S.R. Das Gupta JUDGMENT
P.B. Chakravartti, C.J.
1. This is an appeal under Clause 15 of the Letters Patent against a judgment and order of Bosc J. by which the-learned Judge held a certain resolution adopted by the Commissioners of the Budge Budge Municipality and a notice served on the respondents in pursuance of that resolution to be both invalid and directed their cancellation under Article 226(1) of the Constitution of India. The learned Judge also directed the Commissioners to determine according to law the applications made by the respondents for renewal of their licenses. Against that decision the Commissioners have, by their Chairman, appealed.
2. The appeal came up for hearing in the first instance before a Division Bench constituted 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 wasnot 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 before it so that alt parties might make their submissions on the two preliminary points. The appeals placed before us included both appeals arising out of matters which had taken place within the ordinary original civil jurisdiction of the Court and appeals arising out of matters which had taken place outside. We had thus the advantage of hearing the questions argued from all possible points of view and in their relation to all possible sets of circumstances, except that we had no case involving a purely criminal matter.
4. It will be convenient to deal first with the two general questions before entering upon the special facts of the present case.
5. The first question is whether an appeal lies to the High. Court itself from a judgment of a single Judge of the Court, given under Article 226 of the Constitution. The Constitution provides for no appeal within the High Court, but merely empowers the High Court to issue directions, orders or writs, including writs of certain specified kinds, for the enforcement of the fundamental rights or for any other purpose. It was accordingly contended that when a single Judge dealt with an application under Article 226, he dealt with it as the High Court and after he had so dealt with it, there was no warrant for the High Court itself dealing further with it by way of hearing an appeal. The power given by Article 226, it was argued, was given to the High Court and as soon as a Judge of the High Court exercised it, it was exhausted, whether he issued a writ or order or refused to do so.
I am unable to accept that contention as sound. It is true that the power given by Article 226 is given to the 'High Court', but in the absence of any special direction in the Constitution as to how the power is to be exercised, it must be exercised by each High Court according to its own rules and to the provisions of its Letters Patent, like any other power given to the High Court in general terms. If a High Court makes a rule that applications under Article 226 shall be heard by one Judge, siting as a Court of first instance and if the Letters Patent of the Court makes the judgments of such Judge given on such applications, appealable to the High Court itself, then by the entertainment of appeals from such judgments, the power given by: Article 226 to the High Court will not be exceeded. The Appellate Division of the High Court 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' MANU/MH/0040/1951 : 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 applications for a writ of 'habeas-corpus' to different Judges of the same High Court and it was that right which was negatived. The case is authority only for the proposition that the several Judges of a High Court are not each a separate High Court for the purposes of Article 226, exercising equal, independent and coordinate jurisdictions, but it does not hold that a judgment under Article 226 is exceptional in respect that no appeal lies from it, although under the Letters Patent, an appeal would lie from judgments given in similar circumstances. I am accordingly of opinion that there is nothing in Article 223 to exclude an appeal within the High Court from a judgment given under the Article by a single Judge. I find that the same conclusion was reached by the Madras High Court in the case of -- 'M. Ramayya v. State of Madras', MANU/TN/0185/1952 : AIR1952Mad300 (B) though on different grounds.
6. Passing now to the rules of the Court, the right to appeal from a decision of a single Judge is given by Clause 15 of the Letters Patent which provides that subject to certain exceptions, an appeal shall lie to the High Court
"from the judgment ..... of one ofthe Judges of the said High Court, .....pursuant to Section 108 of the Government of IndiaAct."
The Government of India Act referred to is the Act of 1915, as amended by the Acts of 1916 & 1919. Although that Act was replaced by the Act of 1935 & the latter Act also has since been replaced by the Constitution, the reference in Clause 15 to the 'Government of India Act' has remained unaltered. It may be pointed out that though the year of the Act is not given, the Act of 1915 is correctly referred to, because under Section 45 of the amending Act of 1919, the mode of citation for the principal Act of 1915, as amended by the two later Acts, is simply the 'Government of India Act.'
7. The main argument against the maintainability of an appeal was that in order to be appealable under Clause 15, a judgment must be a judgment pursuant to Section 108 of the Government of India Act, but a judgment given by a single Judge of this Court, on an application under Article 226, was not a judgment so pursuant. Section 108 of the Government of India Act is in the following terms :
"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 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 theabove 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 date of the Act and any jurisdiction, subsequently conferred on the Court was outside its ambit. The argument was completed by saying that the rule under which a single Judge exercised jurisdiction under Article 226 had not been made under Section 108 of the Government of India Act, but under Section 129, C. P. C., at any rate so far as he exercised such jurisdiction the limits of the original jurisdiction of this Court.
9.The argument that the jurisdiction under Article 226 was a new jurisdiction was developed by saying that it was not only a new but also a special jurisdiction, in exercising which the High Court acted as a special Court. Accordingly, neither Clause 15, nor Section 108 of the Government of India Act would apply to judgments given in exercise of such jurisdiction and no appeal could He from them, as no right of appeal had been specifically given.
10. A last argument was based on two of the exceptions contained in Clause 15, viz., "an order made in the exercise of revisional jurisdiction" and "an order passed in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act." It was contended that at least when issuing writs or orders under Article 226 outside the original jurisdiction, the Court exercised not original jurisdiction, but revisional jurisdiction or the power of superintendence and therefore in such cases the judgment was not appealable.
11. I shall take these contentions in the order I have stated them. As regards the first of the contentions, it might seem strange that whether an appeal lay or not would depend upon the rule under which the work was assigned to the Judge. A right of appeal, however, does not exist in the nature of things, but is a creature of enactment and therefore if a right under Clause 15 of the Letters Patent is to be made out in the present case, the judgment in respect of which the right is claimed must be shown to be "pursuant to Section 108 of the Government of India Act," as contended by the respondents.
12. The contention that Clause 15 only contemplates judgments given in exercise of one or other of the jurisdictions specifically mentioned in the Letters Patent is plainly unsustainable. As long ago as in 1867, it was said by a Full Bench of seven Judges in the case of -- 'Ranee Shurno Moyee v. Luchmeeput Doogur' 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 HighCourt ..... pursuant to Section 13 of the said recitedAct". 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. that an order made by a single Judge under Section 115, C.P.C., interfering with a judgment of the Presidency Small Cause Court, was appealable under Clause 15 of the Letters Patent. A judgment given in exercise of a jurisdiction not expressly mentioned in the Letters Patent was thus held to be a judgment, pursuant to Section 13 of the Charter Act, i. e., pursuant to the rules made for the exercise of the original and appellate jurisdiction of the Court and therefore to be appealable under Clause 15.
The same view was taken in other cases in Calcutta and in Madras, but a contrary view was taken in Bombay. But the former view as to the effect of Clause 15, as it then stood, was accepted as correct and Judgments given in exercise of the revisional jurisdiction were specifically excluded from Clause 15 by an amendment of the Letters Patent in 1919. There could have been no need of such amendment if judgments given in exercise of jurisdictions not specifically mentioned in Clause 15 -were already outside the ambit of the clause. Besides, if Clause 15 was intended to be limited to judgments given in exercise of jurisdictions specified in the Letters Patent itself, there could be no reason to introduce a reference to Section 13 of the Charter Act in that clause and Clause 36 and it would have been sufficient and more appropriate to authorise the framing of rules by the latter clause itself for the exercise of the specified jurisdictions of the Court by single Judges or Division Courts. The effect of the reference to Section 13 of the Charter Act and to the exercise of the original and appellate jurisdiction vested in the Court thereunder was to import jurisdictions other than those expressly conferred by the Letters Patent, e. g., the jurisdiction of the Supreme Court vested by Ss. 9 and 10. The latter jurisdiction, as is well known, has been preserved by a series of subsequent enactments.
