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TMI Blog1952 (10) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... end of the five years for which the tenancy stood, on the ground that the land was seeded by him for his business of a coal-dealer. The second non-applicant expressed a desire, to continue the lease on the same terms and conditions as before (as per Clause 13(i)(b) of the Control Order) and also contested that the Petitioner needed the premises to start a bona tide or genuine business. The contentions of the second non-applicant were accepted by the Rent Controller & on appeal by the Additional Deputy Commissioner, the application was dismissed. It was in these circumstances that this petition was filed. 4. This matter was originally before the Chief Justice and Mudholkar J. but it was referred to this Full Bench because a doubt appears to have arisen about the. extent of the powers of this Court under Articles 226 and 227 of the Constitution. In - Sagatmal v. Additional Deputy Commr., Nagpur ILR (1951) Nag 769 : 1951 Nag LJ 566, to which I was a party, it was laid down that the power to issue a writ, of certiorari is not equal to an appeal and that all that this Court can do under Article 226 is to quash the order and return the case for a fresh determination according to law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isional jurisdiction and that, in addition to the process of certiorari, this Court has the power to issue a mandamus, as also orders or directions and that in the exercise of this power this Court may not only quash orders but make the orders itself. 8. We are concerned in this case with a tribunal which is constituted under a special law to deal with the letting of houses and the control of rents. The order of that tribunal is subject to but one appeal, namely to the Deputy Commissioner; and but for this appeal, the decision of the tribunal is final and no further appeal or revision lies. We are not concerned here with the enforcement of fundamental rights, nor are we concerned with any administrative action of Government or Public Authority. These important facts have to be borne in mind as no distinction was apparently made on this score by the Counsel for the Petitioner. 9. Now the claim which has been made by Shri Phadke is very far reaching. It seeks to invest this Court with unparalleled powers and if Article 226 can be read to mean what it is contended it does, there is hardly anything which this Court cannot do. When such vast and unprecedented powers are attributed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y been disposed of by issuing a bare notice and an order or direction without any reference to the writs named in the Article. There have been but three cases in which some limits were indicated. I was a party to all three. In - Sheoshankar v. The State ILR (1951) Nag. 646 (FB) I indicated certain Unfits which did not need the approval of the majority (vide page 703). In - Badami Bai v. P.A. Tobin 1952 Nag LJ 426 Choudhuri J. and I approved of the decision in - Sagatmal's case and following it, passed merely an order quashing the lower Court's order without substituting our own though the decision could only be one way after our decision. 13. Now, the first point to establish in this case is whether the Rent Controller and on appeal the Deputy Commissioner exercise judicial or ministerial functions. The distinction between these two functions is sometimes exceedingly fine, but in most cases it is clear. The term 'judicial' has not been successfully defined. Sometimes it is contrasted with 'administrative' per Vaughan Williams L.J. in - Rex v. Woodhouse (1906) 2 KB 501 at p. 511; sometimes with 'ministerial' (per Moulton L.J. ibid at page 535); somet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari. 15. From this quotation it is clear that the I term 'judicial' embraces even the acts of special tribunals which though administrative in character perform functions resembling those o£ 'Courts. Such tribunals may be subject to certiorari and mandamus, but appeals against their decisions cannot be taken to a Court without that right being expressly given. 16. Again, Hamilton L.J. (later Lord Sumner) in the - 'Arlidge's case (1915) AC 120 when that case was before the Court of Appeal observed: The Local Government Board here is a statutory tribunal, anomalous as compared with Common Law Courts, created by the Legislature for a special class of appeals and endowed by it with the power of formulating its own procedure. We must assume that a department which the legislature has entrusted will be worthy of the trust. The judgment of such a tribunal, regular on its face, is surely entitled to' as much credit, as that of a fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability and affecting the rights of others.... 18. It may be pointed out that the liability is imposed 'by the determination itself' and not 'by any fact determined.' 19. In - Prentis v. Atlantic Coast Line Co. (1908) 211 US 210 at p. 226 it was laid down that: A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. See also the leading case of - Rex v. Electricity Commissioners (1924) 1 KB 171 and also - In re Clifford and O'Sullivan (1921) 2 AC 570. 20. Applying these tests to the Rent Controller and the Deputy Commissioner acting under the Order, the inference is irresistible that they exercise judicial functions and the Rent Controller is a legal tribunal and not merely an executive Officer. An examination of their powers and duties clearly establishes this. 21. The Regulation of Letting of Accommodation Act, 1946 (XI of 1946) has been passed to provide for regulating the letting and subletting of accommodation in the Central Provinces and Berar and for ancillary matters. By the second section, the Provincial Government is given th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to being by express legislation. See - Minakshi Naidu v. Subramanya Sastri 11 Mad 26 (PC), - Hori Ram Singh v. Emperor 1939 FCR 159 at p. 165 and - Sevak Jeranchod Bhogilal v. Dakore Temple Committee AIR 1925 PC 155. The nature of an appeal has been examined before by me in - Radhakisan v. Shridhar ILR (1950) Nag 532 at p. 553 (FB). It is "in effect a limitation of the jurisdiction of one Court & an extension of the jurisdiction of another": See - Attorney General v. Sillem (1864) 10 HLC 704. But the essential characteristic of the appellate jurisdiction is that it reviews and corrects the proceedings in a cause decided by an inferior Court or tribunal, and, unless otherwise provided by law, "has the same jurisdiction over the cause as the inferior Court or tribunal." Sometimes analogous powers are given to a Court not of appeal but of revision, but in both cases that power must be granted by statute before the appellate or revisional Court can give its decision on the whole of the cause. 25. Under the Act, and the Order which I am considering, not only no appeal or revision, to the High Court is provided but there is an express provision barring them. It is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmatively all that is included in that power but only to deal with the narrow question arising in this case. Article 226 gives a power to the High Court to issue 'directions, orders or writs, including writs in the nature of 'habeas corpus', 'mandamus', 'prohibition', 'quo warranto' and 'certiorari'. What this power includes is a large question but it is easier to say what it does not include. 