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TMI Blog1952 (9) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... d of S. R. Das Gupta J. and myself when two questions of general importance were raised on behalf of the respondents. The Budge Budge Municipality exercises jurisdiction in an area which lies outside the ordinary original civil jurisdiction of this Court. It was contended that no appeal lay from a decision of a single Judge, given on an application under Article 226 of the Constitution, at any rate in a matter coming from outside the original jurisdiction. It was contended in the second place that the present appeal was barred by limitation. The judgment of Bose J. was delivered on 16-3-1951, but the appeal was not filed till 5th June following. It was contended that the period of limitation was 20 days from the date of the order under Article 151 of the Limitation Act and therefore the appeal was time-barred. 3. As these questions might arise in any appeal against an order made under Article 226 and a large number of such appeals were pending, the Division Bench thought that they ought to be decided finally by a larger Bench. Thereafter I constituted the present Special Bench and directed all appeals from orders made under Article 226, which were ready for hearing, to be placed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is also the High Court. It seems to me to be perfectly clear that when some law simply gives some power to the High Court, such power becomes liable to be exercised in accordance with the rules of the Court and only in accordance with such rules can the power be exercised. There is nothing in such a case to require that the power must be exercised by a Judge or a Bench of the High Court once and for all. Whether under its rules, taken along with the Letters Patent, a High Court exercises the power in each case once for all or whether it exercises it by stages, as it were, first exercising it through a Judge sitting singly and then examining the correctness of such exercise through an Appellate Bench, is a question of the manner of exercising the power within the Court and not a question of the power itself. When, in the second case, an appeal is entertained, the High Court is only continuing and completing the exercise of the power and not exercising it a second time. The case of 'In re. Prahlad Krishna': AIR1951Bom25 (F. B.) (A), on which the respondents relied, was a case of the latter kind where the right sought to be asserted was a right to make successive applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y division Courts constituted by two or more Judges, of the High Court, of the original and appellate jurisdiction vested in the Court. (2) The Chief Justice of each High Court shall determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several division Courts". 8. Various reasons were given as to why a judgment given by a single Judge under Article 226 of the Constitution was not pursuant to the above section and not a judgment under Clause 15. It was said that Clause 15 only contemplated judgments given in exercise of such jurisdictions as were expressly mentioned in the Letters Patent itself and Section 108 also was limited to the distribution of business in respect of those jurisdictions. Exercise of any new jurisdiction conferred on the Court, such as the jurisdiction under Article 226, was not within the contemplation of Section 108 and accordingly a judgment, given in exercise of such jurisdiction, was not a judgment within the meaning of Clause 15. In any event, it was further contended, Section 108 of the Government of India Act was limited to jurisdictions existing at the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 7 WR 52(2) (FB) that it would not be proper "to take away a right of appeal given by the words of Section 15, if read in their ordinary and natural sense, by giving them a narrow and restrictive construction". But the matter does not rest merely on general observations of high authority or considerations of a general character. Before the amendment of 1928, Clause 15, so far as is material, provided that an appeal would lie to the High Court "from the judgment ..... of one Judge of the said High Court ..... pursuant to Section 13 of the said recited Act". The "said recited Act" was the High Courts Act of 1861, or as it is generally called, the Charter Act, and Section 13 of that Act provided that the High Court might, by its own rules, provide for the exercise by one or more Judges or by Division Courts, of the original & Appellate Jurisdiction vested in the Court. The jurisdiction specifically mentioned in the Letters Patent were the same as now and did not include revisional jurisdiction over Courts subordinate to the High Court. Yet it was held in -- 'Shew Prosad v. Ram Chun-der' A. I. R. 1914 Cal. 388 by Jenkins, C. J. and Woodroffe J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 236 . 