In my opinion, it is unarguable that nothing but judgments given in exercise of the jurisdictions specifically conferred by and mentioned in the Letters Patent is contemplated by CL 15. In actual fact, judgments given in exercise of several jurisdictions not expressly mentioned in the Letters Patent have been held to be appealable. One instance is a judgment in exercise of the jurisdiction to punish for contempt of the Court --'Mohendra Lall v. Anundo Coomar' 25 Cal 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' MANU/PR/0038/1931, 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 pursuance of rules made under Section 108, which means and involves that Section 108 must independently exist as a provision in force at the time in order that the High Court may frame rules under it or the Chief Justice may determine under it which Judge shall sit on which Bench. a further difficulty must also be reckoned with. If the reference to Section 108 of the Government of India Act in Clause 15 is to be taken literally and if the effect of that section, read with Section 106(1), be that by Section 108 the High Court was empowered to make rules only with regard to jurisdictions vested in the Court at the commencement of the Act, as contended by the respondents, a judgment given in the exercise of any jurisdiction subsequently conferred would undoubtedly not be, a judgment within the meaning of Clause 15 & no appeal would certainly lie from such a judgment. But that would not be the only result. Another result would be that if the subsequent law conferring such further jurisdiction did not itself empower the High Court to make rules for the exercise of the jurisdiction by one or more Judges or by Division Courts, the High Court would have no power to make any such rules at all and the whole Court would have to sit in order to exercise such jurisdiction. Clause 36 of the Letters Patent would offer no solution of the difficulty, for that clause also speaks of performance of the functions of the Court by any Judge or any Division Court, "appointed or constituted for such purpose in pursuance of Section 108 of the Government of India Act, 1915". A construction which leads to so extraordinary a result cannot possibly be the true construction of Clause 15.
14. The respondents did not abandon their contention that Clause 15 only contemplated judgments given in exercise of jurisdictions existing at the commencement of the Government of India Act of 1915, but they were prepared to concede that, at the highest, judgments within the meaning of the clause could be judgments in exercise of one or other of the jurisdictions existing at the commencement of the Act of 1935. That concession was made, because the Act of 1935, which repealed the Act of 1915, contained a saving provision in Section 223 which preserved the jurisdiction and powers of the Court,
"including any power to make rules of Court and to regulate the sittings of the Court and members 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, therespondents' 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, would still remain.
15. Strong reliance was placed by the respondents on the decisions in -- 'Dhirendra Kumar v. A. Latiff MANU/WB/0368/1936 : 45 CWN 181 and -- 'Nur Mohammed v. S. M. Solaiman' MANU/WB/0187/1944 : 49 CWN 10 and stronger reliance was placed on the decision in -- 'India Electric Works Ltd. v. Registrar of Trade Marks' MANU/WB/0016/1946 : AIR1947Cal49 . In my view, properly regarded, the first two decisions only construed the Calcutta Municipal Act of 1923 and held that the Act did not intend election disputes, which it directed to be tried by the High Court, to go beyond the Court of first instance and to be further agitated in appeal. It is true that one of the grounds given in the second.case was that the Act did not add a new subject-matter to the ordinary, original jurisdiction of the Court but conferred a special jurisdiction and therefore a judgment given in exercise of such jurisdiction would not be a judgment, as contemplated by Clause 15. But that ground has reference not to the date of the jurisdiction but to its character and will have to be considered, in connection with another contention of the respondents. Neither of the first two cases, in my opinion, touches the present question.
In the third case, the learned Judges proceeded on the view that the rule under which the trial Judge had exercised jurisdiction in an appeal under the Trade Marks Act had in fact been made under a provision of that Act and not under the general provision contained in Section 108 of the Government of India Act of 1915 or Section 223 of the Act of 1935. On that view, it was not necessary for the learned Judges to consider what jurisdictions were contemplated by Section 108 of the one Act or Section 223 of the other or whether Clause 15 was limited to judgments given in exercise of jurisdictions existing at the commencement of the one or the other Act. The observations made by them on the meaning of "pursuant to Section 108 of the Government of India Act" were therefore only 'obiter dicta'. I am referring to that fact not for the purpose of suggesting that the well-considered opinion of the learned Judges may be disregarded, but only for the purpose of pointing out that if we find ourselves unable to accept that opinion as correct, it will not be necessary for us to make a reference to a Full Bench.
With the greatest respect to their Lordships, I am unable to agree that 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.', MANU/MH/0063/1951 : 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 byan 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 the commencement of the Act of 1935 could not be a jurisdiction contemplated by Section 223, but it found it unnecessary to discuss that question, as Article 225 had since come into force in 1950 and since that Article preserved all jurisdictions of the High Court existing at the date of the Constitution, the jurisdiction under the Trade Marks Act, conferred in 1940, could well be regarded as a jurisdiction vested by Article 225. If so and if Article 225 was now to be read for Section 108 in Clause 15 by virtue of Section 8 of the General Clauses Act, which was identical with Section 3S(1) of the Interpretation Act, a judgment in an appeal under the Trade Marks Act would be a judgment pursuant to Article 225 and therefore appealable under Clause 15.
16. I am not sure if this reasoning of the Bombay High Court by itself solves the problem. The rules framed by the Calcutta and Bombay High Courts for exercise of the jurisdiction under the Trade Marks Act were in fact framed at a time when Article 225 was not in existence. In view of that fact, I am doubtful if, simply because Article 225 preserves the jurisdiction under the Trade Marks Act and absorbs it, as it were, into the jurisdictions warranted by the Constitution itself, as distinguished from any jurisdiction that may be conferred by particular legislative enactments or simply because Article 225 is now to be read for Section 108 in Clause 15, it can be said that the rules framed under the Trade Marks Act are now to be treated as framed under Article 225 and that therefore a judgment given by a Judge to whom jurisdiction under the Trade Marks Act was assigned by those rules is a judgment pursuant to Article 225 and so a judgment within the meaning of Clause 15. The argument has always been that there is a distinction between the jurisdictions which the High Court may possess at any given point of time and the sources from which the rule-making power with regard to those jurisdictions is derived and while that argument may not be available in respect of any rules for the exercise of jurisdiction under the Trade Marks Act, framed alter the Constitution, in respect of rules framed before the Constitution, it is not) disposed of by the mere enactment of Article 225. But, in any event, the Bombay decision only covers jurisdictions existing upto the date of the Constitution. The present case concerns a jurisdiction 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 the former class, no new rules have been framed and they are to be made in accordance with the provisions for rules nisi contained in Chapter XX of the Original Side Rules. For applications of the latter class, a rule, being Rule 8 of Chapter II of the Appellate Side Rules, has been framed and that rule directs such applications to be made before "the Judge of the Original Side taking interlocutory applications or such other Judge as the Chief Justice may appoint". Under what power the rule was framed, it has not been expressly stalled.
