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TMI Blog1943 (5) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... operly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior Courts in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign's superior Courts, and in particular the Court of King's Bench, possess and exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, and operates, within certain limits, in British India. 3. The appellants are ryots of three villages included in the Parlakimedi estate in the district of Ganjam in the Northern Circars. The respondents are (1) the Zemindar of Parlakimedi and (2) the Board of Revenue at Madras. 3. In October, 1925, the zemindar applied, under Chap. XI of the Madras Estates Land Act, for the settlement of rent in respect of these villages and by a supplemental application in March, 1926, which was inspired by a decision just previously given by the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion, viz. whether a writ of certiorari provides a proper remedy if the Board of Revenue had exceeded its powers is a question of general importance and of considerable difficulty. Their Lordships have thought it right to enter upon this matter and to decide it, notwithstanding that, if the High Court of Madras is right in saying that the limitation to a twelve and a half per cent. increase does not apply in the present case, the broader question as to the use of the prerogative writ might be left undecided. In view of this wider issue, their Lordships requested the Secretary of State for India to interest himself in the appeal and to provide assistance in the argument, and their Lordships are much indebted to the counsel instructed by the India Office on behalf of the Governor General in Council for contributing; their help to a somewhat involved investigation. 8. The view that they had jurisdiction to issue the writ of certiorari in the present case was taken by the High Court of Madras as the result of a line of recent decisions in that Court. At one time it had been held that the Board of Revenue exercised its functions under Chap. XI of the Madras Estates Land Act as a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of exemption was touched on by Madhavan Nair J. This case was, however, in Muniswami Chetty v. Board of Revenue, Madras(1931) I.L.R. 55 Mad. 137 taken to have decided (p. 149) : that, in the absence of express statutory prohibition, this High Court possesses the same jurisdiction in certiorari as the Court of King's Bench in England. 12. In that case the writ was sought in respect of the removal of the applicant from membership of a Panchayet Court at Tirupathi, but it was refused on the merits. Zamindmini of Mandasa v. Ryots of Mandasa Zamindari (1932) I.L.R. 56 Mad. 579, like the present case, concerned the settlement of rent in the Ganjam District under Chap. XI of the Madras Estates Land Act, and a writ of certiorari was ordered to issue to the Board of Revenue in respect of the Board's action under Section 171 of the Act in order that certain lands should be excluded from the settlement proceedings. The reasoning of the judgments in that case is to the effect that certiorari may lie to quash proceedings not only of civil Courts but of executive authorities when entrusted with the duty to determine questions affecting the rights of subjects. Having correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven by that charter it is now vested in the High Court by virtue of the Indian High Courts Act, 1861 (24 25 Vic. c. 104, Section 9) and the statutes repeating this provision (Indian High Courts Act, 1865, 28 29 Vic. c. 15, Government of India Act, Section 106). The Supreme Court at Madras inherited the powers formerly possessed by the Mayor's Court and Recorder's Court, but the right to issue cerliorari beyond the Presidency-town to Indians or to Courts of the Company in the mofussil was not among these powers : their extra-local jurisdiction was confined to British subjects, apart from a limited jurisdiction over persons in the service of the Company or of British subjects (.37 Geo. III, c. 142, Section 10). If the power now claimed is to be found in the charter of 1800 it must, their Lordships think, be found either1 in Clause 8 thereof or in the reference which the charter and the statute of 1800, 39 40 Geo. III, c. 79 (Section 2) make to the powers of the Calcutta Supreme Courta reference repeated by Section 17 of 4 Geo. IV, c. 71 (1824). Section 2 of the Act of 1800 authorised His Majesty by charter to establish at Madras a Supreme Court : with full power to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith modifications made from time to time, to Hindus as well as to Moslems. Appeals from the civil Courts went to the Sudder Dewani Adalat, and appeals from the criminal Courts to the Sudder Nizamat AdalatCourts which consisted until 1801 of the Governor-General and members of the Council. The Company's Courtscivil or criminalhad no jurisdiction over British subjects. These were before the Acts of 1813 and 1833 few in the Districts of Bengal and Bihar, and mostly in the service of the Company. It was not even considered that the Company had any legal authority to make regulations binding on British subjects, who were not its servants. A legislative power with a general jurisdiction over British subjects and Indians alike was first established in India by the Act of 1833. Meanwhile, the device was resorted to of refusing permission to any British subject to reside more than ten miles from the capital unless he entered into a bond to submit to the jurisdiction of the Zillah Judge in civil suits not involving more than five hundred rupees. (Bengal Regulation III of 1793, Section 9 ; XXVIII of 1793, Section 2 ; Madras Regulation II of 1802, Section 6). 