13. The second contention on behalf of the Respondents that in order to come under Clause 15, a judgment must be one given in exercise of a jurisdiction existing at the date of the Government of India Act of 1915, or at the most, at the date of the Act of 1935, appears to me to be equally untenable. It was contended that Clause 15 expressly required judgments contemplated by it to be pursuant to Section 108 of the Act of 1915, and since the repeal of that Act did not affect its existence, as incorporated in Clause 15,'-- 'Secy, of State v. Hindustan Co-operative Insurance Society Ltd', the condition that such Judgment is must be pursuant to Section 108 of the Act of 1915 was still a valid and operative condition. That contention appears to me to be fallacious, because although Section 108 of the Act of 1915 might be alive within Clauses 15 and 36 of the Letters Patent, it was not alive outside and I cannot see how in 1951 or 1952, the High Court could at all make rules under Section 108 or the Chief Justice could assign jurisdictions to single Judges or Division Courts under that section. Before coming within Clause 15, a judgment must already have been given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs thereof sitting alone or in Division Courts", as they were immediately before the commencement of the Act. That section was virtually a re-enactment in a combined form of Section 106 and 108 of the repealed Act and therefore by virtue of Section 38(1) of the Interpretation Act, 1889, the reference to Section 108 in Clause 15 would have to be read as a reference to Section 223 of the Act of 1935. If so, a judgment given in exercise of a jurisdiction existing at the commencement of the Act of 1935 and given in pursuance of rules made under Section 223 of that Act would be a judgment within the meaning of Clause 15, but a judgment given in exercise of the jurisdiction conferred by Article 226 which came later would still be outside the ambit of the Clause. As in the case of Section 108 of the Act of 1915 so in the case of Section 223 of the Act of 1935, the respondents' line of reasoning would certainly lead to the result contended for by them, but the difficulty that such construction would leave the High Court powerless to make any rules for the exercise of jurisdiction subsequently vested, unless such power was specifically given by the law vesting the jurisdiction, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t they took a right view. It has been dissented from by the Bombay High Court in the case of -- 'James Chadwick and Bros. Ltd. v. National Sewing Thread Co. Ltd.',: AIR1951Bom147 (J), reported since judgment was reserved in the present case, but I do not think that the learned Judges of the Bombay High Court were correct in saying that Section 38(1) of the interpretation Act had been "completely overlooked", in the Calcutta case. At least one of the learned Judges, Das J., referred to the rule of construction embodied in Section 38(1), though he did not name the section (See P. 60, 2nd column, first paragraph of the report in the 5"! Calcutta Weekly Notes) and he also considered what the effect would be if for Section 108 of the Act of 1915, Section 223 of the Act of 1935 were substituted. As he was of opinion that even then, only rules framed for the exercise of jurisdictions existing at the date of the Act of 1935 would be included, he felt bound to hold that a jurisdiction conferred by an Act of 1940 could not have been assigned to the trial Judge by a rule framed under Section 223. The Bombay High Court did not agree that a jurisdiction conferred after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion conferred by the Constitution and its exercise, so far as matters outside the limits of the original jurisdiction of the Court are concerned, in accordance with rules framed after the Constitution had come into force. The question whether a judgment given by a single Judge in exercise of the jurisdiction conferred by Article 226 is a judgment within the meaning of Clause 15 of the Letters Patent is not directly covered by any decided case. 17. The only aspect of the question with which we are concerned at the present moment is whether such a judgment is a judgment "pursuant to Section 108 of the Government of India Act", according to the present meaning of that phrase. But before entering upon a discussion of that question, it is necessary to remind ourselves how a single Judge comes to deal with applications under Article 226. That Article confers a general power on the High Court to issue directions, orders or writs throughout the territories subject to its jurisdiction. An application under the Article may therefore concern a matter arising within the limits of the Court's original jurisdiction or it may concern a matter arising outside. For applications of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion itself in Articles 226 and 227 and future enlargements of territorial jurisdiction are contemplated by Article 230. Again, appropriate Legislatures may by law confer new jurisdictions or powers in future. Article 225, it appears to me, defines the whole "jurisdiction of the existing High Courts and its effect is to provide that such High Courts shall have all their existing jurisdictions, so far as they are not inconsistent with the provisions of the Constitution and such 'further jurisdictions as are being conferred by the Constitution itself or may be conferred in future either by Parliament under the provisions of the Constitution or by laws of the appropriate Legislature, provided that by such laws the jurisdiction may also be curtailed. I do not think it is correct to read the Article as solely concerned with the preservation of the existing powers and the provision introduced by; the words 'subject to' as merely providing that the High Courts shall have their existing