18. When a single Judge deals with an application under Article 226 by reason of an assignment of business made under these rules, is the judgment passed by him a judgment "pursuant to Section 108 of the Government of India Act"? By virtue, first, of Section 38(1) of the Interpretation Act, 1889, which applied to the Government of India Act of 1935 and then of Section 8 of the General Clauses Act which applies to the Constitution, the reference to Section 108 of the Government of India Act in Clause 15 must now be construed as a reference to Article 225 of the Constitution. What does "pursuant to Art 225" mean? Two requirements are involved : the judgment must be one given in the exercise of a jurisdiction conferred or warranted by Article 225 and it must be one given by a Judge, acting under a rule made or maintained under the authority of the Article. It is therefore necessary to see what the provisions of Article 225 in those two respects are.
19. Directly, Article 225 deals only with the existing High Courts in Part A States and its provisions fall into three parts. It preserves the jurisdiction which such High Courts had immediately be'fore the commencement of the Constitution; preserves the power they had at that date "to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts"; and it makes such prior jurisdiction and power "subject to" the provisions of the Constitution and to the provisions of any law of the appropriate legislature. In my opinion, the words, "subject to" are not merely restrictive of the jurisdiction and rule-making power of the existing High Courts but connote enlargements of or additions to them as well. Certain enlargements of jurisdiction have been made by the Constitution 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 the result that with regard to new powers conferred on the High Courts by the Constitution itself or conferred subsequently by legislative enactments, there would be no provision in the Constitution, vesting them jurisdiction in the High Courts.
Assuming that the relevant provisions in the Constitution conferring new powers on the High Courts may themselves be regarded as conferring jurisdiction, the same cannot be said of future legislative Acts and if the words 'subject to' are only restrictive and only contemplate curtailment of the jurisdiction, there would be no provision in the Constitution itself for jurisdictions conferred by subsequent laws of the appropriate Legislature. It is true that Article 246, read with the Lists in Schedule 7, confers on the Legislatures the power to make laws regarding various matters and the appropriate Legislature may, in exercise of that power, confer new jurisdictions on the High Court. But Article 246 is concerned with the powers of the Legislature and I do not think that provision regarding new jurisdictions of the High Court, derived from future legislative Acts, is to be sought for there. It cannot be correct to read the Constitution in such a way as to lead to the result that the provisions contained in it regarding the jurisdiction of the High Courts do not themselves comprise any provision for new and further jurisdictions that may be conferred by future legislative Acts, but i'f such provision is to be found anywhere in .Chapter V of Part VI which deals with High Courts, it can be found only in opening words of Article 225. It would thus seem to be inescapable that with regard at least to laws of the appropriate Legislature, the words "subject to" in the opening clause of Article 225 cover also enlargement of jurisdiction by such laws. Obviously, the words cannot bear a different meaning with regard to "the provisions of this Constitution" and must have the effect of importing into Article 225 the enlargements of jurisdiction made by the Constitution itself. If so, the jurisdiction conferred by Article 228 is a jurisdiction within Article 225 and therefore, in so far as jurisdiction is concerned, a judgment given in exercise of the jurisdiction conferred by Article 226 is a judgment pursuant to Article 225.
20. But is it also pursuant to Article 225 in so far as it is given by 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 powergiven by Article 225 to make rules for the regulation and distribution of the business of the Court must therefore be sought in Section 108 of the Government of India Act. Although I have held that the jurisdiction contemplated by Article 225 is not limited to jurisdictions existing at the date of the Constitution and although Art 225 is now to be read for Section 108 in Clause 15, still, since the power to make rules for the sittings of the Court and of the Judges is not given by Article 225 directly and in general terms but is made to depend ultimately on Section 108 of the Act of 1915, it must be seen whether the power under that section covers power to make rules and determinations for the exercise of all the jurisdictions contemplated by Article 225.
21. The terms of Section 108 of the Act of 1915 have already been quoted. Before proceeding to consider their effect, it will be useful to recall at this stage that in respect of matters arising within the original jurisdiction of the Court, a single Judge deals with applications under Article 226 under, the ordinary rules of the Original Side and that it is only with respect to matters arising outside the original jurisdiction that he deals with such applications under a rule newly made. There can be no doubt that the Original Side Rules were made or can be treated as having been made under Clause 3S of the Letters Patent in pursuance, as the clause requires, of Section 108 of the Government of India Act. In the case of a judgment on an application under Article 228 given by a single Judge as a Judge sitting on the Original Side, there would thus seem to be no difficulty in holding that it is a judgment pursuant to Section 108 even as respects the rule under which the Judge was so sitting and dealing with the application. I am not forgetting the objection that Section 108 empowered the High Court to make rules only for the exercise of those jurisdictions which existed at the commencement of the Act of 1915, but if, in fact, jurisdiction under Article 226 was assigned to a single Judge and he exercised it under a rule framed in pursuance of Section 108, that is one of the old Original Side Rules, it seems to be immaterial for the present purpose whether he did so correctly or not or whether the jurisdiction was correctly so assigned. Since, however, the present case is not a case which was dealt with on the Original Side, the 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 Letters Patent previously referred, contained only the first provision but not the second. Section 108 of the Government of India Act contained both. The importance of that distinction will appear later.
23. The argume'nt before us and the decision in MANU/WB/0016/1946 : AIR1947Cal49 on which the argument was mainly based, was confined to Sub-section (1) of Section 108. Because Clause 15 speaks of judgments 'pursuant to Section 108', because Section 108(1) speaks of rules for the exercise of "the Original and Appellate Jurisdiction vested in the Court" and because Section 106(1) of the Act of 1915 declares the jurisdiction of the High Courts to comprise all such jurisdictions as were vested in them by Letters Patent and "all such jurisdiction, powers and authority as are vested in those Courts respectively at the commencement of this Act", it was said that any rule framed for the exercise of any jurisdiction not existing at the date of the Act of 1915 would not be a rule authorised by Section 108 and accordingly a judgment, given by a single Judge in exercise of such a jurisdiction and under the authority of such a rule, would not be a judgment pursuant to that section. I have already pointed out the absurd position which such construction of Section 108 and Clause 15 would create. If I have referred to the matter again, it is for the purpose of indicating two more answers to the argument of the respondents.
24. In my opinion, it is a mistake to construe the Letters Patent in the manner of an ordinary legislative Act giving certain specified powers to the Court. The Letters Patent of a Court gives its constitution & powers in general & its object is to set up the structure of a judicial machine with functions defined in general terms which must be comprehensive & elastic enough to admit all specific powers & jurisdictions that may be conferred from time to time. Such also must be the nature of provision in a Constitution Act Which sets up a Court of judicature and defines its jurisdictions and powers. Since the Letters Patent of a Court and the provision in the Constitution Act creating it are the fundamental sources from which the Court derives its authority to exist & to function, such provisions must in the very nature of things be regarded as exhaustive and contain in them room for all the jurisdictions that the Court may ever legally exercise. It 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 have intended to leave out jurisdictions that might be vested after the date of the Act and the language it used must be construed as comprising all such jurisdictions.
Similarly, when Clause 15 of the Letters Patent speaks of "the judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to Section 108 of the Government of India Act", all that it, in my view, means is that such Judge must function as a single Judge or as a member of a Division Court under a rule framed by the Court and not otherwise. The reference to Section 108, it appears to me, is only a reference to the general provision under which rules of the Court are framed and is not intended to limit the judgment to judgments given by a Judge, acting under a rule properly framed under Section 108. Even if such be the intention, the position would not be different, because the power conferred by Section 108 is power to frame rules for the exercise of all jurisdictions, whether existing at the date of the Act of 1915 or subsequently vested. If that be so and if that power has been preserved by Article 225 of the Constitution, a judgment of a single Judge, in exercise of the jurisdiction conferred by Article 226, is, even in respect of the rule assigning such jurisdiction to him, a judgment pursuant to Section 108 or Article 225.