17. In 1773 by the Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt laws, usages, rights and privileges. The Act fundamentally altered the scope and conditions of the Supreme Court's jurisdiction, superseding to a great extent, but without formally amending, the charter of 1774. 19. The terms of the Madras charter of 1800, with which their Lordships are now immediately concerned, are intended plainly enough to incorporate the amendments of 1781 and thus to produce the same general result in Madras as in Calcutta. The Mayor's Court had continued in Madras to exercise its jurisdiction under a charter of 1753 until it gave place in 1798 to the Recorder's Court, authorised by the statute of 1797 (37 Geo. III, c. 142) ; the Recorder, Sir Thomas Strange, became in 1800 the first Chief Justice of the new Supreme Court of Madras. 19. The effect of the Act of 1781 is, therefore, germane to the construction of the charter of 1800. It exempted the Governor-General and Council from the Court's jurisdiction in respect of their official acts ; it deprived the Court of jurisdiction in matters of revenue ; it provided that no one was to be liable to its jurisdiction by reason of being a landholder or farmer of land or land rent; that no on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Such justices were not to sit on any Court of Oyer and Terminer unless called on so to do. Their appointments were to issue under the seal of the Supreme Court. By Section 153 all convictions by any justices of the peace out of the Court of Oyer and Terminer were made removable by writ of certiorari within six months into the said Court. [Similar provision was made for Madras and Bombay in 1807 (47 Geo. III, Section 2, c. 68, Section 4)]. In 1813 the statute 53 Geo. III, c. 155, recited in Section 105 : whereas His Majesty's British Subjects resident in the British Territories in India, without the Towns of Calcutta, Madras and the Town and Island of Bombay, are now, by Law, subject only to the Jurisdiction of His Majesty's Courts at Calcutta, Madras and Bombay respectively, and are exempted from the Jurisdiction of the Courts established by the said United Company within the said Territories, to which all other Persons, whether Natives or others, Inhabitants in the said Territories without the Limits of the Towns aforesaid, are amenable.... 22. It went on to provide that in cases of assault, forcible entry or other injury accompanied with force a native of India m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey know of no case in which the Supreme Court issued either certiorari or mandamus to a country Court. The writ of habeas corpus came to be used in the form ad testi ficandumthat is as a mode of summoning witnessesin the course of the Supreme Court's admitted jurisdiction over Calcutta and over British subjects [cf. Deverall's case (1839) Moroton 184,]. Whether the writ ad subjiciendum was issued beyond the local jurisdiction only to British subjects, or to others for the purpose of protecting the liberty of British subjects, or more generally in aid of the Court's local jurisdiction within Calcuttais a question to which the answer is not altogether clear. But this writ would not ordinarily, if ever, issue to a Court, and their Lordships know of no case after 1781 until the Bombay case of 1829. In re the Justices of the Supreme Court of Judicature at Bombay (1829) 1 Knapp I to be hereafter mentioned, in which this Writ was used by any of the Supreme Courts so as to interfere with the jurisdiction of any Court of the Company. It would seem probable that the exercise of such jurisdiction in Bengal after 1781 would have produced a definite reaction on the part of the Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rine and practice of tazir or discretionary punishment and with the crime of robbery with violence. The Chief Civil and Criminal Courts of Appeal, called the Sudder Adalat and Sudder Faujdari Adalat, sat in the town of Madras, and as first constituted consisted of the Governor and Council. Below these, four Provincial Courts of appeal were established whose members, as Judges of the circuit Courts, tried criminal cases of importance : below them were the Zillah Judges with their registers or Assistant Judges; and there were Indian judicial officers with various powers and styles for the smaller work. In Madras, as in Bengal, neither the Supreme Court Judge nor the European Judicial Officer in the country Courts had at this time any knowledge or means of knowledge of the Hindu or Mahomedan Laws independently of the pandits and maulavis ; except perhaps for Halheds Gentoo Code, published in 1776, Hamilton's translation of the Hedaya in 1791, and Sir William Jones' translation of Manu in 1794, and of the book on the Mahomedan Law of inheritance Al Sirajiyyah in 1792. Cole-brooke's Two Treatises was not published till 1810. Jagannatha (Colebrooke's Digest) was pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part, of Great Britain called England, as far as circumstances will admit. 