jurisdiction only so far as it is not being curtailed by the Constitution or may not be curtailed in future by laws of the appropriate Legislature. Such reading of the Article would lead to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a single Judge under the rules assigning the jurisdiction to him? If the Article had simply said that the High Courts would have power to make rules for regulating the sittings of the Court and of members thereof there would have been no difficulty. But under Article 225. "the power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts": is what it was immediately before the commencement of the Constitution, Immediately before the Constitution, that power was, under Section 223 of the Government of India Act of 1935, as amended by the India (Provisional Constitution) Order, 1947, what it had been immediately before the establishment of the Dominion. Immediately before the establishment of the Dominion, the power was, under Section 223 of the Act of 1935, as it originally stood, what it had been immediately before the commencement of that Act. Immediately before the commencement of the Acb of 1935, the power was as provided for in Section 108 of the Government of India Act of 1915, which is the section to which the Letters Patent still prefers. The nature and limits of the power given by Article 225 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special argument that might be available in Original Side cases would be of no assistance to the appellants. The general question as to the true scope of Section 108 of the Government of India Act of 1915 with regard to the rule-making power of the High Court has therefore to be gone into. 22. The section consists of two sub-sections, the first corresponding to Section 13 of the Charter Act and the second corresponding to Section 14. Sub-section (1) gives power to the High Court to make rules for the exercise of "the Original and Appellate Jurisdiction vested in the Court" by one or more Judges or by Division Courts. Sub-section (2) makes it the duty of the Chief Justice to determine what Judge is to sit alone and what Judges are to constitute the Division Courts. It will thus be clear that a particular class of business is to go to a single Judge Court or to a Division Bench under rules framed by the Court, but a particular Judge is to sit in a particular Court and exercise the jurisdiction assigned thereto, either singly or jointly with one or more Judges, under a nomination to be made by the Chief Justice. Section 13 of the Charter Act to which Clause 15 of the Letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was for that reason that Sir Lawrence Jenkins C. J. said in AIR 1914 Cal 388 that Section 13 as also the scheme of the Charter Act and that of the Letters Patent showed that they recognised and spoke in terms of only one principal division of the jurisdiction of the High Court, viz., the Original and the Appellate, and what the learned Chief Justice obviously meant was that the specific mention of only those two jurisdictions did not mean that any jurisdiction which could not be regarded as included within those jurisdictions on a strict, technical view, was excluded. The two terms used were intended to cover, as between them, all jurisdictions. It appears to me that when Section 108(1) of the Government of India Act of 1915 spoke of "the Original and appellate jurisdiction vested in the Court", it meant such jurisdictions belonging to those categories, as might be vested from time to time or, to be more particular, such jurisdiction as might be found vested in the Court at any time when rules were framed. A provision in a Constitution Act empowering the High Court to make rules for the exercise of its jurisdiction by single Judges or Division Courts could not possibly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of a particular jurisdiction may-reach the stage of Section 108(1) otherwise than under rules made under that section, it can never reach the stage of Section 108(2). All judgments of Judges of a High Court must therefore be pursuant to Section 108 in this sense, except in the not easily conceivable case of a Judge or Judges usurping some jurisdiction. Even if a case goes to a single Judge Court or a Division Bench under rules framed not under Section 108 but under some particular Act, still the particular Judge or Judges sitting in that Court or on that Bench will do so under a determination made under Section 108(2) and to that extent at least, the judgment must always be-pursuant to Section 108. 26. For the reasons I have given, I am of opinion that it cannot be said that a judgment of a single Judge on an application under Article 226, whether in a matter arising within the original jurisdiction or in a matter arising outside, is not a judgment pursuant to Section 108 and therefore not appealable. The same view was taken by K. C. Das Gupta and P. N. Mookerjee JJ. in -- 'Commercial Tax Officer, West Bengal v. Shree Ganesh Jute Mills Ltd.', A. O. O. No. 26 of 1952 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ordinary jurisdiction of the Court. On behalf of the appellants, reference was inevitably made to -- 'National Telephone Co. Ltd. v. Post Master General, (No. 2)', (1913) A. C. 546(L) --'Adaikappa Chettiar v. R. Chandrashekhara Thevar' and other cases of that class in order to establish the proposition that where, as in the case