25. The other answer to the argument of the respondents is that Section 108(2) is the only provision : which empowers the Chief Justice to determine what Judge shall sit singly and what Judges shall constitute the Division Courts. That part of the section also is now incorporated in Article 225. Outside Section 108(2), now Article 225, there never was and there is not now any other provision which : gives power to the Chief Justice to nominate from time to time particular Judges for particular Courts or Benches. It is inconceivable that any Legislative Act should purport to give such power to the Chief Justice in respect of any new jurisdiction that it may confer and no Act has ever sought to do so. When therefore a particular Judge sits in a particular Court, he does so under a determination by the Chief Justice, whatever jurisdiction he may exercise and since such determination can only be made under Section 108(2), now Article 225, he sits and exercises jurisdiction, pursuant to Section 108. Even if it be conceded that the exercise 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/- 9-6-1952 (Cal) (K). In my opinion, that case was rightly decided and if I have not. made a more detailed reference to it, it is because the decision was not discussed before us.
27. I do not think that there is any substance in the contention that Rule 8 of Chapter II of the Appellate Side Rules under which a single Judge hears applications under Article 226 in matters arising outside the original jurisdiction of the Court was framed under Section 129, C. P. C. It was pointed out that the rule had been published in the Calcutta Gazette, as rules framed in accordance with Section 129 were required by Section 130 to be, and that the editor of the Quarterly Legislation Recorder, a Government publication in which the rule had been published along with other rules and Acts in a book-form, had described it as made under the Civil Procedure Code by inserting a heading to that effect. Publication in the Calcutta Gazette does not indicate that the rule was made under the Civil Procedure Code, since rules not framed under the Code are also published in the Gazette. The heading in the Government publication means nothing. On the other hand, the rule could not have been made under Section 129, C. P. C., because that section only preserves the power of the High Court, given by Clause 37 of the Letters Patent, to make rules for regulating the procedure in the exercise of its original civil jurisdiction and has nothing to do with the power to make rules for the exercise of both original and appellate jurisdiction by Judges sitting singly or by Division Courts which is the subject-matter of Clause 36, read with Section 108 of the Government of India Act.
28. It was also contended that the jurisdiction conferred by Article 226 was a new and special jurisdiction in respect of which the High Court was constituted a special tribunal and, therefore, on the one hand, Clause 15 which was applicable to the High Court as a High Court would not apply and, On the other hand, no appeal would otherwise lie, as no right of appeal had been specifically given. Strong reliance was placed on the case of MANU/WB/0187/1944 : 49 CWN 10 in support of the argument that the jurisdiction under Article 226 was not merely an extension of the ordinary jurisdiction of the Court by the addition thereto of a new subject-matter nor was the effect of the Article merely to change the procedure in respect of matters within 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' MANU/PR/0005/1947 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 directions, orders and writs of certain specified kinds throughout the territories subject to their respective jurisdictions. We need not consider here whether apart from the power given by Article 226, the power to issue writs of certiorari, quo warranto and prohibition within the limits of their original jurisdictions still survivesin the case of the High Courts of Calcutta, Madras and Bombay. The power given by Article 226 is not that power, taut a power to issue writs of habeas corpus and mandamus which even, the Presidency High Courts had no longer any power to issue and also a power to issue directions and orders "to any person or authority including, in appropriate cases, any Government". Such a power given to all the High Courts is undoubtedly a new power. But while i't is new in the sense that the power to act or give relief in such manner or according to such procedure did not exist before, it is not new or special in the sense that it vests the High Courts with a new function outside and unrelated to the jurisdiction they normally exercise and constitute them special tribunals for a special purpose. All that Article 226 does is to empower the High Courts to give relief in a new form and in accordance with a more direct procedure or, in other words, it puts the High Courts in possession of a new remedy for grievances which previously had to be redressed in other ways. I do not therefore think that the argument that in exercising jurisdiction under Article 226, the High Courts act as special tribunals, has any force. They still function as ordinary Courts and it is only the procedure in respect of matters lying within their ordinary jurisdiction and the form of relief that may be given which are changed. There is thus no reason why an appeal should not lie from. a judgment given in exercise of the jurisdiction under Article 226, if under the rules of the Court an appeal lies. I also think that a Constitution giving the existing Courts new or wider powers of giving relief is a very different thing from a statute referring some special kind of dispute to established Courts and decisions bearing on the latter class of cases are altogether beside the point.
29. It was lastly argued that the jurisdiction under Article 226 was a revisional jurisdiction, at least when exercised outside the original jurisdiction of the Court and, therefore, judgments 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 jurisdiction as respects the issue of directions or orders. In England also, the issue of the prerogative writs is treated as a matter of original jurisdiction, (Halsbury, Hailsham Edition, Vol. 9 pp. 701 et seq.) It is, however, not original, in the case of the Presidency High Courts, in the limited and technical sense of the ordinary original civil jurisdiction of the Letters Patent which carries certain territorial limits, but it is original as distinguished from appellate -- 'Venkataratnam v. Secretary of State' MANU/TN/0186/1929 : AIR 1930 Mad 896. The jurisdiction cannotbe revisional, because it is not concerned with revising any order of a Court subordinate to the High Court, as contemplated by Section 115, Civil P. C., nor does it appertain to the general power of superintendence conferred by Section 107, Government of India Act, now Article 227. The argument that a judgment given on an application under Article 226 is a judgment given in exercise of a revisional jurisdiction and, therefore, not excepted from Clause 15 of the Letters Patent, is thus not sustainable.
30. All grounds taken in support of the contention that no appeal lies thus fail.
31. The next contention was that assuming an appeal lay from the judgment of Bose, J. on the basis that it was a judgment of a single Judge given in exercise of an original jurisdiction, Article 151, Limitation Act, would apply to the appeal and, therefore, not having been filed within a period of 20 days from the date of the order, as prescribed by Article 151, the appeal was barred by limitation.
32. The judgment in the present case was delivered on 18-3-1951, but the appeal was not filed till the 5th June. It was not disputed by the Appellant that if 20 days' limitation applied, the appeal was time-barred. On the other hand, the respondents conceded that if the period of limitation was 80 days which had been adopted in practice in the case of such appeals, the appeal was in time, in view of the period taken for obtaining a certified copy of the judgment.