26. The argument for the appellants is that this clause gave jurisdiction to the Supreme Court to issue the writ of certiorari to a Court of the Company anywhere throughout the province. The only words which can for this purpose be relied on are those of the concluding passage. Their Lordships think that the passage cannot be confined to the town and factories and must be read with reference to the territories subject to the Government of Madras. On the other hand, it is these words that have the special qualification as far as circumstances will admit. The clause is substantially a repetition of the first half of Clause 4 of the Calcutta charter of 1774, but the qualifying words just cited are new : the second half of the Calcutta clause reappears in Madras as Clause 9. Their Lordships will construe the clause as it appears in the Madras charternot only because the context in the confused Calcutta charter adds to the difficulty, but also because the principles established by the Act of 1781 are intended to find place in the charter of 1800. It is one of the early clauses and corned among provisions d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnised by the Act of 1781the Governor and the members of Council, like the Judges, are not to be liable to arrest; nor sued in respect of their official acts; the Court is to have no jurisdiction as to revenue; no one is to become subject to its jurisdiction by being a landholder, farmer of rent, etc. ; employment by the Company or by a British subject is not to render any person amenable to the jurisdiction in any matters save for wrongs and trespasses only. Judicial officers and persons acting under their orders are not to be sued on account of their judgments or decrees. Clause 33 gives a jurisdiction in equity over those persons previously specified for its ordinary civil jurisdiction. The Court's criminal jurisdiction is conferred by Clauses 34 and 35 ; the former made it a Court of Oyer and Terminer and gaol delivery for the town and factories subordinate thereto : the latter gave it jurisdiction to try British subjects for crimes committed anywhere in the province or in any Native State in alliance with the Government of Madras. The ecclesiastical jurisdiction given by Clause 37 raised certain points of difficulty which need not here be referred to, but it applied to per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been received in Calcutta in July, 1782 (cf. Morton, p. 125). of. Stephen : Nuncomar and Impey (1885) v. II, p. 139. 30. On the view taken on this point depends in some measure the answer to the question whether Clauses 21, 22, 33 and 34 have any, and if so, what, bearing upon Clause 8. Thus in Nataraja's case, already cited, Sadasiva Ayyar J. held that the powers given by Clause 8 were given to the Judges not merely in their individual capacity but as constituting the Supreme Court, and that Clauses 21, 22, 33 and 34 did not limit the powers given by Clause 8. On the first point their Lordships agree. It is an important feature of the clause that it speaks of the individual Judge, but this, in their Lordships' view, it clearly does as part of the exposition of the nature and jurisdiction of the Court of which he is to be a member. The view so dubiously based on the supposed intentions of a number of persons consulted upon the draft of the Calcutta charter of 1774 fails as a matter of interpretation of the charter of 1800. Without claiming to construe the former document as it stood before the Act of 1781a task long recognised to be difficult almost to the point of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht have occasion to act at allthis being the status and authority with which they were armed without as well as within the town. The concluding part of Clause 8 makes no reference to prerogative writs, but is a broad and summary reference to the whole of a King's Bench: Judge's jurisdiction and authority. It cannot be construed as restricted to such powers only as were peculiar to the King's Bench and were not shared by the other superior Courts of common law. Is it really the effect of these words to subject the Indian inhabitants throughout the province, and all matters of dispute between themselves, to the same jurisdiction as the King's Bench would apply to the inhabitant of an English county? Do the words put the Indian living at Ganjam equally under this jurisdiction with the Indian inhabitant of the Presidency-town, because they say-that the Judges within and without the town are to have the jurisdiction and authority which a Justice of the King's Bench has in England? Their Lordships think that there can be but one answer to these questions. Jurisdictionif not a word of many meaningsis a word which may be used with either a wider or a narrower connotatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consistent with, the other provisions of the charter. That any prerogative writ can be employed at all, apart, at least, from Clause 47, involves an assumption as to the general authority and capacity of the Court, and it is this which by reference to the King's Bench is declared in Clause 8. But their Lordships are not of opinion that the Supreme Court would have had any jurisdiction to correct or control a country Court of the Company deciding a dispute between Indian inhabitants of Ganjam about the rent payable for land in that district. As it was put in argument in the Bombay case of 1829 hereinafter mentioned (p. 38) : Though there are words in this charter giving to the court the authority of the Court of King's Bench, it is the nature of the authority which is described, and not the extent of the jurisdiction. In re the Justices of the Supreme Court of Judicature at Bombay (1829) 1 Knapp I. 34. While their Lordships will not here undertake to give a concise description of! the position of the Supreme Courts at the beginning of the nineteenth century, they will quote a passage from a letter which the Judges of Bengal addressed