. No 1169 of 1947 stay of the eviction order is sought.

3. In the original applications orders were sought against the Secretary to Government, Development Department, but, since, under Clause 8(2-A) the Provincial Government itself is the reviewing authority and not a Secretary to Government or any other official, rules nisi were directed to issue to the Provincial Government, as the Province of Madras, the first respondent in C.M.P. Nos. 1167 and 1168 of 1947. An interim stay was directed in C.M.P. No. 1169 of 1947 pending the hearing of the other two applications. Notice was also directed to the landlord, the second respondent. Both respondents have appeared to show cause against the rules being made absolute.

4. At the outset, objection was taken by the learned Advocate-General, on behalf of the Provincial Government, to an order for a writ of certiorari in C.M.P. No. 1167 and to an order in C.M.P. No. 1168 directing the hearing and determination of the revision petition on the ground that no such orders can be made against a Provincial Government as such proceedings do not lie against the Government. Mr. Subba Rao, for the second respondent supported the Advocate-General's objection.

5. The objection to the issue of a writ of certiorari is based upon Sub-section (1) of Section 306 of the Government of India Act, 1935, which provides that:

No proceedings whatsoever shall lie in and no process whatsoever shall issue from, any Court in India...against the Governor of a Province...whether in a personal capacity or otherwise...

Provided that nothing in this section shall be construed as restricting the right of any person to bring against...a Province...such proceedings as are mentioned in Chapter III of Part VII of this Act.

By Section 49(1) of the Constitution Act the executive authority of a Province is exercised on behalf of His Majesty by the Governor and by Section 59(1) all executive action by the Government of a Province shall be expressed to be taken in the name of the Governor. There cannot be Government of a Province without a Governor or without a Governor's participation. The protection from proceedings and processes whatsoever in favour of a Governor of a Province is with respect to his personal capacity or otherwise. ' Or otherwise ' means in a capacity other than personal. A Governor's concern with and participation in the Government of the Province is not in a personal capacity but in some other capacity. Is that capacity included in the words 'or otherwise' in Section 306(1)

6. A thing done by the Government of a Province involves participation in it by the Governor ; without the Governor being party to the act, nothing can be done by the Government. Since the Provincial Government cannot do a thing unless there is participation in it by a Governor, the Governor must be deemed to be included in proceedings or process against the Provincial Government with respect to the doing of an act by that Government. If such proceedings or process lie, then the protection given to a Governor by Section 306 (1) is not absolute but is only a limited protection.

7. Section 306(1) of the Constitution Act replaces section no (1) of the Government of India Act, 1915. The latter sub-section provided, so far as material, that:

The Governor General, each Governor...and each of the members of their respective Executive Councils, and a minister appointed under this Act, shall not--(a) be subject to the original jurisdiction of any High Court by reason of anything counselled, ordered or done by any of them in his public capacity only;...

8. In relation to a Governor, the changes effected by Section 306(1) are : a Governor's protection is now in respect of his personal capacity or otherwise and proceedings and process against a Governor cannot be entertained by any Court. Previously the protection related solely to things counselled, ordered or done by a Governor in his public capacity and restricted the High Court alone from entertaining proceedings or processes ; there was no protection with respect to other Courts e.g., District and Subordinate Judges' Courts.

9. In Penugonda Venkataratnam v. Secretary of State for India (1929) 6o M.L.J. 25 : I.L.R. Mad. 979 a Division Bench of this Court considered whether a writ of certiorari could be issued by this Court addressed to 'The Government of Madras, Ministry of Local Self-Government' or ' The Government of Madras, Ministry of Public Health ' in respect of an Order issued by ' The Government, Ministry of Public Health.' At the time of this decision Section 110(1) of the Act of 1915 was in force. It was held that this High Court had no jurisdiction to issue a writ of certiorari against the Governor of Madras, and it had equally no jurisdiction to issue the writ against ': The Governor acting with the Ministers' as the issue of a writ in the latter case would involve the exercise of such a jurisdiction against the Governor himself.

10. A short investigation is desirable into the history of the jurisdiction of the Supreme Court at Madras and of its successor, this High Court, regarding the issue of proceedings or process in relation to the Governor of Madras.

11.The Supreme Court at Madras was established by the Government of India Act, 1800 and by the Charter issued pursuant to the Act. By the Act and the Charter the same authorities were conferred upon the Supreme Court at Madras as were then vested in and exercised by the Supreme Court at Calcutta. It was further provided that the Governor and Council at Madras should have the same exemption from the authority of the Madras Supreme Court as was then enjoyed by the Governor-General and Council from the jurisdiction of the Calcutta Supreme Court.

