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TMI Blog1945 (10) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... f Supplies on March 24, 1942. On March 31, 1942, the Secretary to the Government of Bombay, Revenue Department, by order of the Governor of Bombay sent a memorandum to the Collector of Bombay. In that memorandum it was stated that the Government had decided that the old Petit Mills site at Tardeo should be requisitioned immediately under Rule 79 of the Defence of India Rules and the Collector was requested to lease temporarily to the Supply Department so much of the land as was required by that department. In para 2 of the memorandum it was stated that the Government had also decided that proceedings for the acquisition of the said land under the Land Acquisition Act should be started simultaneously and the Collector was requested to send to Government the requisite proposals for its acquisition. Rule 79 of the Defence of India Rules there referred to was the old rule in place of which the present Rule 75A is substituted. 3. On receipt of this memorandum the Collector issued an order of requisition on the appellants. That is dated April 9, 1942. By their reply the executors of the late Sir Dinshaw Petit pointed out that under the orders of the Government of India the property ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrespondence and stated that as regards the stay of proceedings he could only take directions from the Government of Bombay and from no one else. The appellants then filed the present petition on August 25, 1944, and made Mr. M.S. Noronha the only respondent. It is contended in the petition that Rule 75A of the Defence of India Rules, 1939, framed under the Defence of India Act, 1939, was ultra vires and illegal. It is further contended that the action of the Government in acquiring the property under that rule and dropping the idea of acquiring the same under the Land Acquisition Act was mala fide inasmuch as it was thereby intended to deprive the appellants of the fifteen per cent, compensation permitted under the Land Acquisition Act. The order of acquisition was challenged as ultra vires and it was contended that the respondent should be prevented from proceeding with the arbitration. The prayers are for a writ of certiorari, a writ of prohibition, and an order and injunction under Section 45 of the Specific Relief Act, 1877, against the respondent. 5. On the petition being filed Mr. Justice Coyajee on August 26, 1944, issued an order calling upon the respondent to show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporal court, which forbids such court to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. Article 1396 runs as follows: With certain exceptions, the issue of the writ of prohibition, though not of course, is of right and not discretionary, and the superior court cannot refuse to enforce public order in the administration of the law by the denial of a grant of the writ. Smallness of the matter in dispute and delay on the part of the applicant are not in themselves ground for a refusal. The relevant portion of Article 1397 is as follows: Prohibition lies not only for excess of or absence of jurisdiction, but also for the contravention of some statute or the principles of the common law;... The Court in deciding whether or not to grant a writ of prohibition, will not be fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction, or an appeal lies against such absence or excess. Similarly, the fact that ... the party applying for prohibition has himself initiated the proceedings in the inferior court, is not material to the decision of the Court to grant or to refuse the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Relief Act restricted the jurisdiction of the High Court to issue a writ of prohibition? In my opinion it has not. Section 9 of the High Courts Act, 1861, provides that unless the powers which so far existed in the then existing Supreme Courts were taken away, all the powers of Supreme Courts continued in the High Courts established under the said Act. The result is that before the Government of India Act, 1915, under the High Courts Act and the Letters Patent granted to the Bombay High Court the jurisdiction of the Court, as found in Clause 5 of the original Charter of 1823, was in these terms: ... and to have such jurisdiction and authority as our Justices of our Court of King's Bench have and may lawfully exercise, within that part of Great Britain called England, as, far as circumstances will admit. By the Government of India Act of 1915, Section 106(1) the High Courts are continued and their jurisdiction has also been continued as before. The same position continues under the Government of India Act of 1935, Section 223. Reading these provisions together it is clear that the High Court at present has the jurisdiction which was conferred on. the Supreme Court by Claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice. But the operation of writs has been extended to control the proceedings of bodies which do not claim to be, and would not be recognised as. Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs. It appears therefore clear that the authority to issue such writs existed in the King's Bench Division and such writs have been granted against bodies acting judicially or performing quasi-judicial functions. 