SHYAM KRISHEN Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This judgment will deal with Civil Writs Nos. 270 of 1950, 640 of 1950, 1 of 1951, 7 of 1951, 16 of 1951, 91 and 103 of 1951, and 768 and 772 of 1950, in all of which similar points of law of great importance have arisen. One of them Civil Miscellaneous No. 270 of 1950 relates to an order passed in December 1947, by the Deputy Commissioner, Karnal, under Section 2 of the Punjab Requisitioning of Immovable property (Temporary Powers) Act, 1947, and the other cases relate to orders passed under the East Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1948, which superseded and repealed the Act of 1947 in November 1948. All of the applications are filed under Article 226 of the Constitution for the issue of one or other of the writs mentioned in that Article.

(2.) At the outset a point raised by the learned Advocate-General, which arises in all the cases regarding the Jurisdiction of this Court to entertain petitions for the writs mentioned in Article 228, requires to be dealt with. The objection of the learned Advocate-General is an ingenious one and, as will be seen, has round some support in s decided case, but in spite of this it appears to me to be without any force, and to be quite opposed to what appears to be the quite clear and unambiguous wording of Article 226, Clause (1) of which reada:

(3.) In repelling the contention of the learned Advocate-General the first point I would make is that in my opinion there is no warrant whatsoever for the argument that Article 226 is to be read with, and subject to, Article 225. This section of the Constitution, Chapter V of Part VI, deals with the High Courts in the states and deals with many miscellaneous matters in connection herewith. The subject-matter of meet of these Articles is clearly quite self-contained, as can be seen from the subject dealt with in the Articles immediately preceding Nos. 225 and 330. Article 220 deals with the prohibition of practising: in Courts or before any authority by Judges. Article 221 deals with salaries etc., of Judges. Article 222 deals with the transfer of a Judge from one High Court to another. Article 223 deals with appointment of acting Chief Justices, Article 234 deals with the attendance of retired Judges at, sittings of High Courts. As I have already mentioned, the subject of Article 225 is jurisdiction of existing High Courts, and that of Article 226 powers of the High Courts to issue certain writs. One indication that two entirely separate matters are dealt with in these Articles is that Article 225 relates only to existing High Courts, whereas the most important words in Article 226 are 'Notwithstanding anything in Article 32 every High Court shall have power." These words alone are quite conclusive on the point that the power of High Courts to issue writs is not in any way governed by the provisions of Article 32 (3), which, in any case, does not even refer specifically to High Court, but seems to indicate that Parliament may give powers to issue writs, orders and directions even to subordinate Courts. When this fact was pointed out to learned Advocate-General and be was asked to say under which of the law-making powers contained in Second Schedule Parliament could give jurisdiction to High Courts to deal with writs and kindred matters under Article 226, all. he was able to do was to refer to Item No, 96 in the Union List which reads: "Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List." He was not, however, able to point out to the rest of the List any item in which writs and such matters were included. It would in fact appear that on the face of it the power to Issue writs and orders of alike nature was vested in the Supreme Court and all the High Courts by the Constitution itself, and it was only left to Parliament to extend any of these powers to subordinate Courts if considered desirable.