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Jahnabi Prosad Banerjee and anr. Vs. Basudeb Paul and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberCivil Rule No. 1058 of 1948
Judge
Reported inAIR1950Cal536,54CWN626
ActsBengal Municipal Act, 1932 - Sections 39B and 43; ;Code of Civil Procedure (CPC) , 1908 - Section 115; ;Government of India Act, 1935 - Section 224(2); ;Bengal Municipal Act (Amendment) Act, 1936
AppellantJahnabi Prosad Banerjee and anr.
RespondentBasudeb Paul and ors.
Appellant AdvocateParesh Nath Mookerjee and ;Arun Kumar Dutt, Advs.
Respondent AdvocateApurbadhan Mukherjee, Adv.; Chandra Sekhar Sen, Jajneswar Mazumdar and Hem Chandra Dhar, Advs.;;
Cases ReferredPashupati Bharati v. Secretary of State
Excerpt:
- g.n. das, j.1. this rule was obtained by the defendants againt the decision of mr. subodh chandra mukherjee, learned subordinate judge, 1st additional court, alipur, district 24 parganas; whereby he decreed the suit filed by the plaintiff for setting aside the election of ward no. v of naihati municipality. 2. the relevant facts are that basudeo paul opposite party no. 1 filed his nomination paper as a candidate from ward v for the impending election of the naihati municipality. the nomination paper was rejected by the chairman of the municipality; an appeal to the district magistrate was dismissed. the election then took place and petitioner no. 1 was declared elected from the general seat in ward v and petitioner no. 2 was declared elected from the reserved seat. the opposite party no......
Judgment:

G.N. Das, J.

1. This rule was obtained by the defendants againt the decision of Mr. Subodh Chandra Mukherjee, learned Subordinate Judge, 1st Additional Court, Alipur, District 24 Parganas; whereby he decreed the suit filed by the plaintiff for setting aside the election of ward No. V of Naihati Municipality.

2. The relevant facts are that Basudeo Paul Opposite party No. 1 filed his nomination paper as a candidate from Ward V for the impending election of the Naihati Municipality. The nomination paper was rejected by the Chairman of the Municipality; an appeal to the District Magistrate was dismissed. The election then took place and petitioner No. 1 was declared elected from the general seat in Ward V and Petitioner No. 2 was declared elected from the reserved seat. The opposite party No. 1 then brought the present suit being Title Suit No. 32 of 1946 in the Court of the District Judge, Alipur for a declaration that the rejection of his nomination paper by the Election Authorities of the Naihati Municipality is illegal and ultra vires and that the result of the election has been materially affected thereby and that the said election is fit to be set aside.

3. The suit was contested by petitioner No. 1 and opposite party No. 4, the Chairman of the Commissioners of the Naihati Municipality.

4. The suit was heard by the learned Subordinate Judge, 1st Additional Court and was decreed.

5. Against the said decree, the petitioners moved this Court under Section 115, Civil P. C. 1908, v [5] of 1908, (hereinafter called the Code) and obtained the present rule.

6. Mr. Apurbadhan Mukherji learned advocate for the opposite party No. 1 raised a preliminary objection that this Court has no power to revise the decision complained of in view of the provisions of Section 39B (inserted by Section 13, Bengal Municipal (Amendment) Act XI [11] of 1936) and Section 43. Bengal Municipal Act XV [15] B. C. of 1932. Reliance was placed on the decisions in Bon Behary v. Makhan Lal : AIR1938Cal768 and Radhanath Saha v. Hari Mohan Saha : AIR1938Cal465

7. Mr. Pareshnath Mukherjee, learned advocate appearing for the petitioners conceded that the decisions did lay down the proposition that the powers of this Court to interfere with the decision of the District Judge have been taken away by Sections 39B and 43 of the Act; but contended that even though the original Act of 1932 and the amending Act of 1936 were passed with the previous sanction of the Governor-General under Sub-section (3) of Section 80A, Government it India Act, then in force the sections are ultra vires of the Provincial Legislature on the following grounds : (1) Because the said sections affected the jurisdiction conferred on this Court under Section 115 Civil P. C., 1908 and Section 106, Government of India Act, 1915 and Section 223, Government of India Act, 1935; (2) because the sections affected the jurisdiction of this Court conferred by Clause (13), Letters Patent.

