TMI Blog1949 (9) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... as declared elected from the general seat in Ward V and Petitioner No. 2 was declared elected from the reserved seat. The opposite party No. 1 then brought the present suit being Title Suit No. 32 of 1946 in the Court of the District Judge, Alipur for a declaration that the rejection of his nomination paper by the Election Authorities of the Naihati Municipality is illegal and ultra vires and that the result of the election has been materially affected thereby and that the said election is fit to be set aside. 3. The suit was contested by petitioner No. 1 and opposite party No. 4, the Chairman of the Commissioners of the Naihati Municipality. 4. The suit was heard by the learned Subordinate Judge, 1st Additional Court and was decreed. 5. Against the said decree, the petitioners moved this Court under Section 115, Civil P. C. 1908, v [5] of 1908, (hereinafter called the Code) and obtained the present rule. 6. Mr. Apurbadhan Mukherji learned advocate for the opposite party No. 1 raised a preliminary objection that this Court has no power to revise the decision complained of in view of the provisions of Section 39B (inserted by Section 13, Bengal Municipal (Amendment) Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and by certain statutes of the Indian Legislature. Such powers were confirmed and reiterated by Sections 106 and 107, Government of India Act, 1915 and by Sections 223 and 224 Government of India Act, 1935. Section 43, Bengal Municipal Act, 1932 or Section 39B of the said Act are both Acts of the Provincial Legislature and even though assent of the Governor General had been obtained under Section 80A(3), Government of India Act, 1915, as amended in 1919, the said sections would be ultra vires of the Provincial Legislature; by reason of Section 80A(4), Government of India Act, because the said Sections 39B and 43 affected the powers of revision of the High Court to interfere with the orders of the Election Court which is a Court subordinate to the High Court. 12. We have, therefore, to consider how and when the High Court or its predecessor Courts acquired revisional powers. 13. This involves in the first place an inquiry into the setting up of Courts of Justice in British India. 14. So far as the East India Company's settlement was concerned, a Mayor's Court was established in 1726. The Court administered English Law and had a limited local jurisdiction. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn as the Charter Act was passed. This Act envisaged the establishment of High Courts under a Royal Charter. The requisite Letters Patent was issued on 14th May 1862, and the High Court of Judicature at Fort William in Bengal was set up in the same year, superseding the old Sudder Courts and the Supreme Court. 22. The amended Letters Patent dated 28th December 1865 repealed the former Letters Patent of 1862 and re-established the said High Court. By virtue of Section 106, Government of India Act, 1915 and Section 223, Government of India Act 1935, these Letters Patent are still in force. 23. Before we proceed to consider the effect of the Charter Act and of the Letters Patent, let us summarise in brief, the salient laws which were applicable to the Sudder Court and the Provincial Courts before the year 1862. 24. In the Presidency Town of Calcutta the Supreme Court was governed by its own practice, rules and orders and the provisions of Act XVII [17] of 1852 and Act VI [6] of 1864. 25. Outside the Presidency Towns, the Provincial Courts were guided by the Acts and Regulations which may be found in the schedule to Act X [10] of 1861, and the Civil Procedure Code, Act VIII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court was held to be restricted to the original jurisdiction of the High Court, to be exercised over persons who reside or hold office within the said jurisdiction. 34. In Field's 'Regulations of the Bengal Code' Section 203 at page 145, the learned author says that the Sudder Dewani Adalat as constituted in 1793 exercised no original civil jurisdiction, being a Court of appeal and superintendence. 35. But so far as the Sudder Court is concerned, we do not find any recorded instance of exercise of such powers. 36. Walsh in his treatise on 'Revision and Extra-ordinary Jurisdiction Ch. 1 S. 1 says that 'the revisional jurisdiction of the High Courts in India over Courts subordinate to itself, or over cases decided in subordinate Courts, may be said to have had its origin in the similar, jurisdiction exercised by the High Courts in England under the King's prerogative, and administered generally on the Crown side. 37. It is true that every Court of superior jurisdiction possesses inherent powers for preventing injustice in certain cases; but there is no authority for the proposition that in the exercise of such inherent powers, Court can ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a Court could be revised by the High Court under Section 15 of the Charter Act, was decided by the Privy Council in Nilmoney Singh Deo v. Taranath Mukherji 9 I. A. 174 : (9 Cal. 295 F. C.). The Calcutta High Court has construed the said section as authorising this Court to correct also irregular or improper exercise of jurisdiction, Sardhari v. Hukum Chand 41 Cal. 876 : (A. I. R. 1914 Cal. 607), Gobinda Mohan Das v. Kunjabehary Das 14 C. W. N. 147 : (4 I. C. 364). But the powers so conferred are to be resorted to in cases of an unusual character, to prevent gross injustice being perpetrated. 