12. The Supreme Court at Calcutta was established by the East India Company Act, 1772, and Letters Patent issued in pursuance thereof. Differences arose regarding the jurisdiction of that Court in relation to the Governor-General and Council and, as a consequence, the East India Company Act, 1780 was passed. It enacted that:

The Governor-General, and Council of Bengal shall not be subject, jointly or severally, to the jurisdiction of the Supreme Court of Fort William in Bengal for or by reason of any Act or order or any other matter or thing whatsoever counselled, ordered or done by them in their public capacity only and acting as Governor-General and Council.

Since the Supreme Court at Madras was given the same authorities as were vested in the Supreme Court at Calcutta and the same exemption was given to the Governor or Council, at Madras, as enjoyed by the Governor-General or Council at Calcutta, it followed that the Governor or Council, jointly or severally, were not subject to the jurisdiction of the Madras Supreme Court which had no power to issue process against them, to the extent of the exemption given. Hence it was observed by Venkatasubba Rao, J., at page 996 in Venkataratnam's case (1929) 60 M.L.J. 25 : I.L.R. Mad. 979 that:

The Statute of 1780 provides that they (the Governor-General and Council) are exempted' jointly and severally. The Governor is thus individually not amenable for acts done in his official capacity,

and the jurisdiction of the Madras Supreme Court was limited in the same way and to the same extent as was the jurisdiction of the Calcutta Supreme Court in relation to the Governor and Council of Bengal; that is to say that the Supreme Court at Madras had no jurisdiction over the Governor and Council for acts counselled, ordered or done by them in their public capacity, the exemption being jointly or severally.

13. The Indian High Courts Act, 1861, abolished the Supreme Courts and provided for the establishment of High Courts and their jurisdiction ; Section 9 provided that the High Courts to be established in each Presidency should have and exercise all the jurisdiction and every power and authority whatsoever in any manner vested in any abolished Court in the same Presidency. Therefore, the High Court at Madras inherited the powers and jurisdiction of the Supreme Court but such inheritance was subject to the same exemption given to the Governor and Council from process of the Court.

14. No alteration was made before the passing of the Government of India Act, 1915. Section 106(1) of that Statute enacted that:

The several High Courts...have such jurisdiction...and all such powers and authority...as are vested in those Courts respectively at the commencement of this Act.

15. The jurisdiction, power and authority vested in the Madras High Court at the commencement of the Act of 1915, apart from any further jurisdiction, powers and authority subsequently conferred (which are not now material), were those inherited from the Supreme Court. Therefore, the jurisdiction, powers and authority of this High Court, which were reserved to it and declared by Section 106(1) were the same as had been inherited in 1861 from the Supreme Court and subject to the same limitation and restriction imposed upon that Court. The exemption in favour of the Governor or Council jointly and severally continued after the Government of India Act, 1915, by reason and virtue of the inheritance, with its limitations and restrictions, of the Supreme Court's jurisdiction by the High Court, and by reason and virtue of the declaratory provision in Section 106(1) of the Government of India Act.

16. Section 223 of the Government of India Act, 1935, corresponds to Section 106(1) of the Act of 1915 ; its relevant provisions are that:.the jurisdiction of, and the law administered in, any existing High Court...shall be the same as immediately before the commencement of part III of this Act.

18. By this section it is manifested that, apart from Section 306(1) of the Constitution Act, the jurisdiction of the High Court, in relation to the Governor of the Province, is the same as that which was inherited from the Supreme Court. The protection or exemption from process in the High Court, in respect of acts counselled, ordered or done by a Governor in his public capacity, which was accorded to the Governor of Madras by the Government of India Act, 1800, is still extant at the present time.

19. Reference to Section 306(1) can now be made. That section does not restrict the exemption under the old law, indeed, the protection is extended. It now enures to a Governor in his personal capacity, whereas formerly, it was in respect of acts in his public capacity alone. The Legislature could not have intended to give protection to a Governor solely for things done in his personal capacity and, in my opinion, the words ' or otherwise ' include all acts of whatever nature, done by him in connection with, and arising out of, his appointment as Governor. The proviso to Sub-section (1) of Section 306 contemplates that the protection which is given enures to a Governor's acts in relation to his Provincial Government since express reservation is made that nothing in the sub-section shall restrict the right of any person to bring against a Province such proceedings as are mentioned in Chapter III of Part VII of the Constitution Act. There would be no need for such reservation if the protection given by the sub-section did not enure to the acts of a Governor in relation to his Provincial Government. It was not suggested by Mr. Ramamurthi, for the petitioner, that the present proceedings fall within Chapter III of Part VII or that the proviso to Sub-section (1) of Section 306 has application in this instance.

