TMI Blog1929 (12) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of the locality who complained that they were prejudicially affected by the order in question. The point of law raised: by them is that the order impeached was one made without jurisdiction. They contend that there is no power of review: enabling the Local Government to rescind its order purporting to be permanent under Section 38. 2. The order was issued by the Government, Ministry of Public Health. 3. Section 46 of the Government of India Act prescribes that the Presidency of Madras shall be governed, in relation to reserved subjects, by the Governor in Council, and, in relation to transferred subjects, by the Governor acting with Ministers. We are now concerned with a transferred subject. 4. Section 49 provides that orders and proceedings of the Government of a Governor's province shall be expressed to be made by the Government of the province,. It further enacts that the Governor may make rules for the convenient transaction of business, in his Executive Council and with his Ministers. It says that every order made or act done in accordance with those rules and orders shall be treated as being the order or the act of the Government of the province. 5. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term 'judicial' does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others. And if there be a body empowered by law to inquire into facts, make estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequences would be judicial acts. 11. Similarly in Rex v. Minister of Health (1929) 1 K.B. 619 Lord Hewart, C.J., cities with approval the following passage from the judgment of Atkin, L.J., in Rex v. Electricity Commissioners (1924) 1 K.B. 171 : Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not merely ancillary to or explanatory of the first, but confers on the Judges a separate authority and jurisdiction. Mr. Justice Sundara Aiyar's construction in In re Nataraja Aiyar I.L.R.(1911) M. 72 : 23 M.L.J. 393 seems, with all respect, forced and far-fetched. My view receives support from the judgment' of Mr. Justice Sadasiva Aiyar in that case: The High Court has inherited the powers of the Supreme Court and if this clause stood alone, I should, on the strength of it, hold without hesitation that we possess jurisdiction in certiorari, as extensive as that possessed by the Court of King's Bench. 17. This leads me to examine certain Statutes and Charters to which the learned Government Pleader has drawn our attention. They preceded the Letters Patent to which I have referred and serve to explain the scope and effect of clause 8 of that Patent. The first Act, which is material in this connection, is the East India Company Act, 1772 (13 Geo. Ill, c. 63). 18. Section 13 enacted that it shall be lawful for His Majesty by Letters Patent to establish a Supreme Court of Judicature at Fort William, which Court shall have full power and authority to exercise al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' justification of the said acts, and the defendant shall be fully justified, acquitted and discharged from all and every suit, action and process whatsoever, civil or criminal, in the said Court: (3) Provided always, that with respect to such order or orders of the said Governor-General and Council as do or shall extend to any British subject or subjects, the said Court shall have and retain as full and competent jurisdiction as if this Act had never been made: (4) Provided also, that nothing herein contained shall extend or be construed to extend to discharge or acquit the said Governor-General and Council, jointly or severally, or any other person or persons acting by or . under their order, from any complaint, suit or process before any competent Court in this kingdom, or to give any other authority whatsoever to their acts than acts of the same nature and description had by the laws and statutes of this kingdom before this Act was made. 26. It is the first section that is now material. In regard to the matters specified, it totally removes the Governor-General and his Council from the jurisdiction of the Supreme Court. 27. What I have so far said pertains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, or any' other act, matter or thing whatsoever, committed, ordered or done by them in their public capacity, or acting as Governor-General, or Governor and Council. 31. The limitation here mentioned, it may be said, is not quite as extensive as that in the Act itself, for in this clause, only suits or actions are mentioned, whereas the Act totally excludes all jurisdiction and authority. This is a detail which may be ignored, it being obvious that the powers of the Court as laid down in the Act cannot be enlarged by the Letters Patent issued under it. 32. Now let us go back to clause 8 of this Charter on which, as I have said, Sir C. P. Ramaswami Aiyar so strongly relies. It confers on the Judges of the Supreme Court at Madras the same jurisdiction as that possessed by the Judges of the Court of King's Bench. Perfectly true; but this clause is subject to the sections of the Act which controls the Charter. The position may be thus summed up. The Charter of the Calcutta Supreme Court gave that Court, as it were, unrestricted jurisdiction. It contained a provision, clause 4, in terms identical with clause 8 of the later Charter of the Madras Supreme Court. It said, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the abolition of such last mentioned Courts. 35. It is the second clause that is material for the present purpose. Each High Court, it says, shall have the jurisdiction and power vested in the abolished Courts at the time of their abolition. It is this provision that Sir C. P. Ramaswami Aiyar invokes in his favour. By virtue of it the High Court inherits the jurisdiction of the Supreme Court, but if the power contended for was not possessed by the Supreme Court itself, this clause cannot avail the applicant. 