BUDHI NATH JHA Vs. MANILAL JADAV

JUDGEMENT

(1.) This application is made on behalf of the petitioner Budhi Nath Jha for grant of a certificate to appeal to the Supreme Court from a judgment of the High Court in Miscellaneous Judicial Case No. 606 of 1957, dated the 13th February, 1958, by which the order of the Election Tribunal, Santal Parganas, dated the 19th September, 1957, was set aside under the provisions of Article 227 of the Constitution and it was further ordered that the election petition filed by Sri Budhi Nath Jha should be dismissed for non-compliance of the provisions of Section 117 of the Representation of the People Act.

(2.) It was argued on behalf of the petitioner that leave should be granted under Article 133 oi the Constitution because the subject-matter of the dispute is valued at more than Rs. 20,000/-. On behalf of the opposite party it was, however, submitted that the proceeding in the High Court under Article 226 of the Constitution was not a "civil proceeding'' within the meaning of Article 133 of the Constitution, and in support of this proposition reliance was placed on the Full Bench decision of this High Court in Collector of Monghyr v. Pratap' Singh Bahadur, AIR 1957 Pat 102.

(3.) It was submitted on behalf of the petitioner that the ratio of the Full Bench decision in AIR 1957 Pat 102, has no application to the present case. It was argued that the Full Bench case dealt with the nature of a proceeding under Article 226 of the Constitution and reached the conclusion that the jurisdiction of the High Court under-Article 226 of the Constitution was an extraordinary jurisdiction vested in the High Court not for the purpose of declaring the civil rights of the. parties but for the purposes of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. It was pointed out on behalf of the petitioner that in the present case we are concerned with a proceeding under Article 227 of the Constitution, and the nature of jurisdiction under Article 227 is different from the nature of jurisdiction under Article 226-of the Constitution. In my opinion, the argument addressed on behalf of the petitioner must be accepted as correct. Article 226 of the Constitution states 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 the nature of habeas corpus, mandamus, prohibition, quo war--ranto and certiorari, for the purposes of enforcing any of the rights conferred by Part HI, or for any other purpose. All these Writs are known in English law as prerogative writs, the reason being that they are specially associated with the King's name. These writs were always granted for the protection of public interest and primarily by the Court of the King's Bench. As pointed out by Holdsworth (History of English Law, Volume I, page 212), the power to issue prerogative writs formed no part of the original or the appellate jurisdiction of the Court of King's Bench. As a matter of history, these writs had their origin in the exercise of the King's prerogative power of superintendence over the due observance of the law by his officials and tribunals, and were issued by the Court of King's Bench -- habeas corpus, that the King may know whether his subjects were lawfully imprisoned or not; certiorari, that he may know whether any pro- ceedings commenced against them are conformable to the law; mandamus, to ensure that his officials did such acts as they were bound to do under the law, and prohibition, to oblige the inferior tribunals in his realm to function within the limits of their respective jurisdiction. The theory of English law was that the King 'himself superintended the due course of justice through his own Courts, preventing cases of usurpation of jurisdiction and insisting on vindication of public rights and personal freedom of his subjects. That is the theory of English law, and our Constitution makers have borrowed the conception of prerogative writs from the English law in framing Article 226 of the Constitution.