10. In India, the question of jurisdiction of the High Court to issue the writ of prohibition came to be considered directly by Panckridge J. in In re National Carbon Company, Incorporated I.L.R. (1934) 61 Cal. 450. It was argued before him that Clause 21 of the Charter of the Calcutta Supreme Court (which corresponds with Clause 55 of the Charter of the Supreme Court of Bombay) restricted the juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mus and the writ of prohibition. It appears that no arguments were advanced about the difference in the nature and effect of the two writs. The two were treated as standing on the same footing. The Court held, as a fact, that Mr. Gillett, when taxing the bill, whether under the directions of a special resolution of the Government or at the request of the Government, was not a person holding a public office. In terms, that learned Chief Justice stated that that would be sufficient for the decision of that application. He further held that if Mr. Gillett was a person holding public office, it would be futile to contend that he had no jurisdiction to tax the bill. He compared the position with a decree passed by the High Court, dismissing a suit with costs, and an application being made by the unsuccessful plaintiff to prevent the Taxing Master from taxing the bill. The words of Section 50 of the Specific Relief Act were not noticed during the argument or in the judgment. That case, in my opinion, therefore, is not directly helpful to us. The observations were clearly obiter because the Court found as a fact that Mr. Gillett was not a person holding a public office and unless that con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised that the Legislature is aware of the distinction between the writ of mandamus and the writ of prohibition, and there was nothing to prevent them from taking away the jurisdiction in respect of the writ of prohibition, if they were so minded, unless the conditions provided in Section 45 of the Specific Relief Act were fulfilled. The jurisdiction of the superior Courts cannot be impliedly taken away by some words found in a section of an Act of the Legislature. It has to be taken away, if at all, by express words. This is particularly so when the Legislature had deliberately provided in Section 50 that the writ of mandamus (only) could not be issued thereafter. This rule of construction is recognised by the highest judicial authority. In Halsbury's Laws of England, Vol. IX, Article 1455, p. 861, in dealing with the writ of certiorari it is stated as follows: It is enacted by various statutes that proceedings under them shall not be removed by the writ of certiotari. Certiorari is said to be ' taken away' by such statutes. Certiorari can only be taken away by express negative words. It is not taken away by words which direct that certain matters shall be finally d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orari, can be said to have been taken away. The writs of certiorari and prohibition are complementary of each other and those observations apply equally to the jurisdiction to issue writs of prohibition. 13. On behalf of the respondent it was contended that the whole field of the writ of prohibition was covered by Clause 55 of the Charter and' therefore the general words of Clause 5 conferring jurisdiction on the Court were cut down. The maxim Express enactment shuts the door to further implications was relied upon in this connection. Counsel referred to Clause 23 of the Letters Patent also in this connection. In my opinion this argument is unsound. Clause 55 of the Charter in terms deals with the right of supervision of the Supreme Court over the Justices and other Magistrates appointed for the town and island of Bombay and the factories subordinate thereto. In respect of these judicial officers express power was given by the words used at the end of that clause. That portion runs as follows: .. .to which end, the said Supreme Court of Judicature at Bombay is hereby empowered and authorised to award and issue a writ or writs of Mandamus, Certiorari Procedendo, or E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor General of India in Council and the Province of Bombay and the Collector of Bombay, although not in terms, are in fact parties to these proceedings; and (2) that under Section 306(1) of the Government of India Act, 1935, the High Court had no jurisdiction to issue an order of the kind against them. On the first question I have already pointed out that when granting the interim injunction the learned Judge had not directed that these persons should be made parties. After the service of the rule, when those parties appeared, they did not apply to be made parties. Now the position may be considered from two points. Under the High Court Rules in respect of the writs of prohibition and certiorari there is no obligation to serve the rule on any party except the respondent. Because in the present case an order under Section 45 of the Specific Relief Act was asked for it appears that a direction was given to serve the rule on the other parties. On the service of the rule the parties are not bound to appear. They are not named as respondents and no Court can make an order against them. The order made on the rule will not be binding on them. If the appellants sought to make the order