to the authorities in England in Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttaches, the jurisdiction of this Court is limited with regard to persons, not being British Subject, generally speaking, it is restricted with regard to the Natives (whether wisely or not is not for us to consider) to the Inhabitants of Madras, and the plea therefore very properly confines itself to those facts, upon which the Court is fairly called upon to say, whether the Defendants, being Natives, can be considered as Inhabitants of Madras, for the purpose of being subject to our jurisdiction upon the present bill. 36. Accordingly the plea to the jurisdiction was allowed. The suit was on the equity side of the Court, under Clause 31 of the charter of 1800, which gave jurisdiction over the persons subject to the Court's ordinary civil jurisdiction. 37. In Rex v. Goculnath Mullick (1824) Morton 220 a writ of habeas corpus had been directed to an Indian who claimed that he was not an inhabitant of Calcutta nor in any manner subject to the jurisdiction of the Court. Puller C.J., holding that it must be assumed to be true that the applicant was resident at Andool in Bengal and not in Calcutta, proceeded to say, with the concurrence of Macnaghten and Buller JJ. (p. 221): ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney. This decree was naturally pleaded by the defendant in bar of the suit brought in the Supreme Court and the plea was upheld. Ryan C.J. observed (p. 112) : In the case of a foreign judgment, or the judgment of an inferior Court if the Court had jurisdiction and the parties were properly before it, this Court would be unwilling to inter free on the merits. But this is not the case of a foreign judgment or the judgment of an inferior Court. It is a judgment of one of the tribunals of the country, and as such is entitled to the same respect from this Court which the judgment of this Court would be entitled to and would no doubt receive from the Courts of the Mofussil. 40. Grant J., on the contrary, thought that (p. 112) : the decrees of these courts must be looked upon in the Supreme Court as decrees of inferior courts in England, and of foreign courts which are considered on a footing with those of inferior courts by the courts of Westminster Hall. 41. Seton J. agreed (p. 112): with the Chief Justice in thinking that the decrees of the mofussil courts must be regarded as the decrees of the superior tribunals of the country and as of paramount authority with the decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussil Court was concerned. Government had arrested in Calcutta under an old Regulation of 1818 an Indian inhabitant of the town whom they confined in a gaol outside the town's limits. The gaoler, as often happens, was a medical man, a Dr. Fawcus, apparently a European British subject. Norman J. and the Appeal Court agreed in dismissing the application for habeas corpus on the merits. Norman J. expressed the view that the writ could have issued consistently with the ruling in The Bombay Justices case (supra). The Appeal Court said nothing about jurisdiction. The opinion of Norman J. as to jurisdiction led to the old English writ being restricted to the Presidency-town (Act X of 1872, Section 82), and in effect superseded (Act X of 1875, Section 148). The objection taken before him was, and! had to be, put as high as thisthat the writ could not be issued into the mofussil even to a European British subject. He regarded this contention with surprise, saying that the same reasoning would apply to any process. But the question is not whether a prerogative writ can ever issue into the mofussil, but to whom and in what cases it can issue if it be not directed in the exercise of the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjects. If that Sovereign, or the Company in exercise of the dewani right committed by him to them, chose to appoint an individual, or an executive authority such as the Board of Revenue, to give a decision between Indians in Ganjam upon particular matters of individual right, the Supreme Court by the terms of Clause 8 of this charter could have no more right to interfere by certiorari with such a decision than in the case of the decision of one of the Company's Courts. No distinction can for this purpose be drawn, in their Lordships' view, as regards the issue of prerogative writs, between a criminal, a civil, a revenue, or any other Court of the Company and an officer of the Company authorised to make a decision of a judicial character. 46. The last case to which reference will here be made was decided in 1913, shortly after Natarajia's case by the Calcutta High Court in Legal Remembtancer v. Matilal Ghose (1913) I.L.R. 41 Cal. 173. The question was whether the High Court had jurisdiction to punish the publisher of a paper for contempt of the Court of a Magistrate at Barisal. It was invited to do so on the principle of Rex v. Davies [1906] 1 K.B. 32, 33, which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entrusted with particular duties which include duties of a judicial character. The Mandasa cases, Raja of Mandasa v. Jagannayakulu and Zamindarini. of Mandasa v. Ryots of Mandasa Zamindari, show that, this view is in accordance with the opinion of the High Court. The Board of Revenue has always had its offices in the Presidency-town, and in the present case the Collective Board, which made the order complained of, issued this order in the town. On the other hand the parties are not subject to the original jurisdiction of the High Court, and the estate of Parlakimedi lies in the north of the province. On