28. I begin first with the named writs. They are all prerogative writs. Of these habeas corpus, prohibition and quo warranto are not apposite to the present purpose but certiorari and mandamus are. I propose first to deal with the question: what can be done under the process of these two writs? The article says that the High Court can issue writs 'in the nature of certiorari and mandamus. The employment of the words 'in the nature of can have but two meanings. First, that archaic language is sought to be avoided. By the statutory enactment of 1938 (Administration of Justice (Misc. Prov.) Act, 1938, (1 and 2 Geo. VI Ch. 63), it has been declared in England that the prerogative writs of mandamus, prohibition and certiorari shall no longer be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controversies between two or more States; between a State and a citizen of another State, between citizen of different States, between the citizens of the same State claiming lands under grants of different States, and between a State or the citizen thereof, and foreign States, citizens or subjects. Section (3): In all cases affecting ambassadors, other public ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make. 31. It is obvious from this that the jurisdiction of the Supreme Court to issue a writ of certiorari must of necessity be a part of its appellate jurisdiction. Indeed the Supreme Court has been granted a special power to review cases from the Courts of appeals by a writ of certiorari granted upon petition of any party to any civil or criminal case, before or after rendition of judgment or decree. See U.S.C.A. Tit. 28 para 1254. As regards the Circuit Court of Appeals, being in the nature of adjuncts to the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that jurisdiction, for, in so doing, it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise. must be borne in mind. Though I have found cases of the Supreme Court of the United States of America, they are easily explained on the footing of the powers erected there and I do not propose to examine them for the same reason. 34. Now, if certiorari is only to quash, the question is whether the High Court can utilize the other prerogative writ, namely, mandamus to dictate to the inferior Court the decision It should give. Here the argument was two-fold. It was contended that we can either issue a mandamus per se or add a mandamus to certiorari. There are many reasons why this cannot be done but I do not propose just yet to give other reasons. I shall show for the present why a mandamus cannot be used thus. I will take up the question of mandamus as a prerogative writ and the extent of its use vis-a-vis judicial tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: It is the ordinary practice of the Court of B.R. to grant the writ of mandamus to command magistrates or the Quarter Sessions to hear and determineor give judgment in cases within their jurisdiction where they have refused altogether to exercise it, but no instance can be cited in which the Court of B.R. has granted a mandamus to compel them to do a specific act, as to come to any particular decision - R. v. Suffolk (J) 5 N & M 144. 37. I am aware that the writ has been described as one to ampliate justice, and in - Rex v. Barker (1762) 3 Burr 1265 at p. 1267 Lord Mansfield laid down that: A mandamus is a prerogative writ; to the aid of which the subject is entitled, upon a proper case previously shown, to the satisfaction of the Court. The original nature of the writ, and the end for which it was framed, direct upon what occasions it should be used. It was introduced, to prevent disorder from a failure of justice, and detect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. Within the last century it has been liberally interposed for the benefit of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is true that the opinion in - Queen v. Sharman (1898) 1 QB 578, based on - Boulter v. Kent (J) (1897) AC 556 was not accepted later on by the Court of Appeal but the decisions in - Reg. v. Bowman (1898) 1 QB 663 and - Reg. v. Cotham (1898) 1 QB 802 do not go as far as is contended for in this case. The case of - Rex v. Dodds, was concerned with a license-granted by the Justices to which a condition; was attached. The question was whether an appeal lay or a mandamus could issue. In view of the fact that there was no refusal to renew the license, the mandamus was to deliver the license without the condition. The condition being in excess of the jurisdiction of the magistrates was deleted and the license was already ordered to be delivered by the magistrates. 40. The view of mandamus which I hold finds support in the Colonies and America. In Australia in - The King v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres 78 CLR 389 it was observed by Latham C.J., Rich, Dixon, McTiernan and Webb JJ. that: Where a Court or public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus. The writ may issue w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts nature a judicial act and within the scope of its jurisdiction and discretion. But mandamus cannot be issued to compel the Court below to decide a matter before it in a particular way or to review its judicial actions had in the exercise of legitimate jurisdiction. Nor can the writ be used to perform the office of an appeal or writ of error. See also - In re Lewis (1893) 150 US 150, and the cases cited by Fuller C.J., - In re Elisha T. Loring; Ex parte (1877) 94 US 418, and - In re Flippin (1877) 94 US 348; among a host of others. 44. The above observations Show the essential nature of the process of certiorari and mandamus, which nature the Constitution requires us ever to bear in mind. After all, when the Constitution mentions the writs of certiorari and mandamus it means something. I cannot do better than quote the words of Griffiths. C.J. in - Baxter v. Commissioner of Taxes 4 CLR 1087, at p. 1107: Again in a Constitution establishing a State,, whatever its degree of dependence or independence, certain things are taken for granted, just as, to compare small things with great, the mere creation of a corporation implies many incidents which it is not necessary to set forth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide under the same (Lands' Clauses Consolidation) Act - The Queen v. Sheward (1880) 5 QBD 179 at p. 182. In India, as in England, the grant of a rule under the extraordinary jurisdiction is discretional, and the power should be used only to sustain, and not further to disturb, the regular course of judicial administration; to prevent distortions, or sham applications of the law, but not to promote uncertainty and restlessness, by an over-nice scrutiny of proceedings that aim at promptness rather than refinement. The above passage is quoted with approval in - W.R. Pandit v. 2nd Additional District Judge, Nagpur ILR (1951) Nag 94 at p. 97, though, if I may point out respectfully, there it is erroneously assumed that these remarks apply to the writ of mandamus. So much for certiorari. 47. In dealing with mandamus the learned Judge has observed that the object of the writ is to prevent failure of justice; that it is granted only when there is no other specific remedy by which such a failure can be prevented; that it lies to compel an inferior Court to adopt the requisite proceedings, to record correctly but not to come to a particular decision even though it appears the one actu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of injunction consequent upon the first. As regards the third prayer it has been contended by Mr. Joshi, the learned Counsel for one of the Respondents, that having regard to the nature of the case and the allegations made by the Petitioner himself, the prayer for a writ of mandamus in. the form in which it has been made, is not tenable. What is argued is that a writ of mandamus can be prayed for, for enforcement of statutory duties or to compel a person holding a public office to do or forbear from doing something which is incumbent upon him to do or forbear from doing under the provisions of any law. Assuming that the Respondents in the present case are public servants, it is said that the statutory duties which it is incumbent upon them to discharge are precisely the duties which are laid down in the impugned Act itself. There is no legal obligation on their part to abstain from exercising the powers conferred upon them by the impeached enactment which the Court can be called upon to enforce. There is really not much substance in