bin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he immediate reinstatement of the names if the King thought fit to alter it. It is sufficient for the present purpose to say that a judgment pronounced in favour of the realtor would not involve the making by this Court of an order upon the Clerk, neither would this Court be powerless to enforce the judgment if it were disobeyed by those against whom it was made. It was observed that the Courts having been established by the King it was respectful -and proper to assume that once the law was declared by a competent judicial authority it will be followed by the Crown. To the same effect there are observations in Ponnam-bala Desikar v. H. R. E. Board, Madras [1941] Mad. 807. In that case it was contended that as the order was sought to be made against the Board of Commissioners for Hindu Religious .Endowments, Madras, it was an order against the Governor General of India-in-Council or the Government of the Province and the Court had no jurisdiction to do so. I am not concerned with the discussion in that case which relates to Section 306(1) of the Government of India Act. I only desire to point out that the jurisdiction of the Court to issue an order against an individual was treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. Even if they are made parties to. these proceedings, the prayer still continues to be for the issue of the writs and order only against the respondent Mr. Noronha. In the absence of any such prayers it is not necessary to discuss the question whether this Court has jurisdiction to issue the writs of certiorari and prohibition against those parties, who appeared before-the trial Court and also before us. By this conclusion I should not be understood to. be in agreement with the reasoning of the learned trial Judge on the interpretation of Section 306(1) of the Government of India Act. It is not necessary to decide that point and I pronounce no opinion for or against the conclusion of the learned Judge in that respect. Under the circumstances I think the learned Judge was in error in holding that the petition in asking for a writ of certiorari against the respondent Mr. Noronha was misconceived and did not lie. 18. That leaves the question of an order under Section 45. Mr. Munshi pointed out that the nature of this writ, as authorised to be issued in England, is different from what can. be issued by the Court under Section 45 of the Specific Relief Act. It was pointed out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45,, and 46 of the Indian Arbitration Act (X of 1940) in the matter of arbitration under a statute to which the Crown is a party the Arbitration Act applies and the right to make: the application under Section 33 of the Indian Arbitration Act to stop the arbitrator from, proceeding on the ground that there is no valid reference at all exists. Therefore, to be free from harassment by an arbitration, in respect of which the arbitrator has no jurisdiction, is recognised a wrong in respect of which the legal remedy is provided by Section 33. It was argued that by reason of the rules framed by the Government of Bombay the-right to proceed under Section 33 is taken away in respect of the adjudication to be made; by the arbitrator under Section 19 of the Defence of India Act. It is therefore contended, that there was an injury to the right of the petitioners and the condition was fulfilled.. As against Ramdas v. Atlas Mills, Co. Mr. Murishi pointed out that in Kitts v. Moore [1895] I Q. B. 253 an injunction was asked for to stay arbitration proceedings, and Lord Lindley in delivering judgment stated that there was no single case which in any way curtailed; the power of the Court to stop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of this petition I think there is considerable doubt about the soundness of the argument of the petitioners. The contention that they will lose the fifteen per cent, compensation if the land is acquired under Rule 75A and thus be injured in respect of their property, does not appear to be sound. If the arbitrator has jurisdiction and the acquisition is valid, no question of any injury to property arises; if the arbitrator has no jurisdiction, the award would be a nullity and cannot affect the petitioners' right to receive compensation which they are entitled to receive under the ordinary law. As, however, in my opinion the question of issue of an order under Section Arbitration Ac is capable of being fully disposed of on the ground that the condition found in proviso (2) is not .fulfilled, I do not propose to deal with this proviso more in detail. 