8. It was submitted that the points so raised were not urged in the cases referred to and required our consideration.

9. It was submitted that a substantial question of interpretation of the Government of India Act, 1935 arose in the case. We, accordingly, directed a notice to be served on the Advocate-General, Bengal in accordance with the provisions of Order 27A of the Code which was added by Act XXIII [23] of 1942.

10. Mr. Sen, the learned Senior Government Pleader has appeared in pursuance of the notice. We are indebted to him as also to the learned advocates appearing in the case for contributing their help to a somewhat difficult investigation and thus to enable us to resolve the problems falling to be determined in this case.

11. The first ground has been amplified by Mr. Pareshnath Mukherjee in the following manner: (a) The old Courts of Sudder Dewany Adalat and Supreme Court had jurisdiction to revise decisions of Provincial Courts; such jurisdiction was preserved by Section 9, High Courts Act 1861 (24 and 25 Vict. Cap. 104) hereinafter called the Charter Act and was later vested in the High Court, the successor of the Supreme Court and the Sudder Dewani Adalat. The High Court also became vested with powers of revision by Section 15 of the Charter Act and by certain statutes of the Indian Legislature. Such powers were confirmed and reiterated by Sections 106 and 107, Government of India Act, 1915 and by Sections 223 and 224 Government of India Act, 1935. Section 43, Bengal Municipal Act, 1932 or Section 39B of the said Act are both Acts of the Provincial Legislature and even though assent of the Governor General had been obtained under Section 80A(3), Government of India Act, 1915, as amended in 1919, the said sections would be ultra vires of the Provincial Legislature; by reason of Section 80A(4), Government of India Act, because the said Sections 39B and 43 affected the powers of revision of the High Court to interfere with the orders of the Election Court which is a Court subordinate to the High Court.

12. We have, therefore, to consider how and when the High Court or its predecessor Courts acquired revisional powers.

13. This involves in the first place an inquiry into the setting up of Courts of Justice in British India.

14. So far as the East India Company's settlement was concerned, a Mayor's Court was established in 1726. The Court administered English Law and had a limited local jurisdiction.

15. In 1765, the Company obtained a grant of the Dewany of the then provinces of Bengal, Bihar and Orissa. This necessitated the administration of Civil and Revenue Justice by the Company. In 1772 Provincial Courts were set up for the purpose. These were manned by European officers who decided causes with the help of Kazis, Maulvies, Muftis and Pandits. Appeals lay from these Courts to the Suddar Dawany Adalat which was composed of the Governor-General and members of his Council till 1801 when Civilian Judges came to be appointed.

16. We are not concerned with the administration of criminal justice, which may be gathered from the preamble to Regulation IX [9] of 1793; appeal from the decisions of subordinate Criminal Courts lay to the Sudder Nizamat Adalat.

17. In 1773, the Regulating Act (13 George in Cap. 63) authorised the setting up of a Supreme Court as a Court of Record, Oyer and Terminer, in place of the Mayor's Court which was to be abolished.

18. On 26th March 1774, the Charter of the Supreme Court was issued by King George III. In consequence of certain disputes between the Judges and the Executive an Act of Settlement (21 George in Cap. 70) was passed in 1781. This was the position at the end of the eighteenth century. It is not necessary to trace the later development of the provincial Courts which is set forth in Chaps. VIII and IX of Cowell's History and Constitution of Courts and Legislative Authority in India, Edn. 6.

19. In 1857 the Sepoys' Mutiny broke out. The suppression of the Mutiny synchronised with the Royal Proclamation by Her Most Exalted and Gracious Majesty, Queen Victoria. In 1858, the Government of India Act (21 and 22 Vict. Cap. 106) was enacted, whereby all powers of the East India Company over the territories then in the possession of the Company ceased to be vested in the Company and became vested in the British Crown.

