W N SRINIVASA BHAT Vs. STATE OF MADRAS

JUDGEMENT

(1.) At the very outset of his arguments the learned Advocate-General raised the objection that this Court has no power to issue a writ of certiorari claimed by the petitioners, and he rested his argument on an interpretation of Articles 225 and 226 of the Constitution of India. The decision of their Lordships of the Judicial Committee in Ryots of Garbandho v. Zamindar of Parlakimidi, I.L.B. (1944) Mad. 457 : (A. I. R. (30) 1943 P. C. 164) which lays down that the High Court at Madras has no power to issue a writ of certiorari on an officer or official body beyond the limits of the Presidency town of Madras except in a limited manner as regards British subjects and that the Madras Supreme Court Charter (1800), Clause 8 did not confer such a power has been relied upon by the learned Advocate General. This decision must be deemed to have overruled the earlier decisions of this Court such as In re Nataraja Iyer, 36 Mad. 72 : (16 I. 0. 755) and the cases which followed the same, to the effect that the High Court has jurisdiction to issue a writ of certiorari on an officer beyond the limits of its Ordinary Original Jurisdiction. It has been understood both by the Bench and the Bar in this Court prior to the decision in Parlakimidi's case, I. L. B. 1944 Mad. 457 : (A. I. R. (30) 1943 P. C. 164) that this Court has inherited all the powers of its predecessor, viz., the Supreme Court of Madras, in the matter of issuing all the prerogative writs which the Court of King's Bench in England had and which were conferred upon the Supreme Court by its Charter of 1800. There had been a number of instances where writs of certiorari had been issued to tribunals authorities and officers functioning outside the City of Madras and even a writ of prohibition had been issued by this Court on a Deputy Registrar of Co-operative Societies functioning outside the City as in Krishna Iyer v. The Secyt Urban Bank Ltd., Calicut, 65 M. L. J. 367 : (A. I. R. (20) 1933 Mad. 6b2). But the authoritative pronouncement of Viscount Simon in the case Royts of Garbandho v. Zamindar of Parlakimidi, I. L. B. (1944) Mad. 457 : (A. I. R. (30) 1943 P. C. 164) referred to above has reversed the current of decisions, prior to it and if the Constitution of India did not confer a right on this Court to issue a writ within the limits of its appellate jurisdiction, then we have to hold that our power is limited to issuing writs within the limits of the Presidency town of Madras.

(2.) The learned Advocate-General invited our attention to Article 32, Clauses (2) and (3), especially to Clause (3) which says that Parliament may by law 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 (2) empowered the Supreme Court to issue the prerogative writs such as hbeas corpus, mandamus, prohibition, quo warranto and certiorari and other directions or orders for the enforcement of any of the fundamental rights conferred by Part in on the citizen. Article 139 enacts that the Parliament may, by law, confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for purposes other than those mentioned in Clause (2) of Article 32. It is therefore clear that the Supreme Court, as a Court of Original Jurisdiction, has not been empowered to issue writs in the first instance for any purposes other than the enforcement of the fundamental rights conferred by Part III of the Constitution. In other words, it is not open to any party to approach the Supreme Court, and pray for the issue of a writ or order on any tribunal, authority or officer, doing judicial or quasi judicial functions, if such authority, tribunal, or officer was acting in excess of his jurisdiction or refusing to act in the proper exercise of his jurisdiction except for the enforcement of fundamental rights. The question for consideration is whether Article 226 has conferred that power on the High Court with regard to the enforcement of rights conferred by Part III. But the learned Advocate-General invites our attention to Article 225 of the Constitution whereby the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, are laid down as the same as immediately before the commencement of the Constitution. There is a proviso added to it which has obliterated the invidious distinction that existed prior to the commencement of the Constitution whereby the High Court was negatived the jurisdiction in matters concerning revenue though the Subordinate Courts did have that power. Now, the learned Advocate-General emphasises the fact that since Article 225 sustains and maintains the power and authority which this Court had on 25-1-1950, and' since according to the decision of the Privy Council this Court had no power to issue a prerogative writ outside its Ordinary Original Jurisdiction, unless by express conferment Article 226 gives the power to issue a writ outside the Ordinary Original Jurisdiction, this Court has no authority to act in the manner prayed for by the petitioners. For this contention he places reliance on the decision of the majority of a Full Bench of three Judges of the Madhya Bharat High Court reported in Anant Bhaskar v. State, A.I.R. (37) 1950 M. B. 60: (51 Cr. L. J. 1852 F.B.).

(3.) According to the learned Advocate-General the appropriate Legislature, by virtue of the powers conferred on it, has not invested this Court with the power to issue writs outsideits Ordinary Original Jurisdiction after the commencement of the Constitution and therefore we have no power to entertain the present applications. The distinction between the words "power" and "jurisdiction" in Article 226 is practically the mainstay of the contention on the side of the State. It is urged that Article 226 conferred upon the High Court certain powers which they may use for giving relief in the exercise of their jurisdiction. The extent of the jurisdiction of the High Court and the cases in which it can be exercised and the procedure by which it can be invoked are matters outside the purview of Article 226. Therefore what is urged is that unless this Court is specifically empowered under Clause (3) of Article 32, we will not be justified in invoking Article 226 for the issuing of such writs in the exercise of our existing jurisdiction. We prefer to follow the reasoning and the conclusions contained in the dissenting judgment of Mehta J. of the Madhya Bharat High Court as in our opinion Mehta J.'s judgment appears to us to be the correct one. The learned Judge was of opinion that Article 32, Clause (3) does not refer to existing High Courts constituted in the State because notwithstanding anything contained in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises its jurisdiction to issue directions, orders or writs as mentioned in Article 226 for the enforcement of the fundamental rights and for any other purpose. What cl, (3) contemplates is that the Parliament may, by law, provide for conferring jurisdiction on other Courts than the High Courts. In the judgment of the majority of the Full Bench in the aforesaid case, a distinction is sought to be made between the two alleged concepts of "power" and "jurisdiction." The learned Chief Justice says 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. 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 that their fundamental rights are infringed by the demand of security. We do not think it necessary to embark upon discussion about the meaning of term "for any other purpose" and 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 and jurisdiction to issue the writs specified in Article 226.