33. It appears that the practice of treating such appeals as governed by a 60 days' rule of limitation is based on a very circumlocutory process of computation. No period of limitation has been directly prescribed. But the new Rule 8 of Chapt. 2 which deals with applications for the issue of orders or writs outside the Original Side of the Court, has said '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 AppellateSide 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 sit as a Judge on the Appellate Side, but if one has to go by rules, the Court has also said by another rule, Rule 15A of Chap. 5, that the applications shall be treated as revisional applications. If they are revisional applications on the Appellate Side, Rule 2 of Chap. 8 would not apply, because so far as Judges sitting singly are concerned, Chap. 3 only contemplates Judges, sitting in second appeal, who are the only Judges sitting singly on the Appellate Side contemplated by Clause 15 of the Letters Patent. Whether a Judge, sitting singly and dealing with applications for the issue of writs or orders outside the Original jurisdiction, exercises original or revisional jurisdiction, he does not, in any event, exercise "appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court" and, therefore, there can be no question of applying the rules contained in Chap. 8 of the Appellate Side Rules. But even assuming that under Rule 8 of Chap. 2, read with Rule 2 of Chap. 8 the judgment of a Judge, dealing with applications under Article 226 in respect of matters outside the Original jurisdiction of the Court, is "a judgment of a Judge sitting singly on the Appellate Side", the period of limitation prescribed by Rule 2 cannot still apply, because if the Judge in fact exercises original jurisdiction, as I have held he does, the application of Article 151, Limitation Act, cannot be excluded by any rule made by the Court. Nor is the matter advanced by the direction given that appeals from such judgments shall be treated as appeals from original orders for the purposes of nomenclature and the preparation of the Paper-book. The Court cannot override a Statute. The same view was taken by Das Gupta and Lahiri, JJ. in -- 'Belait Sheikh v. State of West Bengal', MANU/WB/0083/1952 : AIR1952Cal753 (P), a decision which was merely mentioned before us, but not discussed.
35. It was however, contended that while Rule 2 of Chap. 8 of the Appellate Side Rules might not apply, Article 151, Limitation Act, would not apply either, because the jurisdiction exercised under Article 226 was not original jurisdiction, as contemplated by the Article. The conclusion which that argument led up to was that there was at present no period of limitation and so long as the Legislature or 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 appear from the judgment of Sir Barnes Peacock in 12 W. R. 458 (Q). But presumably, the rules of the 5-8-1867 covered all appeals under the Letters Patent. The presumption is strengthened by para 2 of Section 6. Limitation Act, 1871, which provided that nothing contained in the Act would affect periods of limitation prescribed for appeals from any decree, order or judgment of a High Court in the exercise of its original jurisdiction. Obviously, the period of limitation for such appeals was left to rules madeby the Courts. Article 151 was first introduced in the Act of 1877 and was then confined to the three Presidency High Courts at Calcutta, Bombay and Madras. In the same year, by the Punjab Courts' Act (17 of 1877), Section 18, the "Chief Court of Punjab" was added. Subsequently, the Chief Court of Lower Burma was also added by the Lower Burma Courts' Act (6 of 1900), Section 47. By the Repealing and Amending Act (8 of 1930), Schedule I, Item 2, the reference to the Chief Courts of the Punjab and Lower Burma was changed into "or Lahore and Rangoon." as those Courts had in the meantime become High Courts. After the separation of Burma from India, the reference to Rangoon was deleted by the Government of India (Adaptation of India Laws) Order, 1937. Thereafter, after the partition of India, the reference to the Lahore High Court was converted into "the High Court of East Punjab" by the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948, When exactly or by what enactment Nagpur was added, it was not possible to trace.
38. On the basis of the history of Article 151 set out above, it was contended that the "original jurisdiction" contemplated by it was the original jurisdiction as specified in the Letters Patent of each High Court and, therefore, the jurisdiction under Article 226, although it might be original in nature, as distinguished from appellate, was outside it. I can see no ground for accepting that construction of the Article as correct. It was said that the three Presidency High Courts with which the Article began, had various kinds of original jurisdiction at that time, specified in their Letters Patent and an attempt was made to show that whenever the Article was extended to a new Court, the Court was one which had some original jurisdiction of a foundational kind under the Act 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 provide only for judgments given in the exercise of some original jurisdictions and left the rest unprovided for and still to be dealt with by the rules of the Court. It was held in the case of -- 'Punjab Co-operative Bank Ltd. Lahore v. Punjab Cotton Press Co: Ltd.' AIR 1941 Lah 257 that Article applied to appeals from judgments and decrees made by the specified High Courts in the exercise of the original jurisdiction, whether ordinary or extra-ordinary or specially conferred by statutes. Although there is some difference of judicial opinion as to whether an appeal lies at all from judgments given in the exercise of allthose jurisdictions, the view taken as to the period of limitation applicable, if an appeal lies, is, in my opinion, the correct view.
39. The result is that the present appeal must be held to. have been filed out of time. But in view of the confusion prevailing in the matter and the mistaken practice which has come to be adopted, I consider it to be a fit case in which the period of limitation should be extended under Section 5, Limitation Act. A verbal application in that behalf was made. I would allow that application and condone the delay.
40. Turning now to the merits of the appeal, it arises out of an application made by the Respondents for an order on the Commissioners of the Budge Budge Municipality to forbear from giving effect to a resolution, dated 24-2-1950 passed by them and to cancel or recall a notice, dated 27-2-1950, served on the respondents. The respondents who are three in number alleged in their application that they owned two beef-shops, situated on Banjan Haria Trunk Road in Ward No. 4, Charial, Budge Budge in the district of 24 Parganas and had been carrying on business for a long time under licenses under Section 370(1), Bengal Municipal Act, granted to them by Budge Budge Municipality. Their shops served the local Mohammedans who were the principal inhabitants of the locality where the shops were situated and whose staple food, particularly in the case of the poor section, was beef. The conditions of the licenses, it was said, had never been violated. But after one Pandit Ram Chandra Awasti, an orthodox up-country Brahmin, had become Chairman of the Municipality, the Commissioners, at a meeting held on 24-2-1950, adopted a resolution for closing down the municipal slaughter-house with effect from 1-3-1950 and 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 reasonable grounds and was valid in law. They alleged that Ward No. 4 was a Hindu majority area. They did not deny the allegation that applications for renewal of the licenses had been made, but stated that in view of the resolution passed, no question of renewing the licenses arose.
42. The resolution was in the following terms:
"In view of the fact that due to indiscriminate slaughter depletion of cattle wealth -- the backbone of this country--has become the order of the day and inasmuch as acute shortage of draught animals and paucity in milk supplyhas brought in their wake woes and miseries in abundance and because providing an adequate diet full of milk is one of the main "factors in building up a strong nation of healthy and happy inhabitants, resolved that with a view to increasing the yield of milk and cattle wealth and their progeny for the general economic uplift of the masses specially the agricultural producers of the country, the municipal slaughter house for slaughtering cow, bull, bullock or buffaloes be closed down with effect from 1-3-1950 and further resolved that no licence under Sections 408 and 418 be issued for slaughtering or for sale of beef or flesh of such animals within the municipal area, excepting on bona fide religious festivals and on ceremonial occasions.
It is also resolved that the services of the watchman of Municipal slaughter house be dispensed with from 1-3-1950 in payment of one month's salary in lieu of notice".
43. The notice read as follows :
"Dear Sirs,
With a view to increase the supply of milk and cattle wealth and their progeny, the commissioners of the Budge Budge Municipality in their special meeting held on 24-2-1950 have decided to close down the Municipal slaughter house and no license for slaughtering or for sale of beef or flesh of buffaloes, etc., will be issued henceforth. This will come into effect from 1-3-1950, which please note."
44. Bose, J. held that a license could be withheld only on the grounds mentioned in Section 370(2), Bengal Municipal Act, but the Municipality, in passing the resolution and issuing the notice in pursuance thereof, had proceeded on wholly extraneous considerations. The learned Judge did not think that the allegation of mala fides had been proved, but he held that the Commissioners who were bound to keep within the four corners of the statute 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 opposite party is called upon to answer.