of Article 226, a question was referred by a Statute to an established Court within any further provision, the ordinary rules of procedure applicable to that Court would apply and an appeal would lie, if authorised by such rules. I am prepared to concede that to a certain extent and in a certain sense, the jurisdiction under Article 226 is a new jurisdiction. The Article applies of its own force to all existing High Courts in Part A States, it applies to the High Courts in Part B States by virtue of Article 238 and may apply to High Courts in Part C States by virtue of Article 241. Of these, only the three Presidency High Courts of Calcutta, Bombay and Madras had power to issue certain writs within the limits of their ordinary original civil jurisdiction, whereas Article 226 empowers all High Courts to which it applies to issue directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts given in exercise of that jurisdiction came within a specific exception contained in Clause 15 of the Letters Patent. That argument was sought to be supported by reference to another new rule, Rule 15A, added to Chap. 5 of the Appellate Side Rules, which says that applications for the issue of writs or orders outside the Original jurisdiction of the Court shall be treated as revisional applications and the procedure relating to revisional applications on the Appellate Side shall apply. If a particular jurisdiction is not in fact revisional, the Court could not make it so by calling it by that name in rules framed by it. But Rule 15A does not say that applications under Article 226 of the kind mentioned by it are revisional applications: what it says is only that they shall be treated as such. It was pointed out by the Privy Council in--'Hamid Hasan v. Banwarilal Roy', that the issue of high prerogative writs was exercise of original jurisdiction AIR 1947 PC 90 . The writs contemplated by Article 226 are of the same nature and it is also clear that whatever may be the nature of the jurisdiction involved in the issue of the writs, the same will be the nature of the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Judge, hearing them, shall do so "as a Judge sitting on the Appellate Side and as matters appertaining to that Side". Because such applications are heard by a Judge, sitting singly and because Rule 8 says that the Judge hearing such applications will do so as a Judge on the Appellate Side, it has been thought that Rule 2 of Chap. 8 of the Appellate Side Rules might bo applied. That rule, so far as is material, says that "every appeal to the High Court under Clause 15 of the Letters Patent from a judgment of .... ...... a Judge sitting singly, on the Appellate Side of the High Court, shall be presented within sixty days from the date of the judgment appealed from." It has been thought that a judgment on an application under Article 226, in a matter outside the original jurisdiction of the Court, is a judgment of a Judge, sitting singly on the Appellate Side and, therefore, Rule 2 of Chap. 8 of the Appellate Side Rules applies. 34. There can be no doubt that Rule 2 can have no application and the Court has not said that it would apply. It has undoubtedly said by Rule 8 of Chap. 2 that the Judge, dealing with the kind of applications concerned, shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court did not prescribe a period, there would be none. 36. Article 151, as it stands now or as it stands' in the latest form that it was possible to trace, speaks of "a decree or order of any of the High Courts of Judicature at Fort William, Madras, Bombay, East Punjab, and Nagpur in the exercise of its original jurisdiction". The period of limitation is 20 days from the date of the decree or order. 37. In support of the argument on behalf of the Appellant, we were referred to the history of the Article. It appears that before the Limitation Act of 1877, there was no such Article in the Acts of 1859 and 1871. In this Court, the period of limitation for appeals under Clause 15 of the Letters Patent would seem to have been prescribed by rules made by the Court, for the judgment of Peacock C. J., in -- 'Huruck Sirigh v. Toolsee Ram Sah' 12 W. R. 458 refers to certain Rules framed on 5-8-1867 under which the period was 30 days. The appeal in Huruk Singh's case was an appeal from a judgment of a Division Bench, as would appear from the report of 'In the matter of Hurruck Singh' 11 W. R. 107 and it was an appeal on the Appellate Side, as would appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or instrument constituting it. It was contended that the Chief Court of Lower Burma had such jurisdiction and reference was made to Sections 16 and 17, Punjab Courts' Act, for showing that some original jurisdiction was possessed also by the Chief Court of the Punjab. Section 16 of the Act cited deals only with the Court's power to transfer suits or civil proceedings from subordinate Courts, either to itself or to another Court, and corresponds in part to Clause 13 of the Calcutta Letters Patent. It is true that Section 17 (b) speaks of "any other original jurisdiction of a civil nature", but no such jurisdiction could be traced in the Act itself which created the Court. I have already pointed out that the Article has now been extended also to the Nagpur High Court. In view of the manner in which the Legislature has dealt with the Article and also of the fact that there are other