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1945 (10) TMI 21 - HC - Indian Laws

Issues Involved:
1. Jurisdiction of the High Court to issue writs of prohibition and certiorari.
2. Interpretation of Section 45 of the Specific Relief Act.
3. Applicability of Section 306 of the Government of India Act, 1935.
4. Validity of Rule 75A of the Defence of India Rules.
5. Injunction sought under Section 45 of the Specific Relief Act.

Issue-Wise Detailed Analysis:

1. Jurisdiction of the High Court to Issue Writs of Prohibition and Certiorari:
The court examined whether it had the jurisdiction to issue writs of prohibition and certiorari. It was argued that the High Court had inherited this jurisdiction from the Supreme Court under Clause 5 of its Charter, which conferred the same jurisdiction as the King's Bench in England. The court affirmed that this jurisdiction was not restricted by Clause 55 of the Charter, which dealt with specific writs but did not limit the general jurisdiction conferred by Clause 5. The court cited various precedents, including Besant v. Advocate General of Madras and Ryots of Garabandho v. Zemindar of Parlakimedi, to support its conclusion that the jurisdiction to issue writs of prohibition and certiorari remained intact.

2. Interpretation of Section 45 of the Specific Relief Act:
The court analyzed whether Section 45 of the Specific Relief Act, which deals with the issuance of orders to public officers, covered both writs of mandamus and prohibition. It was concluded that Section 45 did not explicitly mention either writ, and Section 50 specifically prohibited the issuance of writs of mandamus but did not mention prohibition. The court held that the jurisdiction to issue writs of prohibition was not taken away by implication and that the conditions under Section 45 were cumulative and must all be satisfied for an order to be issued.

3. Applicability of Section 306 of the Government of India Act, 1935:
The court considered whether Section 306(1) of the Government of India Act, 1935, which exempts the Governor-General in Council and the Province of Bombay from certain legal proceedings, applied to the issuance of writs of prohibition and certiorari. It was held that since the petition did not seek relief against the Governor-General or the Province of Bombay, but only against the respondent (Mr. Noronha), Section 306(1) did not apply. The court emphasized that the parties served under Rule 584 of the High Court Rules did not automatically become parties to the proceedings.

4. Validity of Rule 75A of the Defence of India Rules:
The petitioners contended that Rule 75A of the Defence of India Rules was ultra vires and illegal. The court did not directly address the validity of Rule 75A in its judgment but focused on the procedural aspects and jurisdictional issues raised by the petitioners.

5. Injunction Sought under Section 45 of the Specific Relief Act:
The court examined whether the conditions under Section 45 of the Specific Relief Act were met for issuing an injunction. It was argued that the respondent, Mr. Noronha, was not holding a public office within the meaning of the section, and the petitioners failed to show that all cumulative conditions were fulfilled. The court held that the second condition, which required the act to be clearly incumbent on the person in his public character, was not satisfied. The court also discussed the adequacy of alternative remedies and concluded that the remedy of a suit was not as convenient or effective as an order under Section 45.

Conclusion:
The appeal was allowed in part, and the order of the trial court was set aside. The petition was remanded to the trial court for disposal on merits. The decision on the writ of mandamus was confirmed on different grounds, and the costs were awarded to the appellants. The court emphasized the importance of jurisdictional clarity and the necessity of fulfilling all statutory conditions for relief under Section 45 of the Specific Relief Act.

 

 

 

 

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