this argument, for, according to the Petitioner the impugned Act is not valid at all and consequently the Respondents cannot take their stand on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bear from doing it, but is merely guided in the matter of the doing of that duty or forbearance from it. It is obvious that even in the matter of prerogative writs sometimes a command, sometimes a direction is needed. Thus a Court may order the release of a detenu; it may issue a writ quashing a proceeding or it may direct that an election be held within a particular time. In cases which are referred to the High Court on a case stated, it may be necessary to give a direction even to the inferior Court or an authority how to proceed in the matter, as for example, a reference under the Municipal Law or a reference by a Small Cause Court Judge on a question of law or usage having the force of law, or some questions as to the construction of a document which construction may affect the merits of the decision. But a direction to record a particular judgment or to decide a judicial matter in a particular manner can no more be given than a mandamus issued for the same purpose. I shall show presently that a Court does not do indirectly what it cannot do directly; and a direction which would in effect be a mandamus to record a particular decision is no more warranted by the Constitution tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras AIR 1951 SC 229, an application under Article 32 complaining of the infringement of the Petitioner's Fundamental Right to employment in the State service was made. A direction was issued to the State Government to consider and dispose of the Petitioner's application for the post after taking it on file on its merits and without applying the rule of communal rotation. The Supreme Court did not lay down in that case a universal rule applicable also to judicial tribunals. 56. It was argued that Article 226 is wider in its ambit than Article 32 of the Constitution; that Article 32 is meant only to be used when there is an encroachment on fundamental rights, whereas Article 226 can be invoked for any other purpose. It is a matter of considerable doubt whether the words "any other purpose" widen the operation of the Article to an unlimited field of activity or must be read as referring to matters at least analogous to the purpose named before. It is not necessary for the purposes of this case to enter into a discussion of that phrase, which has been interpreted in many ways in different High Courts. In - State of Orissa v. Madan Gopal AIR 1952 SC 12, their Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider and decide on the exact scope and extent of the jurisdiction of the High Court under Article 226. Whether, the writs it can issue must be analogous to the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari specified therein and the power is subject to all the limitations, or restrictions imposed on the exercise of this jurisdiction, or whether the High Court is at liberty to issue any suitable directions or orders or writs untramelled by any conditions whenever the interests of justice so require, is a large and somewhat difficult problem which does not arise for solution now.... Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in. excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding the High Court) have no say. Once the quashing order is passed, the matter must be decided 'within the jurisdiction created by law.' The High Court is not the Rent Controller, the Industrial Tribunal, the Revenue Board etc. by turns. If it cannot interfere by appeal, it cannot decide the cause nor ask the Court to give a particular decision. The High Court has jurisdiction only to interfere: Where the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it, or in violation of the principles, of natural justice or refuse to exercise jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.... per Chandrasekhara Aiyar J. in - Veerappa Pillai's case 1952 SCJ 261; (op. cit. sup.). The limits of this jurisdiction are reached when the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this. I have already stated that Article 226 must be taken to have given some concrete and definite powers. The attempt has been to attribute to the High Court plenary powers without check; and the argument of the learned Counsel for the Petitioner is that the High Court has got a power, unlimited in its extent, to question the orders of any Court, tribunal, person, authority and, even in, suitable cases, Government, and. to substitute its own decisions for the decisions-of the appropriate body or bodies. Such an amorphous power, I do not think, it was ever intended the High Court should possess. The power which has been granted must be exercised in accordance with well established principles. It must stop short with getting rid of orders which are wrong; but the High Court cannot arrogate to itself the powers of every conceivable tribunal or body in the country and to pass orders in matters which are specially within the competence of those bodies. 66. The Article is not to be read as if it read that the High Court may issue 'any direction, order or writ'. It is clear enough that a direction is needed in the case of habeas corpus to release a person illegally detained. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade to them is quashed by this Court by a writ of certiorari on any ground which does not deal with the merits of the case, it is not only permissible, but it is also incumbent on the inferior tribunal to take up the application and to rehear the same. The learned Advocate-General appearing for the State very properly admitted this position and stated that the Government was prepared to deal with the application before them in the light of the judgment of this Court. In these circumstances, it is not necessary to grant a mandamus as pointed out by Lord Goddard, C.J., in the recent judgment in - Rex v. Northumberland Compensation Appeal Tribunal 1951-1 KB 711 at p. 724. The learned Chief Justice says: Once the order is quashed it follows that the applicant will be able to go back to the appeal tribunal. In this case, once the order of the Government is quashed the applicant will be able to go back to the Government acting under Section 64-A. 69. In - Jagatmal v. Rent Controller Misc. Petn. No. 1626 of 1951, there was a petition for mandamus to hear and determine and in the face of the earlier order in - Sagatmal v. A.D.C. Nagpur ILR (1951) Nag 769, the mandamus merely to hear a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no argument was addressed to the Full Bench. Hemeon J. 73. The Petitioner Bhailal, who is an importer of coal at Akola, was using an open site belonging to the Maratha Boarding House for the storage of coal, but he was required to vacate it because it was required by the Maratha Boarding House. He was the holder of nazul plots Nos. 24 and 25; and on 10-1-1945, he leased an area of about 60 feet x 40 feet in those plots, at a monthly rent of ₹ 35-0-0, to Ramlal Balgovind for a period of 5 years under a registered deed. The coal business, which was not thriving at the time of the lease to Ramlal Balgovind, subsequently expanded, and the Petitioner found that the land in the plot to which he moved his business was inadequate for his needs. On the termination of the lease he accordingly moved the House Rent Controller, Akola, under Clause 13(3)(vi)(c), Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, for permission to give notice to Ramlal Balgovind determining the lease. This application was dismissed by the House Rent Controller; and Bhailal's appeal from that order was dismissed by the Additional Deputy Commissioner. He then applied to this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the circumstances in which the writs named specifically can issue because that argument, if accepted, would so restrict the meaning of the words 'directions, orders or writs' as to render them otiose. It