44. Section 622 of Act X [10] of 1877 gave express powers to the High Court to revise decisions of subordinate Courts in cases of unwarranted failure to exercise jurisdiction, or erroneous assumption of jurisdiction by those Courts i. e., in cases similar to those now covered by Section 115(1) Clauses (a), (b) of the Code. 45. Section 42 of Act XII [12] of 1879 further enlarged the revisional powers of the High Court by extending the same to cases where the subordinate Court acted in the exercise of its jurisdiction illegally or with material irregularity. The position therefore was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction of the High Court. In Nara Narayan v. Aghore Chandra 39 C. W. N. 971, it was held by Henderson and Khundkar JJ. that the District Judge, performing the duties under the Municipal Act did not shed his character as a Court and his order was subject to the superintendence of the High Court under Section 107, Government of India Act, 1935. The point whether the Provincial Legislature could take away the power of superintendence vested in the High Court under Section 107, Government of India Act, 1915 was conceded. No opinion was expressed on the question whether the Provincial Legislature with the sanction of the Governor. General could exclude the revisional powers of the High Court under Section 115 of the Code. Henderson J. was of the opinion that the Election Court was not subject to the appellate jurisdiction of the High Court but concurred with Khundkar J. in holding that the power of superintendence of the High Court under Section 107, Government of India Act was exercisable because the District Judge as an Election Court functioned not as a persona designata, but as a Court, subject to the superintendence by the High Court. 52. Three classes of cases may arise in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Provincial Legislature in 1932 are to be found in Section 80A, Government of India Act, which was inserted by part I of Schedule II, Government of India Act 1919 (9 10 Geo. V, Cap. 101). The relevant portion of Section 80A is as follows: (1) The local Legislature of any province has power, subject to the provisions of this Act, to make laws for the peace and good government of the territories for the time being constituting that province. (2) The local Legislature of any province may, subject to the provisions of the sub-section next following, repeal or alter as to that province any law made either before or after the commencement of the Act by any authority in British India other than the local legislature. (3) The local Legislature of any province may not without the previous sanction of the Governor General make or take into consideration any law (a) to (d)--omitted, (e) regulating any central subject, or (f) regulating any provincial subject which has been declared by rules under this Act to be either in whole or in part subject to legislation by the Indian Legislature in respect of any matter to which such declaration applies, or (g) omit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the general powers of legislation within a province conferred on the local legislature by Sub-section. (1) is subject to the restrictions in Sub-section (2) which in its turn is subject to Sub-section. (3) and finally by Sub-section (4). Section 80A(3) Clauses (e), (f) and (g) use the word regulate while Clause (h) uses the word repeal . The word regulate is, therefore, used in the restricted sense of control by legislation , see Punyendra Narain v. Jogendra Narain, AIR1936Cal593 . Rule 80A (3) (f) (h), and Item 41 Part I Schedule A and item 17, Part II, Schedule A (which are complementary to each other) when applied to a provincial subject (e. g. Municipality) mean that the local legislature is authorised to legislate in regard to jurisdiction of Courts set up by it even though it may affect the jurisdiction, power and authority of the High Court not vested in it by a previous Act of Parliament. 60. This is substantially the view taken by Lord-Williams, Nasim Ali and R. C. Mitter JJ., in Nar Sing Das v. Chogemull AIR1939Cal435 , respectively at pages 623, 627, 634-635. 61. The learned Senior Government Pleader contended that the effect of Section 84, Government of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of High Courts and does not give the High Courts any right of judicial interference. 64. This view is supported by the decisions In re Adiraju Somanna A. I. R. 1938 Mad. 634 : (I. L. R. (1938) Mad. 988), Amar Singh v. Secretary of State A. I. R. 1938 Lah. 442 : (178 I. C. 292), Dattatraya v. Registrar Co-operative Society, G. P. Berar, Nagpur A. I. R. 1941 Nag. 282 (I. L. R. (1941) Nag. 397), Bhutnath v. Dasarathi Das, Muljee Sicka Co. v. Municipal Commissioner, Bombay, Pashupati Bharti v. Secretary of State,. 65. In a recent decision, Kavasji Pestonji v. Rustomji Sorabji, Chagla C. J. and Tendolkar J. held that the prohibition under Sub-section (2) of Section 224 only refers to those judgments of an inferior Court which are not otherwise subject to appeal or revision to the High Court, and that the High Court has still the power of judicial interference in respect of judgments not otherwise subject to appeal or revision. With great respect to the learned Judges, I am of opinion that the above view is based on a misinterpretation of Sub-section (2). Sub-section (2) was intended to provide against a possible argument that the High Court's power to exercise its power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal jurisdiction, any suit being or falling within the jurisdiction of any Court whether within or without the Bengal Division of the Presidency of Fort William, subject to its superintendence when the said High Court shall think proper to do so, either on the agreement of the parties to that effect or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court. 69. It was contended that Section 43, Bengal Municipal Act constituted the District Judge as an exclusive forum to decide election disputes under the Act and thereby took away the then power of the High Court under the said clause to remove the proceedings to its extraordinary original jurisdiction. It is doubtful whether the proceedings before the District Judge can be regarded as suits within Clause 13 but even if we assume that the proceedings before the District Judge are suits within that clause, Section 43, Bengal Municipal Act, 1932 would be void only to the extent of the repugnancy, for reasons I have already given. Section 43 would still operate to bar the revisional powers of this Court. 70. For the foregoing reasons I am of opinion that the High Court has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