20. The first Code of Civil Procedure was passed in the year 1859, being Act VIII [8] of 1859. The Act did not confer on the Courts any power of revision. Section 4 provided that 'the judgments of the Civil Courts shall not be subject to revision, otherwise than by those Courts, under the rules contained in this Act, applicable to reviews of judgment, and by the constituted Courts of appellate jurisdiction.'

21. On 6th August 1861, the High Courts Act (24 and 25 Vict., Cap. 104) known as the Charter Act was passed. This Act envisaged the establishment of High Courts under a Royal Charter. The requisite Letters Patent was issued on 14th May 1862, and the High Court of Judicature at Fort William in Bengal was set up in the same year, superseding the old Sudder Courts and the Supreme Court.

22. The amended Letters Patent dated 28th December 1865 repealed the former Letters Patent of 1862 and re-established the said High Court. By virtue of Section 106, Government of India Act, 1915 and Section 223, Government of India Act 1935, these Letters Patent are still in force.

23. Before we proceed to consider the effect of the Charter Act and of the Letters Patent, let us summarise in brief, the salient laws which were applicable to the Sudder Court and the Provincial Courts before the year 1862.

24. In the Presidency Town of Calcutta the Supreme Court was governed by its own practice, rules and orders and the provisions of Act XVII [17] of 1852 and Act VI [6] of 1864.

25. Outside the Presidency Towns, the Provincial Courts were guided by the Acts and Regulations which may be found in the schedule to Act X [10] of 1861, and the Civil Procedure Code, Act VIII [8] of 1859.

26. The above resume shews that before 1861, the Courts in the province had neither any statutory power of revision, nor any inherent powers of revision which are the creation of separate and distinct legislation.

27. Mr. Pareshnath Mukerji contended that the high prerogative writs of Mandamus, Certiorari, Quo Warranto which used to be issued by Supreme Courts are really instances of the exercise of revisional powers. He relied on the following passage in Annie Besant v. Advocate-General of Madras, 46 I. A. 176 at p. 190: (A.I.R. (6) 1919 P. C. 31 : 20 Cr. L. J. 693).

'But their Lordships are not disposed to think that the provisions of Section 435, Criminal P. C. and Section 115, Civil P. C. of 1908 are exhaustive. Their Lordships can imagine oases, though rare ones, which may not fall under either of the sections. For such cases their Lordships do not think that the powers of the High Courts which inherited the ordinary or extraordinary jurisdiction of the Supreme Courts to issue writs of certiorari can be said to have been taken away.'

28. At p. 191, however, their Lordships observe :

'However that might be according to English law,where there is no revision procedure as in India, theirLordships see no reason for narrowing the expresswords of the Indian Act.'

29. It is difficult to draw any certain conclusion from the passage relied on.

30. In Blackstone's commentaries p. 110, the peculiar business of the Court of the King's Bench is stated to be

'to superintend all inferior tribunals, and therein to enforce the due exercise of those judicial and ministerial powers with which the Crown or Legislature has invested them, and this not only by restraining their excesses but also by quickening their negligence and obviating their denial of justice.'

31. In Shiva Nathaji v. Joma Kashinath, 7 Bom. 341 F. B., West J. at pages 359-360 observed :

'A superintending and visitatorial jurisdiction has been exercised from ancient times by the Queen's Bench and the Court of Chancery. The powers of the former Courts have been executed through the writs of certiorari of mandamus, and prohibition.'

32. It may be suggested that the Supreme Court which inherited the powers of the Courts of Kings Bench, got the aforesaid revisional powers.

33. In Hamid Hassain v. Banwarilal, 51 C. W. N. 716 at p 723,: (A. I. R. (34) 1947 P. C. 90), the power of the Supreme Court was held to be restricted to the original jurisdiction of the High Court, to be exercised over persons who reside or hold office within the said jurisdiction.