46. The argument based on Article 48 was not repeated before us, but it was contended that the respondents had the alternative remedy of an appeal under Section 531, Bengal Municipal Act, and, therefore, could not be allowed to claim relief under Article 226. In my opinion, the learned Judge rightly decided that contention against the Municipality. There can be no appeal under Section 531unless there is an order to appeal against, but in the present case no order refusing to issue a license had been passed. Besides, the existence of an alternative remedy is not an absolute bar against an application for a writ or order under Article 226.
47. The main question is whether the learned Judge was right in making the first two parts of his order, cancelling the resolution and the notice and directing the Commissioners to forbear from giving effect to them. I feel bound to say that on that question all the relevant sections of the Act do not seem to have received attention from the learned Judge. He had before him a license under Section 370 and if the Commissioners were not giving consideration to applications for a renewal of that license, he was entitled to direct the Commissioners to do so. But the resolution does not deal with licenses under Section 370 but with licenses under Sections 408 and 418 and the notice also, since it was given in pursuance of the resolution, must be taken as contemplating licenses under those sections. To hold a refusal to issue licenses under Sections 408 and 418 to be bad because the grounds mentioned in Section 370(2) do not exist, cannot be right, because Section 370(2) applies only to licenses under Section 370(1).
48. The Bengal Municipal Act contemplates different licenses under Section 370, 407 and 418 and also a further license under Section 182. The license, last mentioned is a trade or profession license, to be taken out in respect of trades and professions mentioned in Schedule IV of the Act. One of the items in Schedule IV is retail trader or shopkeeper. But because a person takes out a license under Section 182, he does not become entitled to keep a shop for the retail sale of beef or other meat. For carrying on a retail trade in that form, he must take out a license under Section 418(1)(b). But because he takes out a license under Section 418(1)(b) as well, he does not become 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 learned Judge has held the resolution to be bad on considerations which are not relevant, since he has applied to licenses under Sections 407 and 418 considerations applicable to licenses under Section 370(1). It was said that the only license ever issued to or held by the respondents was a license under Section 370(1). If so, the resolution does not affect them and indeed no mere resolution ever affects anybody till it is applied and given effect to. The learned Judge is certainly right in holding that a license under Section 370(1) could not be withheld on groundsforeign, to Section 370(2) and on extraneous considerations -- 'B. v. Cotham' (1898) 1 Q. B. 802 ; but he overlooked the fact that the resolution 4did not refer to licenses under Section 370(1).
50. There is another reason why, in any event, the learned Judge was not right in cancelling the whole resolution. A part of it is concerned with closing down the municipal slaughter house. Section 402(1)(b) provides that the Commissioners may from time to time build and maintain slaughter-houses & Section 403 provides that they may at any time close down any municipal slaughterhouse. It is thus discretionary with the Commissioners to maintain a slaughter-house and no one has a right to insist that they must maintain a slaughter house in order to supply him with meat for the purpose of his trade. It is well settled that no writ or direction will issue for the enforcement of a statutory right unless it appears that the statute in question imposes a duty on, and does not merely vest a discretion in, the respondent, 'R. y. Marshland Smeath and Fen District Commissioners' (1920) 1 K. B. 155 . The learned Judge was, therefore, not right in cancelling at least that part of the resolution which related to the closing down of the slaughter-house.
51. For reasons I have already given, he was also not right in cancelling the rest of the resolution. The resolution, as such, does not affect the respondents, since it speaks only of licenses under Sections 408 and 418 which they do not hold and do not claim. If they ever apply for a license under Section 418 or under Section 407 and such application is refused or not considered, occasion will arise to consider their claim to such licenses.
52. But according to their application, they did apply for the renewal of their licenses under Section 370(1) and 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 Sections407 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, theconsideration 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 owncosts in the appeal.
Das Gupta, J.
54. I agree.
Banerjee, J.
55. I agree.
Das, J.
56. I agree.
S.R. Das Gupta, J.
57. I am unable toagree with the view expressed by my Lord the Chief Justice. In my opinion no appeal lies from an order passed by a single Judge under Article 226 of the Constitution.
58. In order to determine whether or notthere is right of appeal to this High Court from an order passed under Article 226 by a single Judge, the first question which arises for our consideration is whether or not Article 226 conferred a new jurisdiction on the High Court. It has been urged on behalf of the respondents that the Constitution by its Article 226 has conferred a new Jurisdiction, and as no provisionfor appeal has been made in the Constitution itself, there is no right of appeal from an order passed under Article 226 by a Single Judge to a Bench of this Court. Again, in order to determine whether or not Article 226 has conferred a new jurisdiction, we nave first of all to see what) is meant by "jurisdiction". When asked as to what is meant by "jurisdiction", Mr. Advocate General and Mr. Gupta both answered by saying that jurisdiction is power, but they at the same time contended, as I have understood them, that what has been done under Article 226 was mere extension of power. Once it is admitted that "jurisdiction" is "power", then it must logically follow that any extension of power would amount to conferring new jurisdiction. But is "jurisdiction" the same thing as "power"? To my mind "jurisdiction", is certainly not identical with "power".
Although it is difficult to give an exact definition of the word "jurisdiction", it is possible to give an idea as to what is meant by saying that a Court has a particular jurisdiction by reference to the provisions of the Letters Patent of 1865. The said Letters Patent has conferred on High Courts of the Presidency towns various kinds of jurisdiction. Clauses 11 and 12 provided for Ordinary Original Civil Jurisdiction of the High Courts. The effect of these two clauses is that a High Court will have within a particular area jurisdiction to receive, try and determine suits of every description, subject, of course, to the conditions mentioned in Clause 12. It is, therefore, the jurisdiction to receive and to try suits which is known as Ordinary Original Civil Jurisdiction. In exercising such jurisdiction High Courts may have various powers under various statutes, but they are not to be confounded with jurisdiction. For example, the West Bengal Rent Control 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 extension of power in the exercise of such jurisdiction. Mr. Kar, on the other hand, contended that Article 226 has conferred a new jurisdiction. According to him in view of the provisions contained in Article 226, whatever jurisdiction High Courts had in the matter of issuing writs disappeared and the Constitution conferred a new jurisdiction by the said Article. The question now is which of these two contentions is sound?
60. In my opinion Article 226 conferred on High Courts a new jurisdiction. It is no doubt true that by the Charter establishing supreme Court, dated March 26, 1774, the Supreme Court of Judicature at Fort William in Bengal was empowered and authorised to award and issue writs of mandamus, certiorari, procedendo or error, and by the Act establishing High Courts of Judicature in India, dated August 6, 1861, all jurisdiction and every power and authority already vested in any of the High Courts to be established in each Presidency town were preserved. Subsequently, of course, by legislative enactments some of those jurisdictions, powers and authority, for example, as to the writs of habeas corpus and mandamus, have been taken away. But the jurisdiction which has been conferred by Article 226 is a new jurisdiction. It is a jurisdiction not only to issue writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them but also to issue to any person or authority including Government any directions or order for enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. Thus, in the first place, the jurisdiction conferred by Article 226 is not limited only to issuing writs. By the said Article jurisdiction has been conferred upon the High Courts to issue any direction Or order and upon any person or authority. Even in the matter of issuing writs High Courts have been empowered to issue new writs which is evidenced by the use of the expression "writs, including writs in the nature of". There has not been merely extension of power as contended by Mr. Advocate General, but a new jurisdiction has been created in High Courts by Article 226.