20. The second condition is that such doing or forbearing is under any law for the time being in force clearly incumbent on such person in his public character. This contention was urged before the trial Court, but the learned Judge thought that as conditions (I), (4) and (5) were not fulfilled it was not necessary to decide th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition. That view appears to be based on the observations of Greaves J. in In re Manick Chand Mahata v. The Corporation of Calcutta and the Calcutta Improvement Trust I.L.R. (1921) Cal. 916, Against that, however, I should point out that in The Queen v. Charity Commissioners 'for England and Wales [1897] 1 Q. B. 407 it was held that when ordinary suit and the remedy of injunction can be had as a matter of discretion the Court must not issue the writ of mandamus. To the same effect there are observations in Rex v. Dymock (Vicar and Churchwardens) [1915] 1 K.B. 147. In view of my conclusion in respect of the second condition I do not propose to discuss the question of the fulfilment of conditions (d) and (e). I only observe that for the argument of the appellants that the specific remedy mentioned in the fourth proviso means a special remedy separately provided by an Act of the Legislature, there appears no justification, It is true that the alternative remedy must be equally adequate and efficacious. But there is no reason why on that ground the remedy provided by an ordinary suit should be considered excluded. In my opinion the conclusion of the learned trial Judge in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd respectively, of the Supreme Court with such jurisdiction and authority as the Justices of the Court of King's Bench had and would lawfully exercise, within that part of Great Britain called England, as far as circumstances would admit. Now it is clear that this clause defines the nature of the authority that the Judges of the Supreme Court had. It does not deal with the territorial extent of that authority. Whereas Clause 5 relates merely to the nature of the authority which the Judges of the Supreme Court were to possess, the subsequent clauses in the Charter of the Supreme Court lay down and provide who were the persons who were to be subject to that authority. Clause 55 of the Charter refers to certain writs, namely, the writs of Mandamus, Certiorari Procedendo, or Error; and it has been contended that the absence in this clause of any mention of the writ of prohibition goes to suggest that the Supreme Court did not have the jurisdiction to issue the writ of prohibition, Now Clause 55 deals with the jurisdiction that the Supreme Court had to issue writs to the particular Courts mentioned in that clause and to the Justices and other Magistrates also mentioned in that clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the Supreme Court had and which the High Courts inherited by various Acts of Parliament to which I have drawn attention, that power and that jurisdiction must still continue. It is also-clear that the jurisdiction of the High Courts cannot be taken away by implication. I might draw attention to the well-known legal maxim that it is the office of a good Judge to enlarge his jurisdiction. In this case we are not seeking to enlarge our jurisdiction, but we have been asked to restrict and curtail the jurisdiction which we inherited from the Supreme Court. Maxwell on the Interpretation of Statutes, 8th edn., at p. 115, points out that a strong leaning now exists against construing a statute so as to oust or restrict the jurisdiction of the Superior Courts, and Maxwell points out that this feeling owed its origin to the pecuniary interests of the Judges in former times when their emoluments depended mainly on fees. Fortunately the Judges are not now open to that charge and the desire to extend the jurisdiction of the Court must depend upon more creditable motives than they were in the past. 26. It has been suggested that Section 45 of the Specific Relief Act has taken away th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that these two sections gave powers of revision to the High Court in civil and criminal matters and, therefore, the need for a writ of certiorari had disappeared and the Privy Council rejected that argument; and their Lordships observed as follows (p. 159):- Their Lordships can imagine cases, though rare ones, which may not fall under either of these sections. For such cases, their Lordships do not think that the powers of the High Courts, which have inherited the ordinary or extraordinary jurisdiction of the Supreme Court to issue writs of certiorari, can be said to have been taken away. It also seems to be curious that whereas the High Court should have the jurisdiction to issue the writ of certiorari, it should not have a similar jurisdiction to issue the cognate writ of prohibition. As I have already pointed out, these two writs are complementary and co-related to each other. It is beyond doubt or dispute now that the High Court has the power to issue the writ of certiorari. The case I have just referred, Mrs. Besant's case, laid that down and Parlakimedi's case also decided to the same effect; and our own High Court in Muljee Sicka and Company v. Municipal Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possessed of issuing writs of prohibition within the ordinary original jurisdiction of that Court is still preserved in the High Court and we have the same power and authority which the Supreme Court enjoyed. 