34. In Field's 'Regulations of the Bengal Code' Section 203 at page 145, the learned author says that 'the Sudder Dewani Adalat as constituted in 1793 exercised no original civil jurisdiction, being a Court of appeal and superintendence.'

35. But so far as the Sudder Court is concerned, we do not find any recorded instance of exercise of such powers.

36. Walsh in his treatise on 'Revision and Extra-ordinary Jurisdiction Ch. 1 S. 1 says that 'the revisional jurisdiction of the High Courts in India over Courts subordinate to itself, or over cases decided in subordinate Courts, may be said to have had its origin in the similar, jurisdiction exercised by the High Courts in England under the King's prerogative, and administered generally on the Crown side.'

37. It is true that every Court of superior jurisdiction possesses inherent powers for preventing injustice in certain cases; but there is no authority for the proposition that in the exercise of such inherent powers, Court can extend its appellate jurisdiction or increase its revisional authority over other Courts.

38. In Pashupati Bharati v. Secretary of State , the following significant passage occurs :

'Outside the statutory provisions no High Court has any inherent powers of revision over the subordinate Courts within its jurisdiction, such for example as the Court of King's Bench in England has for centuries exercised over Courts inferior to itself; and it there have been during recent years tentative efforts on the part of one or two High Courts to assert such powers, they have now been decisively negatived by Sub-section (2) of Section 224 of the Act of 1935.'

39. We have, therefore, to trace the statutory provisions on the point.

40. On 28th August 1861, Act XXIII [23] of 1861 was enacted. Section 35 of the Act for the first time expressly conferred on the Sudder Court powers of revision in cases where a subordinate Court in cases coming before it on appeal, exercised a jurisdiction not vested in it by law, provided no appeal lay from its decision.

41. Section 15 of the Charter Act conferred on the High Courts to be established under the Act, powers of superintendence over all Courts subject to its appellate jurisdiction.

42. When the High Court of Calcutta was established, it inherited the aforesaid power of Sudder Court and Supreme Court and the power of revision conferred on the Sudder Court by Section 35 of Act XXIII [23] of 1861 and Section 15 of the Charter Act, by virtue of Section 9 of the latter Act which reads as follows:

'The High Court shall have and exercise all such criminal, civil, admiralty, vice-admiraly, testamentary and intestate, original and appellate jurisdiction and all such powers and authority for and in relation to administration of justice in the Presidency for which it is established as Her Majesty, by such Letters Patent may grant and direct, ...... and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council, the High Court to be established in the Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under the Act, at the time of the abolition of such last mentioned Courts.'

43. That an unathorised assumption of jurisdiction by a Court could be revised by the High Court under Section 15 of the Charter Act, was decided by the Privy Council in Nilmoney Singh Deo v. Taranath Mukherji, 9 I. A. 174 : (9 Cal. 295 F. C.). The Calcutta High Court has construed the said section as authorising this Court to correct also irregular or improper exercise of jurisdiction, Sardhari v. Hukum Chand, 41 Cal. 876 : (A. I. R. (1) 1914 Cal. 607), Gobinda Mohan Das v. Kunjabehary Das, 14 C. W. N. 147 : (4 I. C. 364). But the powers so conferred are to be resorted to in cases of an unusual character, to prevent gross injustice being perpetrated.

44. Section 622 of Act X [10] of 1877 gave express powers to the High Court to revise decisions of subordinate Courts in cases of unwarranted failure to exercise jurisdiction, or erroneous assumption of jurisdiction by those Courts i. e., in cases similar to those now covered by Section 115(1) Clauses (a), (b) of the Code.

45. Section 42 of Act XII [12] of 1879 further enlarged the revisional powers of the High Court by extending the same to cases where the subordinate Court 'acted in the exercise of its jurisdiction illegally or with material irregularity.' The position therefore was that in 1879 the revisional powers of the High Court were brought into a line with the powers now exercised by the High Court under Section 115 of the Code.