kinds of original jurisdiction than those specified in the Letters Patent, it cannot be reasonable to suppose that the Legislature, when providing for a period of limitation for appeals from judgments of certain High Courts in the exercise of their original jurisdiction, intended to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for discontinuing the issue of licenses under Sections 408 and 418 of the Act for the slaughter of draught animals and sale of beef or the flesh of such animals within the municipal area, except on bona fide religious festivals and ceremonial occasions. Thereafter a notice, dated 27-2-1950 was served on the respondents by which they were informed that "no license for slaughtering or for sale of beef or flesh of buffaloes etc." would be issued from 1-3-1950. It was alleged that the resolution and the notice were ultra vires and mala fide and constituted a violation of the fundamental right of the petitioners, guaranteed by Article 19(1)(G) of the Constitution. They had made various representations to the Municipality and to other authorities, but without any effect. They had also made several applications for a renewal of their licenses, the last having been made on 22-2-1950, but those applications had not been entertained. Accordingly they prayed for the reliefs I have already mentioned and certain other incidental reliefs. 41. The commissioners in their reply denied that their action had been mala fide and claimed that the resolution passed by them was based on reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under which they functioned, had in fact gone outside them and their excesses were liable to be corrected. The learned Judge repelled an argument advanced on the basis of Article 48 and also the argument that the respondents had an alternative remedy in an appeal. In the result, he made an order cancelling the resolution of 24-2-1950 and the notice dated 27-2-1950, directing the Commissioners to forbear from giving effect to the resolution and the notice and directing them further to determine the applications for renewal of the licenses according to law. 45. I may point out in the first place that in passing the final order, the learned Judge went far beyond the terms of the Rule he had issued. The Rule only called upon the Commissioners to show cause why a writ of or in the nature of Prohibition or Certiorari or Mandamus should not be issued, restraining them from further proceeding with the matter referred to in the petition. There was, of course, the usual general term, "or why such other or further order be made as to this Court may seem fit and proper," but in matters in the nature of high prerogative writs, it is desirable to be precise as to the case which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entitled to keep a meat shop at any place within the municipality he likes. Certain activities are of such a nature that their pursuit in certain areas requires to be controlled. Section 370(1), therefore, sets out a number of purposes and provides that no one shall use any place, within such limits as may be fixed by the Municipality, for those purposes, except under a license from the Commissioners. Keeping a meat shop comes under Clause (xiii) of Section 370(1), as a business from which offensive or unwholesome smells are likely to arise and indeed it is mentioned in the standard form of a license under the section under the heading 'G1. The license under Section 370(1) may be called the site or place license. If the limits of a certain area, within the municipality have been fixed by the Commissioners for the purposes of Section 370(1), a person desiring to keep a meat shop within that area must take out a further license under that section. Section 408 to which the resolution refers does not provide for the issue of any license. The correct provision is Section 407 which provides for the issue of a license for a private slaughterhouse. 49. It will thus appear that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those applications have not yet been considered. The right to have those applications considered cannot be disputed. Although I have held that the notice served on the respondents perhaps contemplates only licenses under Sections 407 and 418, the sections are not mentioned in the notice and the general language "licence for sale of beef" may have been intended to cover the license under Section 370(1). In the circumstances, the consideration of the applications may in actual fact be unreal, if the notice be allowed to stand. I would, therefore, maintain the learned Judge's order cancelling the notice and directing the consideration of the applications. 53. In the result, the appeal is allowed in part. The judgment and order of the learned Judge, in so far as they deal with & direct the cancellation of the resolution of 24-2-1950, are set aside & the rest of the judgment and order are maintained. Each party will bear its own costs in the appeal. Das Gupta, J. 54. I agree. Banerjee, J. 55. I agree. Das, J. 56. I agree. Sudhi Ranjan Das, J. 57. I am unable to agree with the view expressed by my Lord the Chief Justice. In my opinion no appeal lies from an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol Act conferred upon the Courts power to grant various reliefs and make various orders which the Courts did not possess before. But those powers are certainly not the same thing as jurisdiction. Similarly, High Courts have been vested with Extraordinary Original Civil Jurisdiction, infancy and Lunacy Jurisdiction, Insolvency Jurisdiction, Testamentary and Intestate Jurisdiction, and various other jurisdictions mentioned in the Letters Patent. In exercising such jurisdictions Courts may have power to grant various reliefs and those powers are enlarged or abridged from time to time, but they are not the same thing as jurisdiction. 