28. The next question is whether if the writ of certiorari or the writ of prohibition were to be issued, would it offend against Section 306 of the Government of India Act of 1935 ? Now in this case the Province of Bombay and the Governor-General in Council were ' brought before the Court under Rule 584 of the High Court Rules. Neither of them was made a party and it is important to note that in the petition no relief was sought either against the Province of Bombay or against the Governor-General in Council. It is clear, therefore, that if an order is made against the respondent, the Chief Judge of the -Court of Small Causes at Bombay, that order could not possibly bind either the Province of Bombay or the Governor-General in Council. Halsbury's Laws of England,, Vol. TX, p. 836, points out that the application for a writ of prohibition might be made against the party, or the Judge to be prohibited, or both. And in this particular case the petitioners have chosen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and fortunately these Courts are not Government Courts. If the King is expected to respect the decision of the Courts, much more so are we entitled to expect that Government would respect the decision of the Court, and therefore if an order is made against the respondent, although it would not bind the Government in the strict sense of the term, it would be proper to assume that Government would carry it. 30. The third question that arises is whether an order should be made under Section 45 of the Specific Relief Act. As pointed out by the learned Chief Justice, the conditions laid down under the various sub-clauses in that section are cumulative, and before the Court could make an order every one of those conditions would have to be satisfied. The first condition which finds its place in Sub-clause (a) is that an application for such an order should be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing of the specific act. Now the question is. whether the giving of an award by the arbitrator Mr. Noronha who, on the petitioners' own contention, is acting without jurisdiction and whose award would be a nullity would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y confess that the question is not one free from difficulty; and fortunately it is not necessary for us to decide the question as the matter is much simpler when we come to Sub-clause (b) Sub-clause (b) of Section 45 requires that the doing or forbearing must be clearly incumbent on the person in his public character against; whom the order is sought. In England, as I have already pointed out, where the writ of mandamus is only issued for the purpose of doing something which is incumbent on the public officer no difficulty arises; but we have here also the right in the applicant to ask the public officer to forbear from doing something which is incumbent upon him in his public character by the law for the time being in force from forbearing, I agree with Mr. Munshi that it is not necessary that the law or the statute should specifically lay down that the public officer should forbear from doing something before the application of this sub-clause can be attracted. Now to my mind it is essential that there must be in the law for the time being in force some duty cast upon the public officer. If he does not do the duty, then the Court can call upon him to do it. If he does it improper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that authority to issue the notice under Section 26 of the Bombay Police Act, and being so clothed he was not exercising that authority properly. 31. I should also like to consider Sub-clause (d) of Section 45 of the Specific Relief Act because it had been very fully and elaborately argued at the bar. That sub-clause provides that an order under Section 45 would only be made provided the applicant has no other specific and adequate legal remedy. Now what is the interpretation to be put upon the words no other specific and adequate legal remedy ? The authorities clearly show that an alternative legal remedy must be as convenient, as beneficial and as effectual as the one which the applicant can obtain under Section 45 of the Specific Relief Act before the Court would refuse the application. It is also clear that the remedy must be remedium juris-some specific legal remedy for a legal right. It is not enough that the party may have some other right which is not a legal right which the Court can enforce. For instance, in In the matter of G.A. Natesan and K.B. Ramanathan I.L.R. (1916) Mad. 125, where a resolution of the Syndicate of the Madras University was challenged as ultra vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. As I was saying, the 'Court may refuse to make an order under Section 45 of the Specific Relief Act if it was satisfied that the applicant could obtain the same relief in the same convenient and efficacious manner by filing a suit. In this particular case I have no doubt that the right of suit was not as convenient and effectual a remedy was the application under Section 45 of the Specific Relief Act, because if the applicant wanted to sue the Government he had to give notice of sixty days under Section 80 of the Civil Procedure Code. 33. Inasmuch as the applicant has failed to comply with one of the conditions attached to Section 45 of the Specific Relief Act, namely, the one which finds a place in Sub-clause (6), I agree with the learned Chief Justice that as far as the order under Section 45 is concerned, the applicant is not entitled to that order. With regard to the writs of prohibition and certiorari, the Court has jurisdiction to issue both the writs. There is no impediment in the way of the applicant as far as Section 306 of the Government of India Act is concerned, and it would be for the learned Judge below' to decide on merits whether either of these two wr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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