46. Section 622, Civil P. C., 1882 (Act XIV [14] of 1882) merely embodied the said powers of revision conferred by Section 632 of Act X [10] of 1877 and Section 92 of Act XII [12] of 1879. Section 622 was re-enacted, on repeal of the said Act XIV [14] of 1882 as Section 115, Civil P. C., 1908 (Act V [5] of 1908).

47. The Government of India Act, 1915, consolidated the enactments relating to the Government of India Act and the Charter Act and repealed all the preceding Indian Council Acts.

48. Section 106 (1), of the Act, provided that 'the several High Courts are Courts of record, and have such jurisdiction, original and appellate including admiralty jurisdiction in respect of offences committed on the high seas, and all such powers, and authority over or in relation to administration of justice, . . . . as are vested by the Letters Patent, and subject to the provisions of any such Letters Patent, all such jurisdiction, powers and authority as are vested in these Courts respectively at the commencement of this Act.'

49. Section 107 then provided that:

'each of the High Courts has superintendence over all Courts for the time being, subject to its appellate jurisdiction, and may do any of the following things, that is to say:

(a) to (e) omitted.'

50. It is well settled that the right of super, intendence conferred on the High Courts by Section 107 included not only superintendence on the administrative points but also superintendence on the judicial side and that the section empowered the High Court to correct any error in a decision of a Court subject to its appellate jurisdiction, even in cases where Section 115, Civil P. C., may not apply, in order to prevent in justice from being done to the parties: Balkrishna Hari v. Emperor, 57 Bom. 93: (A. I. R. (20) 1933 Bom 1 : 34 Cr. L. J. 199 S. B.) Firm Ganeshdas Shankar Lal v. Firm Ashanand Radhe Sham, A.I R (20) 1930 Lah. 259: (144 I.C. 515), Lalta Devi v. Balkishan Chopra, A. I. R. (20) 1933 Lah. 327: (146 I. C. 258), Bhimnath v. Jagan Nath, A.I.R. (12) 1925 Pat. 674 : (89 I. C. 814). In the matter of Kadhori, 42 ALL. 26; (A. I. R. (6) 1919 ALL. 46: 20 Cr. L. J. 615).

51. We have to consider the question whether the Election Court is subject to the appellate jurisdiction of the High Court. In Nara Narayan v. Aghore Chandra, 39 C. W. N. 971, it was held by Henderson and Khundkar JJ. that the District Judge, performing the duties under the Municipal Act did not shed his character as a Court and his order was subject to the superintendence of the High Court under Section 107, Government of India Act, 1935. The point whether the Provincial Legislature could take away the power of superintendence vested in the High Court under Section 107, Government of India Act, 1915 was conceded. No opinion was expressed on the question whether the Provincial Legislature with the sanction of the Governor. General could exclude the revisional powers of the High Court under Section 115 of the Code. Henderson J. was of the opinion that the Election Court was not subject to the appellate jurisdiction of the High Court but concurred with Khundkar J. in holding that the power of superintendence of the High Court under Section 107, Government of India Act was exercisable because the District Judge as an Election Court functioned not as a persona designata, but as a Court, subject to the superintendence by the High Court.

52. Three classes of cases may arise in considering the question whether a tribunal is subject to the appellate jurisdiction of the High Court. It is sufficient to deal with some of these oases. If the subordinate Court is one from which an appeal lies to the High Court, though in certain specified cases, then the Court is subject to the appellate jurisdiction of the High Court, and that is sufficient to attract the power of superintendence conferred on the High Court; even though no direct appeal lies to the High Court; Balkrishna Hari v. Emperor, 57 Bom. 93: (A.I.R. (20) 1933 Bom. 1: 34 Cr.L.J. 199 S. B.). The position was held to be the same if the link between the subordinate Court and the High Court was established through another-tribunal from whose decision an appeal lies to the High Court in some cases. Be Alien Bros & Go v. Bando & Co., 26 C. W. N. 845: (A. I. R. (10) 1923 Cal. 169). The power of superintendence has also been exercised

'in cases which are not subject to appeal but the superintendence is over the Court and its exercise is not confined to cases, where a right of appeal lies to the High Court' per Dawson Miller C. J. in Sheonandan Prasad Singh v. Emperor, 3 Pat. L. J. 581 at p. 587: (A. I. R. (5) 1918 Pat. 103 F. B.).