36. Having regard to the opening words of the clause referred to, the question arises: Have the Letters Patent otherwise directed ? Far from it; they contain, in fact, no provision corresponding to clause 8 of the Charter of 1800. The High Court, therefore, derives its power to issue prerogative writs, not from any express clause in the Charter, but from Section 9 of the Act, which preserves intact the powers of the abolished Courts. It follows, therefore, that the Letters Patent have not enlarged the jurisdiction of the High Court in certiorari. I may refer to the dictum of Mr. Justice Kernan that the provision relating to the exemption of the Governor and Members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption by statute in favour of the Governor and Council enure to the benefit of the Governor acting with Ministers ? The Act says: The Governor and Council shall enjoy the same exemption as is enjoyed by the Governor-General and Council (section 3 of 39 and 40 Geo- III, c. 79 already quoted). And what is the exemption that the latter enjoy? The Statute of 1780 provides that they are exempted jointly and severally. The Governor is thus individually not amenable for acts done in his official capacity. As granting the writ against the Governor acting with Ministers involves the exercise of jurisdiction against the Governor himself, it follows, that we must even as against that body, refuse to issue certiorari. To this subject I shall return when dealing with an allied argument in connection with Section 110 of the Government of India Act. 42. The learned Government Pleader relies upon Section 31 of the General Clauses Act (X of 1897) for construing the expression The Governor and Council as including the Governor acting with Ministers. It provides (omitting words not material): In any enactment made by any authority in British. India before the date on which Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant-Governor and Chief Commissioner and each of the members of the Executive Council of the Governor-General or of a Governor or Lieutenant-Governor, and a Minister appointed under this Act shall not: (a) be subject to the original jurisdiction of any High Court by reason of anything counselled, ordered or done by any of them in his public capacity only; nor (b) liable to be arrested or imprisoned in any suit or proceeding in any High Court acting in the exercise of its original jurisdiction; 46. In the first place, the question arises, if exemption otherwise exists (as I have held it does), why was Section 110 enacted at all? Mr. Rajamannar's argument seems plausible; he says by Section 9 of the High Courts Act of 1861 (already quoted), the Court was invested with two distinct jurisdictions: first, jurisdiction of the abolished Court (second clause) and, secondly, jurisdiction freshly conferred (first clause). The old jurisdiction was excluded in the manner already stated. How was exemption to be obtained from the jurisdiction newly conferred? This was secured by the enacting of Section 110. Then another difficulty presents itself, why was this exclusion restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Governor acting with Ministers . We must construe the section reasonably. If each of these individuals enjoy immunity in respect of his public acts, it stands to reason that they should likewise be exempt when acting jointly. 50. I am, therefore, constrained to hold that our jurisdiction is excluded. The restrictive provisions, which drive us to this conclusion, are mere relics of the past, dating back to the discord of the Supreme Court and the Governor-General's Council--see Supplement to the Government of India, by Ilbert, (1916), page 154. In the words of Kernan, J., in respect of an allied matter in Collector of Sea, Customs v. Chidambaram I.L.R.(1876) M. 89 (F.B.) already quoted, the continuance of these exceptions, is both Unnecessary and useless. These remarks apply with greater force at the present day, having regard to the new constitution. In England, as shown by the numerous cases cited at the Bar, prerogative writs lie to the Government in its various departments. I see no reason for retaining the: restrictive provisions in regard to the High Courts in India. It is, however, our duty to give effect to the law as we find it. I must, therefore, re fuse, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Madras Local Boards Act, 1920, they accordingly direct that the Collector's order contained in his proceedings, dated 10th February, 1928, shall continue in force permanently and the permission is cancelled. (By order of the Government, Ministry of Public Health.) (Sd.) C.W.E. Cotton, Secretary to Government 54. The above order was subsequently rescinded by the Government by Local Self-Government (Public Health) Department, G.O. No. Mis. 673, P.H., dated 11th March, 1929, which this Court is now called upon to quash by the issue of a writ of certtorari. After mentioning in the first paragraph that the Government in G.O. No. Mis. 1214, P.H., dated 9th June, 1928, the G.O. already quoted, directed that the Collector's order suspending the resolution of the Nuzvid Union Board, No. 71, dated 20th January, 1928, should continue in force permanently, the G.O. proceeds as follows: Affidavits have now been filed by the residents of Nuzvid in respect of the working of the mill in question and the Government have after a careful consideration thereof come to the conclusion that the existence of the mill at its present site is not likely to cause danger to life, heal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er rescind the Collector's order or after giving the Local Board and, if the order affected any act of the President, the President also, a reasonable opportunity of explanation, direct that it continue in force with or without modification permanently or for such period as they think fit. 59. Under Section 134, Clause (4) of the Government of India Act: 'Local Government' means in the case of a Governor's province, the Governor in Council or the Governor acting with Ministers (as the case may require).... 