is commonplace that effect must be given to every provision of a statute and that no word should be regarded as a surplusage unless that would lead to an absurdity. No absurdity results because of the construction we place on this Article. Again, the power conferred by Article 226 on High Courts is discretionary. It would, therefore, not, in our opinion, be right to read limitations in the wide powers conferred by the general words used therein merely be cause these words are followed by some specific words which connote a restricted power, more so when the Article provides that the power conferred by the specific words is included in that conferred by the general words. The contention, therefore, that our powers are limited to the issuing of the specified writs only must fail. 77. In - Chhaganlal v. The Additional Deputy Commissioner, Nagpur Misc. Petn. No. 37 of 1950 (Nag), the learned Judges in dealing with a matter similar to that now before me considered the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily exercisable in its appellate or revisional jurisdiction. The Court, while entertaining an application for a writ like the present does not act either under its appellate or its revisional jurisdiction. 79. There has thus been a conflict of decisions in this Court; and now proceed to survey the views of other Courts in the matter. In Brajnandan Sharma v. State of Bihar AIR 1950 Pat 322 Meredith C.J. said I think Article 226, when it says 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 warranto' and 'certiorari', or any of them, for the enforcement of any of the rights conferred; by Part III and for any other purpose, means more than this and gives us full authority and indeed a duty to issue necessary directions. If the direction does not conform, exactly to one of the writs, specifically mentioned that does not matter. We are given the widest powers of issuing directions, orders or writs, and in the present case, besides making a declaration that the order is void, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51 Cal 430, not made subject to any existing law or to any restrictions imposed by the law. The contention that the High Court had no power if interference if there was suitable provision in the Income Tax Act was not accepted, although Das Gupta J. indicated that interference under Article 226 was not proper if that Statute furnished an adequate legal remedy which was not less convenient, beneficial and effective. 84. Sayeedah Khatoon v. State of Bihar 30 Pat 21 related to a case in which an appeal was pending but the Division Bench acted under Article 226; and in - Soorajmull v. Assistant Controller of Customs AIR 1952 Cal 103, Bose J. made the following observations: ...a writ of 'certiorari' does lie, even though there may be an alternative remedy open to the Petitioner by way of appeal under the provisions of the Sea Customs Act and there is also the alternative remedy by way of action under the general law. It was contended by the learned Counsel for the Petitioner that Article 226 of the Constitution has vested the High Court with supreme and unqualified power to issue the Prerogative Writs in proper cases. This power is not subject to any other provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, but the powers given to this Court under Article 32 are much wider and are not confined to issuing prerogative writs only. Their Lordships also issued specific directions to the Respondent Municipal Board not to prohibit the Petitioner from carrying on his trade and to withdraw his pending prosecution. 85. In - G. Veerappa Pillai v. Raman and Raman Ltd. AIR 1952 SC 192 the Madras High Court was moved for a writ of 'certiorari' for quashing the orders and the proceedings of the Regional Transport Authority, the Central Road Traffic Board, Madras and the State of Madras and for the issue of a writ of mandamus or other such appropriate directions to the first Respondent to transfer, issue or grant "the five 'pucca' permits in respect of the route Kumbakonam to Karaikal to the Petitioner herein". The High Court quashed certain proceedings of the Regional Transport Authority and the Central Road Traffic Board, Madras, and an order of the State of Madras, and it also directed the issue to the Petitioner of permits for the 5 buses in respect of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority, view received support from the decision of their Lordships of the Supreme Court of India in - Rashid Ahmed v. Municipal Board, Kairana 1950 SCR 566, in which specific directions were issued to the Municipal Board not to prohibit the Petitioner from carrying on his trade and to withdraw his pending prosecution. That was a case under Article 32 of the Constitution of India, but Clause (2) of that Article and Clause (1) of Article 226 are in many respects similar; and in fact the powers of the Supreme Court are at present more restricted than those of a High Court, as Article 32 relates to the enforcement of the rights conferred by Part III and Article 226 'relates to such enforcement and to the issue of directions, orders and writs for any other purpose. In that case, the submission that as the Petitioner had an adequate remedy by way of appeal, a writ in the nature of 'mandamus' or 'certiorari' should not be granted was repelled in these words: There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs but the powers given to this Court under Article 32 are much wider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owers must be adopted. This does not connote that High Courts are given unlimited power to do anything by their writs or orders under Article 226 and a Full Bench held in - Emperor v. Jasingbhai 52 Bom LR 544 (FB) that some limitation must be placed by them on their own powers. At the same time, the power conferred by Article 226 is ample and wider than the power of issuing English prerogative writs. That being so it would not, in my opinion, be correct to limit that power to the Indian law which preceded the Constitution or to the English common law. Article 372 provides that all laws in force are subject to the provisions of the Constitution; and the power conferred by Article 226 can only be altered by the legislative process set down in Article 368. Article 226 is, as it stands, an overriding and unfettered article and it is not made subject to any existing laws or to any restrictions imposed by law: - Elbridge Watson v. R.K. Das AIR 1951 Cal 430. 92. I would accordingly quash the orders of the Additional Deputy Commissioner and the Rent Controller, who were not justified in withholding permission to the Petitioner to give notice of termination of tenancy to the second Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore a Division Bench of this Court consisting of my Lord the Chief Justice and myself. We were of the opinion that having found that the need of the Petitioner was a genuine one, neither the Rent Controller nor the Additional Deputy Commissioner was justified in withholding permission to the Petitioner to give notice to Respondent 2 to terminate his tenancy. We were also of the opinion that it was not open to the Rent Controller to say that the Petitioner would be able to meet his requirement by constructing a go-down on the site in his possession because there is no provision in the Rent Control Order which enables the Rent Controller to require the landlord to spend money and construct a structure for meeting his own requirement. Accordingly, we came to the conclusion that the orders of the Rent Controller and the Additional Deputy Commissioner were unsustainable and must be quashed. We were, however, not in agreement on the question whether after quashing the order we should grant the permission ourselves or at least make a direction to the Rent Controller to accord permission to the landlord to terminate the tenancy of Respondent 2 or simply leave the matter there after quashin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;mandamus' was not available for