53. The position, therefore, is that in 1932 when the Bengal Municipal Act was passed the High Court would have had power to interfere with a decision of the District Judge exercising special jurisdiction in election disputes under the Act, either under Section 115, Civil P C., 1908 or Section 107, Government of India Act, 1915.

54. The question whether Section 39B which made the decision or order of the Judge under Section 38, 39 or 39A final took away the powers of revision under Section 115 of the Code has given rise to a divergence of judicial opinion. An affirmative answer was given in Bonbehary v. Makhan Lal : AIR1938Cal768 , Radhanath v. Harimohan : AIR1938Cal465 . A negative answer was given in Phanindra Bhusan v. Sanat Kumar : AIR1935Cal773 the word 'final' being construed only to mean 'not subject to appeal.'

55. It was not disputed before us that Section 42, Bengal Municipal Act 1932 did in fact purport to take away the powers of revision of this Court. The question is whether the Provincial legislature which passed the Bengal Municipal Act 1932 could do so, even with the sanction of the Governor General under Section 80A(3), Government of India Act, 1915.

56. The powers of the Provincial Legislature in 1932 are to be found in Section 80A, Government of India Act, which was inserted by part I of Schedule II, Government of India Act 1919 (9 & 10 Geo. V, Cap. 101). The relevant portion of Section 80A is as follows:

(1) The local Legislature of any province has power, subject to the provisions of this Act, to make laws for the peace and good government of the territories for the time being constituting that province.

(2) The local Legislature of any province may, subject to the provisions of the sub-section next following, repeal or alter as to that province any law made either before or after the commencement of the Act by any authority in British India other than the local legislature.

(3) The local Legislature of any province may not without the previous sanction of the Governor General make or take into consideration any law

(a) to (d)--omitted,

(e) regulating any central subject, or

(f) regulating any provincial subject which has been declared by rules under this Act to be either in whole or in part subject to legislation by the Indian Legislature in respect of any matter to which such declaration applies, or

(g) omitted,

(h) altering or repealing the provisions of any law which having been made before the commencement of the Government of India Act, 1919, by any authority in British India other than that local legislature, is declared by rules under this Act to be a law which cannot be repealed or altered by the local legislature without previous sanction, or

(i) and proviso omitted,

(4) The local legislature of any province has no power to make any law affecting any Act of Parliament.

57. Section 45A, Government of India Act, 1915 which was also inserted by part I of Schedule II, Government of India Act 1919 reads as follows:

(1) Provision may be made by rules under this Act :

(a) For the classification of subjects, in relation to the functions of Government in central and provincial subjects, for the purpose of distinguishing the functions of local Governments and local legislature, from the function of the Governor-General in Council and the Indian Legislature.

(b) (c) (d) & (2) (3)--omitted.

(4) The expressions 'central subjects' and 'provincial subjects' as used in this Act mean subjects so classified under the rules, . . . . .

58. The rules referred to in Section 80A(3),(f)(h) and framed under Sections 45A and 129A are known as Devolution Rules. The material Devolution Rules may be now referred to.

Rule (3) classification of subjects as Central or Provincial as per lists set out in Schedule I.

Schedule I, Part I--Central subjects

* * * * *

(41) Legislation in regard to any provincial subject; in so far as such subject is in Part II of this Schedule stated to be subject to legislation by the Indian Legislature and any power relating to such subject reserved by legislation to the Governor-General-in-Council,

* * * * *

Part II--Provincial subjects,

(1) Local Self-Government, etc.