60. This definition epitomizes the substance of Section 46 of the Act which is as follows: The Presidencies of Fort William in Bengal, Fort St. George, and Bombay...shall each be governed, in relation to reserved subjects, by a Governor in Council, and in relation to transferred subjects (save as otherwise provided by this Act) by the Governor acting with Ministers appointed under this Act. 61. The two limbs of the Local Government are the Governor in Council in relation to reserved subjects and the Governor acting with Ministers in relation to transferred subjects. The subject-matter of the Government orders in the present proceedings admittedly fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eader argues that the application to be in proper form should be directed against the Governor. His argument is mainly based on Section 52, clauses 1 and 3 of the Government of India Act. Under clause 1 the Governor may appoint Ministers' and any Minister so appointed shall hold office during his pleasure. Clause 3 enacts that In relation to transferred subjects, the Governor shall be guided by the advice of his Ministers, unless he sees sufficient cause to dissent from their opinion, in which case he may require action to be taken otherwise than in accordance with that advice: Provided that rules may be made under this Act for the temporary administration of a transferred subject where in cases of emergency, owing to a vacancy, there is no Minister in charge of the subject, by such authority and in such, manner as may be prescribed by the rules. 67. It is argued that, since the Ministers offer only advice Which may be discarded by the Governor and since, he can administer the departments himself without Ministers in cases of emergency, the orders passed by the Government in relation to transferred subjects are really orders of the Governor and, as such, if they are so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent asked for may be allowed at this stage. (2) Has the High Court jurisdiction to issue the writ? 68. The next question for consideration is whether the High Court has jurisdiction to issue a writ of certiorari against the Government acting with the Minister of Public Health or the Ministry of Public Health as the department is now called. The learned Government Pleader argues that it has no such jurisdiction relying on Sections 106(1) and 110 of the Government of India Act under each of which, he states, that the Government can claim exemption. Generally stated, his argument is that, while the High Court has jurisdiction to issue Writs of certiorari against Courts or persons entrusted with judicial functions [In re Nataraja Aiyar I.L.R.(1911) M. 72 : 23 M.L.J. 393 In re Mrs. Besant I.L.R.(1916) M. 1164 : 32 M.L.J. 151 and Besant v. Advocate -General of Madras the Governor acting with Ministers .is exempt from its jurisdiction by reason of anything counselled, ordered or done by that body in its public capacity . 69. I shall first deal with Section 106 (1) of the Government of India Act, the relevant provisions of which are as follows: The several High Courts . . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta and that the Governor and Council shall enjoy the same exemption, and no other, from the authority of the Supreme Court, as is enjoyed by the Governor-General and Council from the jurisdiction of the Supreme Court at Calcutta. The 4th and 5th paragraphs of Sections 2 and 3, where the exemption of the Governor and Council is specifically referred to, are as follows: Section 2, paragraph 4.-- And whereas it may be expedient for the better administration of justice in the said settlement of Madras, that a Supreme Court of Judicature should be established at Madras, in the same form and with the same powers and, authorities as that now subsisting by virtue of the several Acts before mentioned at Fort William, in Bengal. Section 2, paragraph 5.-- Be it therefore enacted, that it shall and may be lawful for His Majesty ... to erect and establish a Supreme Court of Judicature at Madras aforesaid,...with full power to exercise such civil, criminal, admiralty and ecclesiastical jurisdictions, ... and to be invested with such, power and authorities, privileges and immunities, ... and subject to the same limitations, restrictions and control within the said Fort St. George ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, or any other matter or thing whatsoever counselled, ordered or done by them in their public capacity only, and acting as Governor-General and Council. 76. Section 2 enacts that ...for any act or acts done by the order of the said Governor-General and Council in writing,..which said order, with proof that the act or acts done has or have been done according to the purport of the same, shall amount to a sufficient justification of the ' said acts, and the defendant shall be fully justified, acquitted and discharged from all and every suit, action and process whatsoever, civil or criminal, in the said Court. 77. These provisions show that the Supreme Court at Calcutta had, in the year 1800, when the Supreme Court at Madras was established, no jurisdiction over the Governor-General and Council of Bengal jointly or severally for or by reason of any act or order or any other matter or thing whatsoever counselled, ordered or done by them in their public capacity only and acting as Governor-General and Council as mentioned in Section 1; and also over persons for any act or acts done, by ; them under the authority of the Governor-General and Council. In this connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from the jurisdiction of the Supreme Court affected the Governor and Council jointly and severally. The Letters Patent of the Supreme Court were issued, on the 26th of December, 1801, in pursuance of the Statute, 39 and 40 Geo. III, c. 79. Clause 8. of that Charter enacted that the Supreme Court shall have ...such jurisdiction and authority as our Justices of our Court of King's Bench have, and may lawfully exercise, within that part of Great Britain called England, as far as circumstances will admit. 