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2. Order 35, Rule 5 of the Supreme Court Rule which came into operation on the 26th January 1950 is to the following effect:

"In disposing of any such Rule, the Courts may in its discretion make such order for costs as it may consider just."

Rules 1 to 5 of Order 35, deal with application: in the nature of habeas corpus provided for under Article 32 of the Constitution of India and Rules 6 to 10 deal with Mandamus, Prohibition, Certiorari, Quo warranto etc. applications. From this it is clear that the Supreme Court, when hearing an application under Article 32 has the power to make such orders as to coats as the Court thinks fit. So far as the Madras High Court is concerned no such rule has yet been framed and in the absence of any such provision, the learned counsel for the petitioner lays emphasis on the inherent powers of the Court to award coats. In Shankarlinga Mudaliar v. Narayana Mudaliar, 45 Mad. 913; (A. i. r. (9) 1922 Mad 502: 23 Cr. tJ. J. 583 F. B.) a Full Bench had to consider whether the High Court has jurisdiction to grant costs in criminal cases except where the Code of Criminal Procedure makes express provision and the conclusion arrived at by the learned Judges was that it has no such jurisdiction, relying upon the maxim expressio unus est exclusio alterious, Schwabe C. J. in his judgment has noted the provisions of the Criminal Procedure Code where the power to award coats is expressly provided for and came to the conclusion that as the Code gives specific right of granting costs in certain instances, it excludes any other right of granting coats, though the learned Chief Justice, following the decision in Guardians of West Ham Union v. St. Mathew Bethnal Green, 1896 A.C 477 : (65 L. J. M. C. 201) and In re Bombay Civil Fund Act, 1882, Pringle v. Secy of State, for India, (1889) 40 Ch. D. 288 ; (68 L. J. Ch. 815), was of the view that though a Court may have inherent power to grant costs such a power must always be restricted and limited to this; that if the power of granting costs in any kind of proceeding is provided for in some way by statute, the Court cannot, by invoking its inherent powers extend the power which have been granted to it by the statute, Coutts-Trotter J. referred to the judgment of Hardwicke L. C. in Corporation of Burford v. Lenthall, (1743) 2-Atk 55L : (26 E. B. 730), and held that Courts of Equity in England always asserted their possession of such jurisdiction and constantly used it. But he also held that in England the common law Courts did not attempt to assert any such inherent jurisdiction, though the House of Lords in Guardians of West Ham Union v. Churchwardens etc. of St. Mathew Bothnal Green, (1896) A, C. 477 (65 L. J. M. 0. 201), held that the House has such power. Such being the case, if the present application was founded on Section 491, Criminal P. C., this Court would have no power to award costs. But it is contended that since the application under Article 226 of the Constitution of India which corresponds to Article 32 relating to the powers of the Supreme Court and since the Supreme Court has made rules investing the power to grant coats, this Court must also do likewise. It cannot be disputed that the High Court has power to frame rules to award costs in such matters. But the question is whether, without any such express rule being framed after the coming into operation of the Con-stitution there is an inherent power vested in the High Court to act in that manner. Their Lordships of the Judicial Committee in Royts of Garbhanda v. Zamindar of Parlakimedi, I. L. r. 1944 Mad. 457 : (A. I. R. (30) 1943 P.O. 164 have laid down that the Madras Supreme Court Charter (1800), Clause 8 invested the Supreme Court with the powers exercised by the King's Bench in England but such powers are restricted in their application to the City of Madras and therefore the High Court had no power to issue a writ outside the Presidency town. In C.P. Mathen v. District Magistrate, Trivahdrum, I. L. E. (1939) Mad. 744 : (A. I. E. (26) 1939 P. C. 213 : 40 Cr. L. J. 676), the Judicial Committee has also held that the High Court has no jurisdiction to issue the common law writ of habeas corpus in cases falling within Section 491, Criminal P. C. and since Section 491 enables the High Court to issue such writs within the limits of its appellate jurisdiction the power to issue common law writ must be deemed to have been impliedly taken away. In view of these authorities, it is abundantly clear that this Court has not inherited all the powers which the Court of King's Bench in England at common law has especially since 26th January 1950 the power to issue writs has been conferred by an Article of the Constitution.