59. Having dealt with the question as to what is meant by "jurisdiction", I shall now proceed to consider whether Article 226 has conferred any new jurisdiction or there has been mere extension of power, the jurisdiction having been already vested in the High Courts. What the learned Advocate General meant to say in his argument is that jurisdiction in this case is the jurisdiction to issue writs and that jurisdiction was already there. He further contended that Article 226 has not conferred any new jurisdiction, but there has been mere extensio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the jurisdiction to issue writs and, therefore no new jurisdiction has been conferred by Article 226, that cannot be the position so far as the other High Courts are concerned, because these High Courts had no power to issue writs. Therefore the result, if Mr. Advocate General's argument be accepted, would be that so far as the High Courts of Calcutta, Madras and Bombay are concerned there has been mere extension of power, whereas so far as the other High Courts are concerned a new jurisdiction has been conferred upon them. This certainly is a very anomalous position. In fact Mr. -Gupta, who also appeared in support of the view that an appeal lies, conceded that no High Court had the right to issue writs under Article 228 and this right is new to all High Courts and it cannot be, that Article 226 has extended the power of some High Courts while conferring new jurisdiction on others. Of course, he argued, whether or not the extended power of the three High Courts still exists or not is a different question. I, therefore, hold that Article 226 has conferred a new jurisdiction on the High Court. 61. Having come to the conclusion that Article 228 conferred a new jurisdiction on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for all the parties that a judgment of a single Judge in order to be appealable under the Letters Patent must be "pursuant to Section 103, Government of India Act, 1915". The relevant sections of the Government of India Act which are necessary to be considered are Section 106(1) and Section 108, Government of India Act, 1915. The said sections read as follows: Section 106(1) : "The several High Courts are Courts of record and have such jurisdiction, original and appellate, including admiralty jurisdiction in respect of offences committed on the high seas, and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers of the Court, and power to make rules for regulating the practice of the Court, as are vested in them by Letters Patent, and, subject to the provisions of any such Letters Patent, all such jurisdiction, powers and authority as are vested in those Courts respectively at the commencement of this Act." Section 108 : "(1) Each High Court may by its own rules provide as it thinks fit for the exercise, by one or more Judges, or by Division Courts constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -69. Das J. also came to the same conclusion. After quoting Section 108(1) and Section 108, Government of India Act, 1915, his Lordship observed as follows : "The position at the commencement of the 1915 Act was, therefore, that under Section 106(1) this High Court had such jurisdictions, powers and authority as- (i) it got under the Letters Patent; (ii) it inherited from the Supreme Court, in so far as they had not been taken away by Indian Legislative enactments; (iii) it derived from Indian Legislative enactments up to that date. It was with regard to these jurisdictions, original and appellate, that the High Court was empowered by Section 103 to make rules". 70. I am unable to see any reason for dissenting from the view taken by their Lordships in that case. In this connection it should be mentioned--and S. R. Das J. has also mentioned it in his judgment in that case -- that although the 1915 Act was repealed by Government of India Act, 1935, but as no corresponding amendment was made in Cis. 15 and 36 of the Letters Patent and reference to Section 108 of the 1915 Act still remained in those clauses, "the appealability", to use the words of Das J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lordship further pointed out that although the High Court derives its rule-making powers under different enactments, Clause 15 of the Letters Patent refers only to a particular section, Section 108 of the 1915 Act and a judgment to be appealable under Clause 15 has to be pursuant to Section 108, Government of India Act, 1915. I cannot do better than set out the position of Das J's judgment where he dealt with this question. His Lordship observed as follows : "As regards the Supreme Court, Clause 38 of its Charter of 1774 empowered the said Court to frame such rules of practice, make such standing orders for the administration of justice, and the due exercise of the civil, criminal, admiralty and ecclesiastical jurisdiction thereby created and to do all such other things as shall be found necessary