79. In exercising these various powers of the Court of King's Bench, the Supreme Court had no jurisdiction, as we have seen, over the Governor and Council of Fort St. George. It follows, therefore, that the Madras High Court, which has inherited the powers of the Supreme Court by Letters Patent, in exercising its jurisdiction, powers and authority under Section 106 (1) of the Government of India Act, has no jurisdiction over the Governor and Council jointly or severally. 80. The above conclusion is controverted by the learned Counsel for the petitioners by referring to Section 130 of the Government of India Act, which repeals the Acts specified in the fourth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction of the High Court granted to the Governor and Council cannot* be extended in favour of the Governor acting with Ministers . The petitioners are prepared to concede for this argument that the Governor in Council under the Act may claim the exemption in question. This leads to the anomaly that one limb of the Government that supplanted the Governor and Council of old is not subject to writs of certiorari, while the other is. The learned Government Pleader argues (1) that the acts done, counselled, etc., in the administration of the transferred subjects are acts done by the Governor; if this argument is not acceptable, he states (2) that under Section 31 of the General Clauses Act the Governor and Council may be identified with the Governor in Council and the Governor acting with the Ministers under the Government of India Act. 84. Section 31 of the General Clauses Act is as follows: In any enactment made by any authority in British India before the date on which Section 3 of the Government of India Act, 1919, comes into operation, and in any rule, order, notification, scheme, by-law or other document made under or with reference to, any such enactment, any refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against in these proceedings was passed by the authority concerned in its public capacity. If with respect to such an order both the Governor and the Ministers are severally exempt from the jurisdiction of the High Court, provided that the jurisdiction invoked against them is its original jurisdiction, then it follows as a matter of inference that, the Governor acting with the Ministers must also be exempt from the Court's jurisdiction. The question then for consideration is whether the writ of certiorari is issued by the High Court in the exercise of its original jurisdiction. Having regard to the authorities, this question must be answered in the affirmative: Certiorari is an original writ issuing out of the Chancery or Court of King's Bench directed in the King's name to the Judges or officers of inferior Courts commanding them to return the records of a cause or matter depending before them, to the end the party may have the more sure and speedy justice before the King or such Justices as he shall assign to determine the cause.(See Note 1 at page 14 of The Practice of the Crown Office, by Short and Mellor, 2nd Ed.) 89. The High Courts Act, Section 9, in inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damus to secure the performance of a public duty where no adequate remedy existed by action or otherwise was, it seems to me, clearly an exercise of original jurisdiction. It was a proceeding originating in the Court issuing it, and might be directed in a proper case to any class of public officer, executive or judicial. It must also be regarded as having been within the original jurisdiction of the Supreme Court because that Court had no appellate jurisdiction. 92. Having regard to these authorities it must be held that in India this Court's power to issue the writs of certiorari falls within its original jurisdiction as distinguished from its appellate or other jurisdictions and it is in this sense that' the expression original jurisdiction is used in Section 110 of the Government of India Act. 93. Sir C.P. Ramaswami Aiyar attempted to show with reference to the nature of the writ that the High Court in issuing it exercises its appellate or revisional or supervisory jurisdiction. No doubt the writ of certiorari is described as: The process by which the King's Bench Division in the exercise of its superintending power over inferior jurisdiction, requires th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also in my opinion does, not support the petitioners. The expression ordinary jurisdiction in, this passage is used as opposed to extraordinary jurisdiction and the other jurisdictions of the High Courts, and not in the technical sense in which I think the expression original jurisdiction is used in Section 110 of the Government of India Act. Attention may be drawn to the following observations of the Judicial Committee in In the matter of Casndas Narrondas to elucidate the meaning of the expression ordinary jurisdiction appearing, in the above passage. Mr. Rigby argued that the passages of the Charter which have just been epitomized divide the jurisdiction into four classes, ordinary original, extraordinary original, appellate and those special matters which are the subject of special and separate provisions. But their Lordships are of opinion that the expression ordinary jurisdiction' embraces all such as-is exercised in the ordinary course of law and without any special step, being necessary to assume it; and that it is opposed to extraordinary jurisdiction, which the Court may assume at its discretion upon special occasions and by special orders. 97. If the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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