the present question their Lordships lay no stress on any negative implication derivable from Clause 47 of the charter which authorised the Supreme Court to issue writs of mandamus, certiorari, etc., to the justices and other Magistrates of the town and to the two Courts therein mentioned, the Court of Request and the Court of Quarter Sessions. The terms of this clause make it difficult to think that Courts other than those mentioned were intended to be regarded as inferior Courts for this purpose. The case of Besant v. Advocate-General of Madras (1919) L.R. 46 I.A. 176 : S.C. 21 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants. Long before 1858 it had become evident that the existence of the Mogul Empire and the position of the Company as entrusted with the dewani had a certain element of unreality. The preamble to the Charter Act of 1813, which continued to the Company its territorial acquisitions and rights for a further period, expressly stated that this Was expedient without prejudice to the undoubted sovereignty of the Crown of the United Kingdom of Great Britain and Ireland in and over the same. By the Act of 1853 (16 17 Vic. c. 95), the territories in possession of the Company were continued under its Government in trust for Her Majesty until Parliament should otherwise provide. As a matter of law, their Lordships think it impossible to hold that the Supreme Court, after 1858, became invested for the three further years of its existence with any larger jurisdiction over Courts or persons in the mofussil than it had previously enjoyed. They find nothing in the Act of 1858 to supersede the general scheme of the charter of 1800, or to produce a conflux or confusion of the separate jurisdictions previously obtaining throughout British India. They are not of opinion that it brought Indians gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in excess of jurisdiction to challenge it by a suit in the ordinary civil Courtsubject, as regards specific relief, to the terms of the Specific Relief Act (I of 1877)but if this right has been taken away by the Legislature in any case in which the Board of Revenue, or any other body, exercises judicial functions, it may well be that the only method of challenging a judicial determination on the ground of jurisdiction is by appeal to His Majesty in Council. It is conceded that in the present case an appeal might have been brought to His Majesty in Council by leave from the order of the Board of Revenue. There is, therefore, neither logic nor necessity to justify any doctrine to the effect that the right of superintendence includes a right to issue a writ of certiorari. 50. In the result, their Lordships conclude that, assuming that the Board of Revenue exceeded its power when it enhanced the appellants' rents by 37 1/2 per cent., the High Court had no jurisdiction to issue a writ of certiorari. 51. On the merits also their Lordships think that this appeal fails, since it is not shown that the Board of Revenue, by enhancing the rents of the appellants by 37 1/2 per cent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hancement of 100 per cent, which he had made. This view of the effect of the direction to have regard to the provisions of the Act for determining rates of rent payable by a ryot is supported by the decision of the High Court in the case of Valluri Narasimha Rao v. The Ryots of Peddamamidipalli (1927) I.L.R. 49 Mad. 499 at p. 506. It is also confirmed by certain observations of Reilly J. in Rajah of Mandasa v. Jagannayakulu (1932) 63 M.L.J. 450 F.B., at p. 486 where the learned Judge said : Where the settling officer has to deal only with such questions as would arise in a suit for commutation or for enhancement or reduction of money rent, under Section 168(2) he must be guided by the appropriate principles as set out in the Act. But there is no doubt that his settlement may embrace a much wider field of questions, and whenever he has not merely to adjust the lawful rent but to fix what is fair and equitable in variation from the lawful rent, which could be exacted in a suit, his settlement is clearly something which no Civil Court could do unless specially empowered. 53. Their Lordships find themselves on this matter in agreement with the view taken by the majority of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a phrase is dangerous and unnecessary, but it is fairly clear, as a matter of English, that the view taken by the majority of the Collective Board is nearer to the ordinary meaning of the phrase have regard to , when it appears in a statute, than is that of the dissentient member. This may be illustrated by such English cases as The Queen v. Vestry of St. Pancras (1932) 63 M.L.J. 450 F.B. and McDermott v. Owners of S.S. Tintoretto [1909] 2 K.B. 704. Their Lordships are not, however, in complete agreement with one observation of the learned Chief Justice in his judgment of November 5, 1937, delivered when making the order now under appeal. He said : The words 'and shall have regard to' the provisions of this Act for determining rates of rent payable by a ryot in Sub-section 2 of Section 168, can only apply to the provisions of the Act which have general application. This would seem to involve that the Collective Board need not even have considered the limit of twelve and a half pet cent, referred to in proviso (b) of Clause 1 of Section 30. Their Lordships are not prepared to go so far. 54. The contention that the Board of Revenue have exceeded their powers is, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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