20. The jurisdiction of the Calcutta High Court to issue a writ of certiorari against the Province of Bengal, by which name the Provincial Government of that Presidency can sue or be sued pursuant to Section 176 of the Constitution Act, was considered in In re Banwarilal Roy 48 C.W.N. 766. There, a rule nisi for a writ of certiorari had been issued calling upon the Province of Bengal to show cause why an order which the Provincial Government had made should not be recalled and cancelled. In the course of his judgment, with which Sir Torick Ameer Ali, acting Chief Justice, agreed it was observed by Das, J., at page 803 of the report, that:

Assuming the Government of Bengal can be proceeded against in that name, surely that name will mean or, at any rate include, the Governor. Indeed, strictly speaking in law, the Governor of Bengal may be said to be the Government of Bengal and, at any rate, there can be no Government of Bengal which will not include the Governor. We have seen that this High Court has no jurisdiction to entertain any proceeding whatever or issue any process whatever against the Governor. To accede to this application for issue of a writ of certiorari against the Government of Bengal will inevitably mean issuing process against the Governor, for he is at least a part of the Government of Bengal. It is illogical to hold that, although this Court has no jurisdiction whatever over the Governor by himself, this Court has jurisdiction over him when he is associated with his Ministers.

In the result the rule nisi against the Province of Bengal was discharged. The jurisdiction of the Calcutta High Court and of this High Court are identical with regard to the Governments of their respective Presidencies.

21. In Ladyn Dinbai Petti v. M.S. Noronha : AIR1945Bom419 , it was held by Coyajee, J., that a Chartered High Court had no jurisdiction to issue a writ of certiorari against a Provincial Government, including the Governor of a Province, in view of Section 306 of the Government of India Act 1935. In his judgment at page 512, the learned Judge referred with approval to some of the observations of Das, J., in Banwarilal Roy's case 48 C.W.N. 766 which I have cited, and at page 513 he said:

I must hold that this Court has no jurisdiction to issue a writ of certiorari against the Local Government, namely, the Province of Bombay.

The jurisdiction of this High Court to issue a writ of certiorari was considered by a Division Bench in Thyagarajan Chettiar v. The Secretary to Government of Madras, Revenue Department : AIR1939Mad940 . In the judgment of the Court, delivered by Sir Lionel Leach, C.J., after reference to Venkataratnam's case (1929) 60 M.L.J. 25 : I.L.R. Mad. 979. it is observed at page 207 that:

The petitioner Says that inasmuch as he is not asking for a writ to issue against the Governor, but only against the Provincial Government, his application does not fall within that decision and that it lies by reason of the provisions of the Government of India Act, 1935.

Later, at the same page:

The position under the Government of India Act, 1935, is not here different from the position under the Government of India Act, 1915, and it is abundantly clear that this Court has no power to issue a writ of certiorari in this case.

At page 210 it is further observed:

It is impossible to differentiate between the Governor and the Provincial Government in a matter of the nature of the one now before us.

By Section 3, Clause (43-a) of the General Clauses Act, 1897, in all Central Acts and Regulations made after the commencement of the above Act, ' Provincial Government,' as respects anything done or to be done after the commencement of Part III of the Government of India Act, 1935, is denned as, in a Governor's Province, the Governor acting or not acting in his discretion and exercising or not exercising his individual judgment. By Section 4-A(1) of the same Act, the definition in Section 3 of the expression ' Provincial Government' applies also, to all Indian laws. By Rule 3(1) of the Defence of India Rules, the General Clauses Act, 1897, applies to the Interpretation of those Rules as it applies to the interpretation of a Central Act.

22. The Control Order is an Indian Law and was made pursuant to power given by the Rules. Even if an order made pursuant to the Rules is not to be interpreted in the same way as the Rules have to be, nevertheless, being an Indian Law the General Clauses Act applies and ' Provincial Government 'in Clause 8(2-A) of the Order means' The Governor.'

23. Now as to C.M.P. No. 1168 of 1947, in which the petitioner asks that this Court may order the Provincial Government to restore his appeal (? petition) to the file and deal with it according to law. If the Court made such order it would have to exercise the jurisdiction conferred upon it by Section 45 of the Specific Relief Act. By proviso (f) to that section it is enacted that

nothing in this section shall be deemed to authorise any High Court to make any order binding on...any Provincial Government.

In the light of this provision the Court cannot make the order sought by the petitioner. Mr. Ramamurthi argued that the above exemption applies only to executive acts of a Provincial Government and not to such acts as are contemplated by Clause 8(2-A) of the Control Order. I can see nothing which justifies such a restriction.

24. In my opinion, for the reasons given, the rules nisi issued in respect of C. M. P. Nos. 1167 and 1168 of 1947 should be discharged and the stay sought by C. M. P. No. 1169 of 1947 cannot be granted ; each of these Civil Miscellaneous Petitions should be dismissed with costs, two sets. In the circumstances a certificate will be given pursuant to Section 205 of the Government of India Act, 1935.

Happell, J.

25. I agree and have nothing to add.


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