quashing an order of that kind and that the petition must be dismissed. The argument that the petition should be dismissed was repelled and it was observed: ...we are clear that apart from the power to issue writs specifically named in Article 226, the High Court has been expressly empowered to issue any 'directions, orders or writs' for the enforcement of any of the rights conferred by part III and for any other purpose. It is difficult to appreciate Shri Naik's argument that 'directions, orders or writs' can issue only in the circumstances in which the writs named specifically can issue because that argument, if accepted, would so restrict the meaning of the words 'directions, orders or writs' as to render them otiose. It is commonplace that effect must be given to every provision of a statute and that no word should be regarded as a surplusage unless that would lead to an absurdity. No absurdity results because of the construction we place on this Article. Again, the power conferred by Article 226 ton High Courts is discretionary. It would, therefore, not, in our opinion, be right to read limitations in the wid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for this Court to substitute its own orders, because this Court does not exercise the jurisdiction of an appellate Court which has always the authority of substituting its own operative orders for those of the lower Court. Their Lordships of this Court, who decided the previous case referred to above, have not made any reference to any precedent for the kind of order passed by them. It is for the tribunal which has been entrusted with exercise of jurisdiction under the statute to exercise its powers and not for this Court. The function of this Court in its extraordinary jurisdiction under Article 226 of the Constitution must be confined to pointing out the true legal position and either quashing the orders or letting those orders stand, as the case may be. It is not for this Court to exercise such powers as are ordinarily exercisable in its appellate or revisional jurisdiction. The Court, while entertaining an application for a writ like the present, does not act either under its appellate or its revisional jurisdiction. 101. In - W.R. Pandit v. Second Additional District Judge Nagpur ILR (1951) Nag 94, to which I was a party, the view taken by West J. in - Shiva Nathaji v. Joma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for issue of a writ of 'certiorari' is not an appellate power. I would accept for the purpose of this discussion that the powers of this Court under Article 226 are not appellate powers in the strict sense of the word and that they might be regarded as supervisory powers. Even then, I am of opinion that making a direction to the inferior tribunal or substituting the order of this Court for that of the order of the inferior tribunal is permissible under the article when such an order is of a consequential nature. In construing the provisions of Article 226, we cannot rely implicitly upon the English precedents because Article 226 is cast in very wide terms. So, unless we find something in the article itself which would justify us in restricting the amplitude of the powers flowing from it, we would not be right in giving it a restricted meaning as has been suggested in - Sagatmal's case ILR (1951) Nag 769. 105. English precedents cannot be regarded as sure guides even though Article 226 makes a reference to the ancient prerogative writs. The mere specification of these writs in Article 226 cannot control the interpretation of that article or compel us to so interpret it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l matter arising therein, does not belong to that jurisdiction. The writ of 'mandamus' was a command issuing in the King's name and from the Court of King's Bench, and directed to any person, corporation, or inferior Court of jurisdiction, within the King's dominions, requiring them to do some particular thing specified therein, which appertained to their office and duty. This writ was thus used to compel the admission or restoration of any person to a public office, or to compel the holding of a Court, or to the performance of any other public duty by a person, corporation or an inferior Court concerned. The writ of 'quo warranto' was a writ of right for the King against persons who claimed or usurped any office, franchise, liberty or privilege belonging to the Crown to enquire by what authority they maintained their claim, in order to have the right determined. When a writ of this kind was issued, a person concerned had to appear before a Court and justify his claim. 107. A review of English cases would show that the writs, and in particular writs of 'certiorari', prohibition and 'mandamus', were sought by persons who wanted their gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the High Court would, but for the provisions of the last foregoing sub-section, have had jurisdiction to order the issue of a writ of mandamus requiring any act to be done, or a writ of prohibition prohibiting any proceedings or matter, or a writ of certiorari removing any proceedings or matter into the High Court or any division thereof for any purpose, the Court may make an order requiring the act to be done, or prohibiting or removing the proceedings or matter, as the case may be. (3) The said orders shall be called respectively an order of mandamus, an order of prohibition and an order of certiorari. I have reproduced them here because I would presently compare them with the provisions of Article 226 of the Constitution. Dissatisfaction was expressed even regarding this legislative reform on the ground that it did not go far enough. Lord Justice Denning was one of those who criticised the existing methods in his Hamlyn lectures. He said, 'Just as the pick and shovel are no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice as occasion demanded. 110. What are next to be considered are certain decisions of the Supreme Court. The first of these is - Bharat Bank Ltd., Delhi v. Employees of Bharat Bank Ltd., Delhi AIR 1950 SC 188. In that case their Lordships stated that a writ of 'certiorari' is of a limited character and that beyond quashing an order of an inferior tribunal it could direct nothing. I may, however, point out that their Lordships were there dealing with an appeal from an order passed by the High Court in the exercise of its powers under Section 45, Specific Relief Act, while in the present case we are dealing with a matter under Article 226 of the Constitution, which is much wider in its terms than Section 45, Specific Relief Act. 111. Then comes the first decision of their Lordships under the new Constitution, - Rashid Ahmed v. Municipal Board, Kairana AIR 1950 SC 163. In that case their Lordships were considering the scope of Article 32 of the Constitution. While dealing with the article, they said that the powers given to the Supreme Court under Article 32 are much wider & are not confined to issuing prerogative writs only. It was contended before their Lordships that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to me, therefore, that the decision does not preclude us from holding that a direction can be issued to an inferior tribunal or an order of its own substituted by the High Court for that of the inferior tribunal. 