thereunto. The rules, however, had to be approved by the King with the advice of the Privy Council. The Act of Settlement of 1781 by Section 19 made it lawful for the Supreme Court to frame processes & make rules and orders in suits, civil or criminal against the orders in suits, civil or criminal, against the natives of Bengal, Behar and Orissa consistent with their religion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s subject to their superintendence and to annul, alter or add to the rules in Schedule 1 and Section 129 gives power to the Chartered High Courts to make rules regulating their own procedure in the exercise of. their Original Civil Jurisdiction. The 1915 Act reproduces in Section 107 the rule-making power given to the High Court by Section 15 of the Charter Act of Courts subject to its superintendence and Section 108 the provisions of Ss. 13 and 14 of the Charter Act. Section 223 of the 1935 Act preserves all the powers of the judges including their power to make rules, and Section 224 replaces Section 107 of the 1915 Act. Besides these rule-making powers, different Indian Statutes have given rule-making powers to the High Court, e. g., Specific Relief Act, Transfer of Property Act, Guardian and Wards Act, Arbitration Act and other Acts. These are the several sources from which this High Court derives its rule-making powers". 73. His Lordship then proceeded to observe is follows : "It will be noticed that although the High Court derives its rule-making powers under different enactments, Clause 15 of the Letters Patent refers only to a particular section, namely Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the jurisdictions already vested in the High Courts by the Letters Patent of 1865, I accept the opinion expressed by my Lord the Chief Justice and I cannot hold that a judgment as contemplated in Clause 15 of the Letters Patent must be a judgment passed in the exercise of any of the jurisdictions already vested in the High Courts by Letters Patent of 1865. I need not say anything further on this point. 76. In the premises as aforesaid, I am of opinion that no appeal lies from the order passed by Bose J. under Article 226 of the Constitution. 77. Having come to the aforesaid conclusion, it becomes unnecessary for me to give my decision on the merits of this appeal. But as the matter has been argued fully before us and as my Lords have given their decisions on it, shall also shortly indicate my views thereon. In my opinion the decision of Bose J., except certain portions thereof should be upheld. My reasons for the aforesaid conclusion are shortly stated as follows: In the first place, the resolution purports to be under Sub-section (2) of Section 370, Bengal Municipal Act. But Sub-section (2) of Section 370 of the said Act authorises the municipality to withhold licenses only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution, which says that in future no licence under Section 418 shall be granted, is concerned the position is also the same. Here again I hold that the municipality exceeded its power and jurisdiction. It has to decide each case on its merits and to hold whether or not licence under Section 418 shall be granted. It cannot pass a resolution, giving effect to which would result in making the provisions of Section 418 wholly inapplicable to the municipality. 80. Mr. Kar in support of his contention that the municipality should be restrained from giving effect to the said resolution and notice also contended that the said resolution and notice referred with his clients' fundamental rights as citizens of the Indian Union. In other words, the effect of the said resolution is that his clients are for all time to come prevented from carrying on their occupation, trade or business of butcher and seller of beef. Therefore, he urged, the said resolution should not be allowed to be given effect to. This no doubt raises a constitutional point of some importance, which can by no means be lightly brushed aside. But having regard to the fact that in my opinion the resolution on other grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d still be necessary for the appellants to apply for renewal of the licence and the municipality to refuse it before any application for the reliefs claimed can be made. In this connection I would refer to the case which is made by the municipality in its affidavit-in-opposition filed before the learned Judge. In para. 11 of the affidavit filed on behalf of the municipality before the learned Judge it is stated that the question of renewal of licence does not arise at all in view of the resolution and the other remedies being available in law and in the light of the facts stated to the preceding paragraphs. Thus even before the learned Judge the municipality was relying on the resolution itself and was contending that in view of the said resolution no question of renewal of licence would arise. As I said before. the municipality has not only passed a resolution, but has given notice of it to the appellants and has informed them in the clearest possible terms that the municipality is going to give effect to the same and that in future no licence would be issued. The appellants thereafter asked the municipality several times in writing to revise their decision, but with no results. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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