In the second place, jurisdiction conferred by Article 226 has been conferred upon every High Court in India. Even if it be assumed that the High Courts of Calcutta, Madras and Bombay had, prior to the Constitution, 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 all High Courts, I shall now proceed to consider whether in that event an appeal lies from an order made by a Judge sitting singly to a Division Bench of this High Court. The Constitution itself does not provide for any such right of appeal. "An appeal", as observed by Bramwell, L. J., in the case of -- 'Sandbach Charity Trustees v. North Staffordshire Railway Co.' (1877) 3 QBD 1
"does not exist in the nature of things: aright to appeal from any decision of any tribunal must be given by express enactment."
If the Constitution itself which conferred such jurisdiction has not given any such right of appeal, how then is such a right created? Mr. Advocate General and Mr. Gupta contended, before us that such a right is derived from Clause 15 of the Letters Patent. In short, their argument is that such a order made by a Judge, sitting singly, under Article 228 is a judgment of one Judge of the High Court, and is pursuant to Section 108, Government of India Act, 1915, as contemplated in Clause 15 of the Letters Patent and is, therefore, appealable under the said clause. Mr. Kar and Mr. Basu on the other hand contended that a judgment contemplated in Clause 15 must be a judgment passed in the exercise of any of the jurisdictions vested in the High Courts by the Letters Patent of 1865. In the second place, they argued that a judgment passed by a single Judge under Article 226 is not a judgment "pursuant to Section 108, Government Of India Act, 1915", and is, therefore, not a judgment as contemplated in the said clause. They further contended that the determination by the Chief Justice that Bose J. would hear those matters is a determination which could have been made only under Section 129, Civil P. C.
62. Thus, two questions arise for our consideration: (1) Should a judgment as contemplated in Clause 15 of the Letters Patent be a judgment passed in the exercise of any of the jurisdictions already vested in the High Court by Letters Patent of 1865? (2) Is the judgment passed by a single Judge under Article 226 a judgment pursuant to Section 108, Government or India Act, 1915?
63. I shall first of all deal with the question as to whether or not a judgment passed by a single Judge under Article 226 of the Constitution is a judgment pursuant to Section 108, Government of India Act, 1915. It is conceded by the learned Advocates 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 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."
64. Reading tine said sections together it seems to me that under Section 108(1) the High Courts were given such jurisdiction, power and authority as were already vested in them at the commencement of the said Act, and it was with regard to these jurisdictions that the power to make rules was given to High Court under Section 108 of the said Act of 1915.
65. If this is the correct view to take -- which I think it is -- as to the effect of the said Act on the rule making power of High Court, then the rules framed for dealing with matters coming to High Court under Article 226 of the Constitution could not have been framed under Section 108 of the said Act because the jurisdiction conferred by Article 226 is a new jurisdiction and the judgment of a single Judge disposing of those matters cannot be said to be a judgment pursuant to Section 108, Government of India Act, 1915. The view which I am taking in this matter is fully supported by a decision of a Division Bench of this Court given in MANU/WB/0016/1946 : 'A. I. R. 1947 Cal 49 (I),. Both Gentle J. and S. R. Das J. who decided that case came to the same conclusion, namely, that the rule-making power vested in the High Court under Section 108, Government of India Act, is only with regard to those jurisdictions that were already vested in the High Court at the commencement of that Act. Gentle J. in the course of his judgment observed as follows :
"The authority, given by Section 108(1) of the 1915Statute to make rules for the exercise by one or more Judges of the Court's appellate jurisdiction, is limited to the jurisdiction then vested in the Court, that is to say, the jurisdiction conferred by Section 106(1). Such rules, therefore, cannot relate to jurisdiction conferred by an Act passed after the commencement of the 1915 Statute nor to an appeal heard by the Court pursuant to such an Act since the jurisdiction to hear such appeal is conferred by the particular Act giving the right to such appeal and was not conferred upon or vested in the Court by Section 106(1)".
66-69. 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.
'under Clause 15 of a judgment of a single Judge must yet be pursuant to Section 108, Government of India Act, that is to say, passed in the exercise of the original and appellate jurisdiction vested in it at the commencement of 1915 Act and passed by one Judge sitting, singly under Clause 38 in pursuance of the provisions of the rules made under Section 108".
If, then, the rule making power vested in the High Court under Section 103, Government of India. Act, 1915, is with regard to those jurisdictions that are already vested in the High Court at the commencement of the Act, that rule-making power cannot extend to and cannot be exercised with regard to the new jurisdiction conferred by Article 226 of the Constitution and, therefore, a judgment passed by a Judge sitting singly under Article 226 of the Constitution will not be a judgment pursuant to Section 108, Government of India Act, 1915. It is conceded that if a judgment is not pursuant to Section 108, Government of India Act, then no appeal lies under Clause 15 of the Charter.
71. As against this view it was argued before us that if the rules made by this Court relating to disposal of matters coming up before it under Article 226 and authorising a single Judge to decide such matters could not have been. rules framed under Section 108, Government of India Act, 1915, then the result would be that this High. Court could not frame any rules for disposal of such matters. Under what authority then --it was argued -- could the High Court frame rules at all for disposal of such business. The result would be, according to the said argument, that the High Court would not bo able to frame any such rules and in that event all the Judges of the High Court will have to sit together to dispose of matters under Article 226 and that would lead to an absurd situation.
72. This argument, although attractive, cannot, in my opinion, be accepted. It overlooks, the fact that Section 108, Government of India Act, is not the only source from which the High Court derives its rule-making power. The question as to the different sources from which this High Court derives its rule-making power was also fully considered! in the said case of MANU/WB/0016/1946 : AIR1947Cal49 . Das J. in his judgment, discussed this question at some length and has shown the different sources from which this High Court derives its rule-making powers and. his 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 and manners. Section 21 of the Act of settlement continued the powers of the Governor-General and Council to determine appeals and references from thecountry and provincial Courts and made them a Court of record and Section 23 empowered the Governor-General in Council to frame regulations for the provincial Courts and Councils subject to the approval of the King in Council. The High Courts Act, 1861, authorised Her Majesty to establish High Courts at Calcutta, Madras and Bombay by Section 8 provided for the abolition, upon the establishment of the HighCourts, of the Supreme Court and the SudderCourts.
Section 11 of that Act, however, continued all Acts of Parliament, Orders in Council and Charters and Acts of Indian Legislature then in force, so far as they might be consistentwith the provisions of that Act and the Letters Patent to be issued and subject to the legislative powers in relation to those matters of the Governor-General of India in Council, and Section 12 provided for the continuation of the proceedings pending in the abolished Courts as if they were instituted in the High Court but under and according to the practice of the abolished Courts respectively. Section 13, I have already mentioned, authorised that subject to any laws or regulations of the Governor-General in Council the High Court might, by its own rules, provide for the exercise, by one or more Judges or by Division Courts, of the original and Appellate Jurisdiction vested in such Court, in such manner as may appear to such Court to be convenient for the due administration of justice. Section 14 authorised the Chief Justice to determine what Judgesshould sit alone or in Division Courts. Section 15 conferred power of superintendence on the High Court over all Courts which may be subject to its appellate jurisdiction and to makeand issue general rules of practice for the subordinate Courts. The Letters Patent of 1865, by Clause 10 empowers the High Court tomake rules for admission of Advocate, etc., and by Clause 37 empowers the High Court to make rules and orders for regulating all proceedings in civil cases brought before the High Courtconsistent with the provisions of the Code of Civil Procedure, 1859.