114. Parry's case 1952 SCJ 275 is a decision of three Judges of the Supreme Court. All of them were parties to the decision in Rashid Ahmed's case AIR 1950 SC 163, but made no reference to it in their decision in this case. While holding that the High Court is not justified in issuing a writ of 'certiorari' to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous, they did not hold that the High Court is precluded from issuing a suitable direction or order whenever the interests of justice so require. This decision also does not come in the way of our holding that our powers are not limited to issuing writs, only. 115. It was suggested in the course of arguments that if the High Court brought before it the records of an inferior Court for quashing its order, it exercises its powers in the matter of issuing a writ of 'certiorari' and that its powers were, therefore, confined only to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al remedies is over and above the ordinary law because it is contained in the supreme law of the land. No Act of the Parliament or of a State Legislature can limit or fetter the power conferred by Article 226. The position is different in England, because the British Parliament, being supreme, can give finality to the decision of a tribunal and take away the powers of the High Court to issue orders in the nature of 'mandamus, certiorari' or prohibition. Even then it has been held by the Courts in England that the King's Bench Division retains powers to enquire whether an inferior tribunal has acted within its jurisdiction or not: see - Colonial Bank of Australasia v. Willan 5 PC 417. I am, therefore, of opinion that the decisions in India prior to the commencement of the Constitution and the decisions from English Courts on this question are of little Value' in considering the matter now before us. 118. No doubt, while exercising powers under Article 226 of the Constitution, various High Courts in India have chosen to place restrictions on their powers because they do not wish that the powers conferred on them by the article should be treated at the option of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chief Justice and Mudholkar J. They agreed that the order of the Rent Controller refusing to grant permission to the landlord to determine the tenancy and the order of the Additional Deputy Commissioner affirming it must be quashed and that on the finding of fact reached by the Rent Controller he was bound to grant the permission. They agreed that these decisions are of judicial tribunals. They, however, differed as to the, form of the final order to be passed. As nothing remained to be done by the Rent Controller except to grant permission to the landlord which that officer was bound to grant on the facts found by him in view of the mandatory provisions of Clause 13, Central Provinces and Berar Letting of Houses and Rent Control Order Mudholkar J. proposed that the orders be quashed and requisite permission be granted to the Petitioner while the learned Chief Justice was of the view that the High Court has no jurisdiction to pass such an order and it must rest content with quashing the orders of these tribunals. This, according to him, is the scope of a writ of 'certiorari'. It is said that only this writ can be issued under Article 226 of the Constitution to remove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch stated: The power of this Court to issue a writ in the nature of 'mandamus' is included in the power to issue directions, orders, or writs which power cannot by any means be said to be limited to the issue of only the well-known prerogative writs under common law. The primary object of Article 22(1) is to afford effective protection to the rights of the subject where recourse to ordinary law may prove inadequate for the purpose. If the ends of justice so require, the Courts have power not only to order the undoing of what was done in contravention of law but to direct the performance of what ought to have been done, in the first instance. One of the objects of this power is to ensure speedy justice. This view was adopted in a number of cases of this Court. 122. In Sagatmal's case ILR (1951) Nag 769 the landlord was occupying a rented house for his 'bona fide' residence and was carrying on a 'bona fide' business of his own in another rented house in Nagpur. He sought permission under Clause 13(3)(vi)(a), (b) and (c) of the Order. The Rent Controller found that the landlord was residing 'bona fide' in a rented house and was carrying on ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny rate to direct the Rent Controller to grant the permission. In - Rashid Ahmad v. Municipal Board, Kairana AIR 1950 SC 163, their Lordships did not stop with merely pointing out the true legal position but issued directions' to the Respondent to withdraw the prosecution pending' against the Petitioner and not to prohibit him from carrying on his trade. Without these directions the decision of the Supreme Court would have been of little help to the Petitioner. 124. In - Jethmal v. The Additional Deputy Commissioner Arvi Mis. Petn. No. 1719 of 1951 (Nag), the learned Chief Justice and Mudholkar J. felt the necessity of passing consequential orders to effectuate their decision. There a house was allotted by the Additional Deputy Commissioner without making an inquiry into the contention of the landlord that he needed the house, and the allottee was placed in possession. The order was quashed and the Additional Deputy Commissioner was ordered to restitute possession of the premises to the landlord within 15 days from the receipt of the order of the Court. 125. In - Rohini Sharan v. Govindprasad Mis. Petn. No. 14 of 1952 (Nag) (By C.J. and Mudholkar J.) the landlord had obta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee was directed to reinstate the Petitioner. In - New Motor Transport Co. Drug v. Regional Transport Authority, Raipur ILR (1952) Nag 69, decided by Rao J. and me the order of the Regional Transport Authority was quashed as it was contrary to the decision of the appellate authority, and directions were issued to effectuate the decision of the appellate authority by cancelling the permits granted to the Respondent with a further direction not to grant any further permit, even a temporary one, pending the disposal of the application for grant of a regular permit. 128. In - Badamibai v. P.A. Tobin 1952 Nag LJ 426 the Division Bench (Hidayatullah and Choudhuri JJ.) held that the evidence of the engineer of the landlord "was prima facie conclusive for the application Clause 13(3)(vii) of the Order" though the Additional Deputy Commissioner had not accepted this evidence and had relied on another engineer who had given contrary evidence. There is thus an interference with a finding of fact. The Division Bench did not stop with indicating the true interpretation of law but decided what the order of the Rent Controller should be, not on the view of facts-taken by the tribunals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In re C.P. & Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 AIR 1939 FC 1 at p. 5, a constitution is a "living and organic thing". Our Constitution is the expression of the will of the people to secure to all the citizens justice, liberty, equality and fraternity. We have, therefore, to interpret the Constitution so as to give effect to this will of the people. 133. The object or purpose of construction or interpretation is to ascertain the intention of the Constitution makers and to make it effective. The intention of the Legislature as embodied in the Statute constitutes the law thereof.... The word 'intent' includes two concepts - that of purpose and that of meaning.... Legislative purpose is the reason why the particular enactment was passed by the Legislature.... In seeking to ascertain the legislative purpose the Court will resort, among other things, to the circumstances existing at the time of the law's enactment, to the necessity for the law and the evil intended to be cured by it, to the intended remedy, to the law prior to the new enactment and to the consequences of the construction urged. - Crawford's Construction of Statutes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to that exercised before the Constitutionals conferred by Articles 226 and partly by 227. As already, stated, it is not necessary to examine fort the purpose of this case the scope of Article 227. What we have to consider is whether the High Court would exceed its jurisdiction under Article 226 in passing consequential orders or giving directions to effectuate its decisions under that Article. 