* * * * *

(17) Administration of Justice including constitution, power, maintenance, and organisation of Courts of Civil and Criminal jurisdiction within the Province, subject to legislation by the Indian Legislature as regards High Courts, Chief Court and Courts of the Judicial Commissioners and any Courts of Criminal jurisdiction

* * * * *

59. As the Devolution Rules were passed in accordance with Section 129A, their validity is not open to question. Section 80A is so worded as to lead to the conclusion that the general powers of legislation within a province conferred on the local legislature by Sub-section. (1) is subject to the restrictions in Sub-section (2) which in its turn is subject to Sub-section. (3) and finally by Sub-section (4). Section 80A(3) Clauses (e), (f) and (g) use the word 'regulate' while Clause (h) uses the word 'repeal'. The word 'regulate' is, therefore, used in the restricted sense of 'control by legislation', see Punyendra Narain v. Jogendra Narain, : AIR1936Cal593 . Rule 80A (3) (f) (h), and Item 41 Part I Schedule A and item 17, Part II, Schedule A (which are complementary to each other) when applied to a provincial subject (e. g. Municipality) mean that the local legislature is authorised to legislate in regard to jurisdiction of Courts set up by it even though it may affect the jurisdiction, power and authority of the High Court not vested in it by a previous Act of Parliament.

60. This is substantially the view taken by Lort-Williams, Nasim Ali and R. C. Mitter JJ., in Nar Sing Das v. Chogemull : AIR1939Cal435 , respectively at pages 623, 627, 634-635.

61. The learned Senior Government Pleader contended that the effect of Section 84, Government of India Act 1915 was not considered by the Special Bench and submitted that Section 84 (1) (a) and (2) had the effect of validating a provincial legislation even if it affected a parliamentary statute. In my opinion, this does not follow from the sub-section referred to. These sub-sections merely refer to encroachments made upon a central subject or a reserved subject or on the royal prerogative as distinct from an Act of Parliament.

62. It follows from the above discussion that Section 115 of the Code which is an Act of the Indian Legislature, could have been infringed upon by the Provincial legislature viz., Sections 39B and 43, Bengal Municipal Act. The latter Act could not, however, affect the power of the High Court under Section 107, Government of India Act. This power could be exercised in spite of Sections 39B and 43, Bengal Municipal Act. We have next to consider whether the effect of the above conclusion is to render Sections 39B and 43 ultra vires and wholly void or to make them void to the extent of the repugnancy. That the latter is the true effect of the repugnancy follows from the following provision in Section 84, Government of India Act 1915 which was inserted by Section 2 (2), Government of India Amendment Act 1916 (6 & 7 Geo. v Cap. 37).

'A law made by any authority in British India and repugnant to any provision of this or any other Act of Parliament shall, to the extent of that repugnancy but not otherwise, be void.'

63. The whole of the Government of India Act, 1915 (including Section 107) was repealed by Section 321, Government of India Act, 1935. The latter Act, however, contains a similar section viz. Section 224. It differs from the old Section 107 in some respects. The power to transfer suits and appeals to the High Court as contained in Section 107 (b) has been deleted and a new sub-section viz. Section 224 (2) has been added. The new sub-section reads:

'Nothing in this section shall he 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.'

The marginal note to Section 224 is 'administrative functions of High Courts.' This has been substituted for 'powers of High Court with respect to Subordinate Courts' which occurred in the old Section 107. These changes shew that the section is confined to the administrative functions of High Courts and does not give the High Courts any right of judicial interference.

64. This view is supported by the decisions In re Adiraju Somanna, A. I. R. (25) 1938 Mad. 634 : (I. L. R. (1938) Mad. 988), Amar Singh v. Secretary of State, A. I. R. (25) 1938 Lah. 442 : (178 I. C. 292), Dattatraya v. Registrar Co-operative Society, G. P. & Berar, Nagpur, A. I. R. (28) 1941 Nag. 282 (I. L. R. (1941) Nag. 397), Bhutnath v. Dasarathi Das, A. I. R. (28) 1941 Pat. 544 : (42 Cr. L. J. 546), Muljee Sicka & Co. v. Municipal Commissioner, Bombay A. I. R. (26) 1939 Bom. 471: (187 I. C. 8), Pashupati Bharti v. Secretary of State, .