Section 122, Civil P. C. 1908, gives powers to the High Courts and the Chief Court of Oudh to make rules regulating their own procedure and the procedure of the Civil Courts 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 powersof 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 observeis 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 108 of the 1915 Act and a judgment, to be appealable under Clause 15, has to be one "pursuant to Section 108". Clause 36 of the Letters Patent declares amongst other things, that any function which is thereby directed to be performed by the High Court in exercise of its original or appellate jurisdiction, may be performed by any Judge or by any Division Court thereof appointed or constituted for such purpose "in pursuance of Section 108, Government of India Act, 1915". Therefore when a Judge sits singly under Clause 36 in pursuance of a rule made under Section 108 and in exercise of jurisdiction assigned to a single Judge by such rule passes a judgment, not being of the kinds expressly excepted, such judgment becomes appealable under Clause 15. If a Judge sits singly under any rule made by the High Court in pursuance of any other rule-making power derived from any other source such Judge does not sit singly under Clause 36 in pursuance of Section 108 and a judgment passed by the Judge so sitting singly does not satisfy the requirements of Clause 15 for such judgment is not passed "pursuant to Section 108". I am not unmindful of the far reaching consequences of this conclusion but logically I see no way out of this position in view of the wording of Clause 15".
74. Thus it appears that Section 108, Government of India Act, is not the only source from which the. High Court derives its rule-making power. If Section 108 is clearly inapplicable -- as in my opinion it is -- then it must be presumed that rules framed for disposal of matters coming under Article 226 must have been framed under any one of the other provisions giving powers to the High Court to frame rules to regulate its own procedure. If, then, the rules framed by this High Court for disposal of matters coming up under Article 226 are not rules framed under Section 108, Government of India Act, 1915, then no appeal would lie from an order passed by a Judge sitting singly under Clause 15 of the Charter, because it is conceded that an appeal from a judgment of a Judge sitting singly under Clause 15 of the Charter would only lie if it is a judgment by one Judge pursuant to Section 108, Government of India Act.
75. As for the other question namely whether 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 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 if the commissioners at ameeting have reasons to believe that the business intended to be established or maintained would be the cause of annoyance, offence or danger to persons residing in or frequenting the immediate neighbourhood or that the area should be for general reasons kept clear of the establishment of such business. But as the learned Judge pointed out, it is clear from the resolution itself and the notice, dated 27-2-1950, that the reasons for not renewing or issuing licenses are not those specified in the said section. The learned Judge, in my opinion, was right in his view that the municipality has taken into consideration extraneous matters in passing the resolution and has exceeded its Jurisdiction or powers conferred by the statute.
78. In the second place, the said resolution is to the effect, namely, that in future no licence under Sections 408 and 418 be issued for slaughtering or for sale of beef or flesh of such animals within the municipal area except on bona fide religious festivals and occasions. Again it seems to me that the municipality in passing the said resolution exceeded its powers conferred by the Statute. Section 407, Bengal Municipal Act, provides that the commissioners may at a meeting grant or withdraw licences for the use of any premises for the slaughter of animals for the sale of their flesh for human consumption. Section 408 provides that no person shall slaughter for the sale of its flesh for human consumption at any place other than a municipal slaughter house or a slaughter house licensed under Section 407. It seems to me that the municipality has to consider each individual case as it comes up before it and should consider whether it should grant licences or withdraw licences already granted for use of any premises for the slaughter of animals for the sale of their flesh for human consumption. It cannot decide that no licences whatsoever to any person for slaughtering or for sale of beef or flesh of buffaloes will be issued in future.
79. Section 407 does not, in my opinion, authorise the municipality to take up that attitude. The result of doing so would be to make the provisions of Section 407 so far as it relates to the municipality wholly nugatory. In other words, it would mean that so far as the Budge Budge Municipality and its area are concerned Section 407 is non-existent. So far as that part of the resolution, 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 mentioned is clearly ultravires the provisions of the Municipal Act, I 'do not think that I should express any opinion on this part of Mr. Kar's contention.
81. On behalf of the appellants it has been urged before us that this application out of which this appeal arises was in any event premature and, therefore, misconceived. It was contended that all that the municipality has done is merely to pass a resolution and, therefore, it is not a specific act within the meaning of Section 45, Specific Relief Act, which the Court may require to be forborne. In other words, it is contended that what the appellants should have done was to apply for renewal of their licences and if the municipality still refused to renew, it is then only that they could come before this Court and ask for an order under Section 45, Specific Relief Act. Merely because of the fact that the municipality has passed such a resolution, it is contended, the appellants cannot seek the assistance of this Court.
82. In the first place, it seems to me that it would not be correct to say that the municipality has merely passed a resolution. The municipality has done something more. The municipality has served the appellants with a notice Intimating that no licences for slaughter or for sale of beef, or flesh of buffaloes would be issued thereafter and the said order would come into effect from 1-3-1950. Thus the municipality was not content with merely passing a resolution, but was going to give effect to the same and has notified its intention to do so to the appellants. Representations were made by the appellants to the municipality asking for reconsideration of its decision, but with no results. In the premises it may well be contended that the specific act which is required to be forborne is giving effect to the said resolution, and 'the facts and circumstances of this case show that cause of action for making an application for that purpose has arisen. In this case the very first prayer of the petition is for an order commanding the municipality to forbear from giving effect to the said resolution or the said notice, and the learned Judge has also by his said order 'inter alia,' directed the municipality to forbear from giving effect to the same and this portion of the order of the learned Judge, in my opinion, should stand.
I cannot persuade myself to hold that it would 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. In the circumstances, in my opinion, an applicationwould lie for an order directing the municipality not to give effect to the said resolution and the notice.
83. There is still a better reason for holding that the appellants were entitled to make such an application and the learned Judge could give them me said relief asked for. The application is purely an application under Article 226 of the Constitution. It has been instituted as such. It does not seem to be an application under Section 45, Specific Relief Act, and it has not even been instituted as such. Thus, the conditions appertaining to an application under Section 45, Specific Relief Act, would not be strictly applicable to an application under Article 226 of the Constitution. Under the said Article this Court has 'inter alia' power in appropriate cases to issue to any person or authority any directions or orders for any purposes. Thus Article 226 has conferred almost unlimited powers on the High Court to make suitable orders or to give suitable directions which it can exercise in appropriate cases. The present case is, in my opinion, an appropriate case where the jurisdiction conferred by Article 226 can be exercised. The Budge Budge Municipality has passed a resolution which is beyond the powers conferred on it by the Bengal Municipal Act. It intends to give effect to the said resolution and act upon it. It has in effect already put the said resolution in action and has notified in the clearest possible terms to the appellants the contents of the said resolution and the effect of it and asked them to make a note of it. In spite of several representations made in writing by the appellants to revise such decision, it has still stuck to it. It has relied on the said resolution even at the hearing before the learned Judge. In all these circumstances the Court, in my opinion, can ask the municipality not to give effect to the said resolution and the notice under Article 226 of the Constitution.
84. In the result, therefore, this appeal, inmy opinion, should fail on a preliminary ground,namely, that no appeal lies from an orderpassed by a single Judge under Article 226 of theConstitution. As for the merits of the orderpassed by Bose, J. that portion of the orderwhich directs the municipality to forbearfrom giving effect to the resolution and thenotice, except the portion of it which dealswith the question of closing down of the municipal slaughter-house, should stand. The restof the order of the learned Judge should be setaside and the appeal disposed of on those terms.
© Manupatra Information Solutions Pvt. Ltd.