137. Under Article 32(2) the Supreme Court has power to issue directions or orders or writs including writs in the nature Of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by part HI of the Constitution. Article 139 provides that the Parliament may by law confer on the Supreme Court these powers for any purposes other than those mentioned in Article 32(2). Notwithstanding anything in Article 32, Article 226 confers all these powers on every High Court not only for the enforcement of any of the rights 'conferred by Part III, but "for any other purpose." 138. We have, therefore, to first ascertain the legislative meaning and, if necessary, the legislative purpose to ascertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in interpretation Clause in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things, as they signify according to their natural import but also those things which the interpretation Clause declares that they shall include. The word "includes" has an extending force and does not limit the meaning of the term: Nasibun v. Preosunker Ghose 8 Cal 534. In my opinion it would not be correct to translate it as "means", though such construction may be permissible in certain circumstances. The words "or writs including writs" were added to express the power as widely as possible. In the absence of these words it was possible to put a construction restrictive of the power of the High Court to issue directions or orders in the nature of the specified writs. The expression "in. the nature of" indicates that a High Court can issue writs which are similar to the specified writs. These words do not qualify directions and orders as contended by the learned Counsel. On a plain reading of the Article, I am of the view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to law on the ground that "it would in effect be a direction as to the manner or particular method in which he should conduct the trial." Evidently a further appeal was not provided against the order of the appellate Court. Rex v. Wong Tun. The Queen v. Adamson (1875) 1 QBD 201 was relied on. It was there stated that "in the absence of express statutory provision the Queen's Bench had no appellate jurisdiction to review the decision of magistrates who have once heard a case and decided it in a matter within their jurisdiction". This extreme view is not adhered to in Canada and is not accepted in this country. It is not accepted even in England, In - The Queen v. Adamson, Cockburn C.J. examined the evidence and the circumstances of the case and observing that "the magistrates must have acted upon a consideration of something extraneous and extra-judicial which ought not to have affected their decision" the Chief Justice held that it amounted to declining the jurisdiction. The proceedings were quashed. Referring to a number of latest decisions it was held in - John East Iron Works, Ltd. v. Labour Relations Board that the writ can issue to correct an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith jurisdiction the writ of certiorari cannot issue to correct error of law, was overruled. The learned Chief Justice observed: I think that the decision to which we are now coming will be very beneficial because so many tribunals are now set up, all of whom, I am certain, desire to do their duty in the best possible way, but they are often given very difficult sets of regulations and statutes to construe. It must be for their benefit and I have no doubt they will welcome it, that this Court should be able to give them guidance. We can give guidance to them if they make their orders speaking orders, so that this Court can then deal with them if they are brought before the Court on certiorari (p. 278). 145. This decision was affirmed by the Court of Appeal in - Northumberland Compensation Appeal Tribunal v. R. ex parte Shaw (1952) 1 All ER 122 Denning L.J. made the following weighty observations: Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law, and several learned judges have said as much. But the Lord Chief Justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt to examine the decisions of these tribunals as stated by their Lordships of the Privy Council in - Secy. of State v. Mask and Co. AIR 1940 PC 105. 147. Before the Constitution the administrative tribunals which had to act judicially or quasi-judicially were not amenable to the supervision of the High Courts. The jurisdiction of the High Courts to question any judgment of an inferior Court, subject to its appellate jurisdiction, otherwise than by way of appeal or revision was expressly taken away by Section 224(2), Government of India Act, 1935. If, therefore, an appeal or revision was barred by any Act the High Court had no power of interference, however erroneous the decision may be. The Presidency High Courts had no doubt limited power to issue the specified writs but that power could be taken away by statute. 148. When a statute provides that the decision of the statutory tribunal is final, it only means that it is not liable to a challenge in a civil Court for error of decision. As Lord Thankerton stated in - Secretary of State v. Mask and Co. AIR 1940 PC 105 (Cit. sup. at p. 110). It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently discharge their duties in accordance with law and quite often abused the power vested in them. Judicial decisions were frequently influenced by the Executive. This condition of the country continued after the Independence. Graphic description is to be found in an article on 'Judicial Control of Administrative Act in India' by Shri Harkose of the Faculty of Law, Lucknow University, published at page 9 of the January issue of the Supreme Court Journal of 1952: "Today in India the need for judicial control is perhaps at the maximum. The infant Republic is born amidst manifold maladies. It has a legacy of centuries of foreign hegemony. The political party that has captured power both in the Centre and in the states was geared to fight foreign domination. It has thus a steamroller organization and the freedom of opinion of the individual party member cannot be effectively exercised in the Legislature. At the same time there is no organised and effective opposition against the majority party. Even though a Federal Republican form of Government with a written - elaborately written - Constitution has been adopted, the English Parliamentary Executive was preferred to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, unless the Statute gives an appeal. The High Court proceeds on the footing that if Parliament has thought fit to entrust jurisdiction on all these new matters to new tribunals without any appeal from them, then, so long as the tribunals do not exceed or abuse their jurisdiction, the High Court should not interfere with them. If a tribunal should come to a wrong conclusion on the facts, or, indeed, if there is no evidence on which it could come to its conclusion the High Court cannot interfere: nor, if the tribunal comes to a wrong conclusion in point of law, can the High Court interfere. So long as the tribunal keeps within its jurisdiction, and is not guilty of any flagrantly unjust procedure, its decision is final both on facts and law. The learned author cited some striking instances to demonstrate the necessity of interference by superior Courts with the decisions of the tribunals. He concluded his lectures with these observations: Reviewing the position generally, the Chief point which emerges is that we have not yet settled the principles upon which to control the new powers of the executive. No one can suppose that the executive will never be guilty of the sins that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deas in this country, even though in England itself these forms and procedure have been abolished by the Administration of Justice (Miscellaneous Provisions) Act, 1938 (Geo VI ch 63) and although the original view of the scope of the prerogative writs has undergone a radical change. In the absence of uniformity in the scope of the writs of certiorari in the several countries it would be incorrect to contend that the power conferred by Article 226 is subject to the limitations of the common law writs of certiorari in England. The following observations of Mukherjea J. made in delivering the leading judgment in - Charanjit Lal v. Union of India AIR 1951 SC 41 at p. 53 Col. 2 are frequently lost sight of. Article 32 of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application of the Petitioner cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for. In - Rashid Ahmad v. Municipal Board, Kairana 1950 SCR 566 (cit. sup.) their Lordships of the Supreme Court have held that the powers under Article 32 are much wider and are not confined to issuing the speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of law as well as of fact, and its power is not confined to correct only errors of jurisdiction as contended by the other side. As stated by their Lordships of' the Supreme Court in - Ebrahirri Aboobakar v. Custodian General AIR 1952 SC 319 at pp. 332-333. Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior Court as a Court of error, but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties. Such jurisdiction, is inherent in its very constitution as a Court of appeal. It cannot be disputed that the High Court r can under this Article not only interfere to correct errors of jurisdiction but can also interfere to correct errors of law. The latter is a function of an appellate Court. Section 100, Code of Civil Procedure gives such power to the High Court and if Clause (c) of Section 100(1) is attracted to interfere with the findings of fact. It is possible for the High Court to exercise some appellate power under this Article without being an appellate Court as ordinarily understood. 156. As already stated, even before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dently a miscarriage of justice. There is no other remedy available to the aggrieved suitor except under Article 226. Are we going to exercise the power under Article 226 or are we going to be helpless spectators of this miscarriage of justice by a tribunal within our territorial jurisdiction? Must we put limitations on our power to prevent us from remedying this travesty of justice merely because of the real or supposed limitations of the prerogative writs in England? The opinion of Denning L.J. in - Northumberland Compensation Appeal Tribunal v. R. ex parte Shaw 1952-1 All ER 122 (cit. sup.) and his conclusions in his lectures on "Freedom under the Law" are very instructive. His views are entitled to great respect and we cannot belittle them because we do not agree with him. He demonstrates necessity of having an effective control on the administrative officers and tribunals to prevent abuse of power. The necessity is all the greater in our country. In - Janab N.S. Sattar v. The State of Madras 1952-7 Bom LR (Mad) 65 (cit. infra) a petition of certain congress workers which could not be legally taken into consideration was utilized by the Government in an appellate proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outburst of a lecturer. The views expressed in Hamlyn Lectures are also to be found in his judicial pronouncements. We have not yet settled the principles of the exercise of this extraordinary jurisdiction under Article 226 though we have been freely referring to the English precedents in trying to formulate these principles. The English and American precedents may afford us valuable guidance in settling these principles, but they do not control the interpretation of a written Constitution and are not of much assistance in ascertaining the legislative intent of the Constitution makers. In my view, it is proper to interpret Article 226 as conferring power of widest amplitude on the High Courts; and this power must be invoked to redress wrongs and for passing suitable orders to effectuate the decisions of this Court. 161-162. The next contention is that writ of mandamus cannot issue to supplement a of 'certiorari', on the ground that a 'mandamus' does not command the doing of a particular, judicial act as the judicial act by its very nature is discretionary. Reliance is placed on several passages from the Law of High Prerogative Writ of Mandamus by Tapping, publishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the licence or directs them in terms to grant a renewal of the licence, because when the matter comes before the Justices again they can only deal with it according to the provisions of the statute; and if no objection was made to the renewal at the first general annual licensing meeting, the Justices may find that they had no jurisdiction to adjourn the hearing of the application but were bound to grant a renewal. It was held that the Justices had no jurisdiction to adjourn the hearing of the application as there was no valid objection to the renewal. It was further held that the Queen's Bench had jurisdiction to direct the authority to do what it should have done in the first instance. It is true that the direction to renew the licence was not issued but that was because the Petitioner had prayed only for rehearing of her case. Not one English precedent was brought to our notice in which it was held that the order proposed by Mudholkar J. in the circumstances of this case was in excess of the jurisdiction of the King's Bench. 165. Now I will refer to some of the decisions relied on by the Additional Government Pleader. Other decisions have been examined by Hemeon J. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that the order dated 3-1-1950 was bad in law, all that the High Court at that stage could do was to quash the order and leave the Regional Transport Authority to hear together and decide the applications dated 14-10-1949 and 18-11-1949 on merits, on following the procedure prescribed by the Motor Vehicles Act. Not only the parties before the High Court but other operators who would choose to intervene in the proceedings were entitled to be heard. It was not a case of merely deciding the rights of the parties, and of passing consequential orders to effectuate the decision. The suitability of the vehicles of the claimants and their capacity to operate the service to the advantage of the public had to be considered. Without further enquiry and without hearing V. in answer to the application dated 18-11-1949 the authorities could not determine the person to whom the necessary permits could be granted. With the material before them the High Court could not decide all these questions even as a Court of appeal. The directions were, therefore, as their Lordships of the Supreme Court characterised, in excess of jurisdiction. That does not mean that in no case has the High Court any juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with jurisdiction, on the mere ground that such decision is erroneous, and that it can issue only on the ground of either a manifest defect of jurisdiction in the tribunal that made the order or of a manifest fraud in procuring it. The question whether the statute has taken away certiorari was not examined. The concession was made apparently in view of the decision in - Colonial Bank of Australasia v. Robert Willan (1874) LR 5 PC 417 referred to by their Lordships of the Supreme Court. There the power of the Supreme Court to issue the writ was taken away by a statute. Their Lordships set aside in appeal the order of the Madras High Court, passed on 1-4-1949 partly setting aside the decision of the Labour Tribunal on the ground that it was based on an erroneous view of law though it was passed with jurisdiction. This is a departure from Willan's case. 168. Janardhan Reddy v. State of Hyderabad AIR 1951 SC 217 has no bearing on the matter under consideration. The applications under Article 32 were dismissed on the ground that the convictions of the Petitioners which had acquired finality in the fullest sense of the term when the Constitution came into force could not be challen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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