65. In a recent decision, Kavasji Pestonji v. Rustomji Sorabji, A. I. R. (36) 1949 Bom. 42: (50 Bom. L. B. 450), Chagla C. J. and Tendolkar J. held that the prohibition under Sub-section (2) of Section 224 only refers to those judgments of an inferior Court which are not otherwise subject to appeal or revision to the High Court, and that the High Court has still the power of judicial interference in respect of judgments not otherwise subject to appeal or revision. With great respect to the learned Judges, I am of opinion that the above view is based on a misinterpretation of Sub-section (2). Sub-section (2) was intended to provide against a possible argument that the High Court's power to exercise its power of superintendence in appeal or revision conferred otherwise than under the old Section 107, had been taken away by the new Section 224. In my opinion the Legislature did not, by a negative provision in Section 224 (2), intend to confer a general power of judicial superintendence in cases not otherwise subject to appeal or revision. The effect of Section 224 of the Act is to take away that power of judicial interference with decisions of Subordinate Courts which was vested in the High Courts under Section 107, Government of India Act, 1915.

66. From what I have said already, after the enactment of the Government of India Act, 1935, the only powers of revision which were vested in the High Courts, were to be found in Section 224 of the Act of 1935 and Section 115 of the Code. See Pashupati Bharati v. Secretary of State . I have already held that Section 224 of the Act of 1935 did not confer on the High Court power of revision in judicial matters. In regard to such matters, Section 115 of the Code was thus the only provision which gave the High Court powers of revision. The repugnancy, therefore, did not exist at the time when the petition for revision, was filed in this Court in 1948. Section 43 Bengal Municipal Act, 1932 is, therefore, of full validity now and bars the powers of this Court to interfere with the order complained of, under Section 115, Civil P. C., 1908.

67. Mr. Pareshnath Mukherji sought to wriggle out of the position by submitting that Section 223, Government of India Act, 1935, has preserved the old powers of the High Court conferred by Section 9, Charter Act and Section 107, Government of India Act, 1915. This argument is not sustainable because the powers so conferred were taken away as a result of the repeal of the said sections respectively by the Government of India Act, 1915, and the Government of India Act, 1935. This is also supported by the decision of the Federal Court in Pashupati Bharati v. Secretary of State already referred to.

68. The second branch of the contention of Mr. Pareshnath Mukherji is that Sections 39B and 43, Bengal Municipal Act, 1932 are ultra vires because they affect Clause 13 of the Letters Patent. Clause 13 runs as follows:

'And we do further order, that the said High Court of Judicature at Fort William in Bengal shall have power to remove, and to try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court whether within or without the Bengal Division of the Presidency of Fort William, subject to its superintendence when the said High Court shall think proper to do so, either on the agreement of the parties to that effect or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court.'

69. It was contended that Section 43, Bengal Municipal Act constituted the District Judge as an exclusive forum to decide election disputes under the Act and thereby took away the then power of the High Court under the said clause to remove the proceedings to its extraordinary original jurisdiction. It is doubtful whether the proceedings before the District Judge can be regarded as suits within Clause 13 but even if we assume that the proceedings before the District Judge are suits within that clause, Section 43, Bengal Municipal Act, 1932 would be void only to the extent of the repugnancy, for reasons I have already given. Section 43 would still operate to bar the revisional powers of this Court.

70. For the foregoing reasons I am of opinion that the High Court has no power to interfere in revision with the order complained of. The preliminary objection? therefore, succeeds. In the above view, I express no opinion on the merits of the case. The rule is accordingly discharged with costs. Hearing fee 3 gold mohurs to the opposite party No. 1. As no substantial question of law as to the interpretation of the Government of India Act, 1935, or of the Indian Independence Act, 1947 or if any Order in Council under either Act is involved, a certificate under Section 205(1) Government of India Act is refused.

Guha J.

I agree.


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