Document Fragment View

Matching Fragments

24. In my opinion this High Court has inherited the jurisdiction to issue the writ of prohibition conferred upon the Supreme Court by Clause 5 of its Charter. Clause 5 invested the Chief Justice and the Puisne Judges, severally and respectively, of the -Supreme Court with such jurisdiction and authority as the Justices of the Court of King's Bench had and would lawfully exercise, within that part of Great Britain called England, as far as circumstances would admit. Now it is clear that this clause defines the nature of the authority that the Judges of the Supreme Court had. It does not deal with the territorial extent of that authority. Whereas Clause 5 relates merely to the nature of the authority which the Judges of the Supreme Court were to possess, the subsequent clauses in the Charter of the Supreme Court lay down and provide who were the persons who were to be subject to that authority. Clause 55 of the Charter refers to certain writs, namely, the writs of Mandamus, Certtorari Procedendo, or Error; and it has been contended that the absence in this clause of any mention of the writ of prohibition goes to suggest that the Supreme Court did not have the jurisdiction to issue the writ of prohibition, Now Clause 55 deals with the jurisdiction that the Supreme Court had to issue writs to the particular Courts mentioned in that clause and to the Justices and other Magistrates also mentioned in that clause. It is not possible to read Clause 55 as controlling and limiting the nature of the authority conferred upon the Judges of the Supreme Court by Clause 5 of the Charter. Clause 5 is wide and unlimited in its extent; and if the Judges of the King's Bench Division had a particular jurisdiction and had a particular authority, then that juris- diction and that authority was conferred upon the Judges of the Supreme Court by Clause 5 of the Charter. The principle of construction I am suggesting cannot now be: doubted or disputed in view of the recent decision of the Privy Council in Ryots of Garabandho v. Zemindar of Parlakimedi (1943) L.R. 70 I.A. 129: S.C. 47 Bom. L.R. 125.

26. It has been suggested that Section 45 of the Specific Relief Act has taken away the jurisdiction of the Court to issue the writ of prohibition. The argument is that Section 45 is a comprehensive section which deals both with the writ of mandamus and the writ of prohibition. It is pointed out that in England the writ of mandamus can only be issued for the purpose of directing a public servant to do a specific act and not asking; him to forbear from doing any particular act, and from that it is sought to be inferred that when the Legislature enacted Section 45 it comprehensively dealt with both the writs, the writ of mandamus and the writ of prohibition. Now, in the first place, it must be noticed that Section 45 does not refer to either of the two writs and it is only when we turn to Section 50 that the Legislature refers only to the writ of mandamus and it provides by that section that neither the High Court nor any Judge thereof shall hereafter issue any writ of mandamus. Now I take it that the Legislature knew the distinction between the writ of mandamus and the writ of prohibition, and when the Legislature expressly took away the jurisdiction of the High Court to issue the writ of mandamus and did not refer to the writ of prohibition at all it is clear to my mind that it was not the object of the Legislature to deprive the High Court of that jurisdiction. When the Legislature was in express terms dealing with a particular writ-and it must have been patent to the draftsman of the Act that another writ could also be issued by the High Court and the High Court had jurisdiction to issue that writ and it was not thought proper to refer in Section 50 to the other writ at all, the only natural conclusion that one can arrive at is that the Legislature did not intend to interfere with the jurisdiction of the High Court to issue the writ of prohibition. That the jurisdiction of the High Court cannot be taken away by implication has been made clear by the Privy Council in Besant's case. In that case the Magistrate had required security from Mrs. Besant in connection with the newspaper published by her in India called " New India " and a writ of certiorari was applied for against the Magistrate. It was sought to be argued that the writ of certiorari could, not be issued and the High Court had no longer jurisdiction to issue the writ in view of Section 115 of the Civil Procedure Code and Section 435 of the Criminal Procedure Code. It was suggested that these two sections gave powers of revision to the High Court in civil and criminal matters and, therefore, the need for a writ of certiorari had disappeared and the Privy Council rejected that argument; and their Lordships observed as follows (p. 159):-

27. The learned Judge felt bound by the decision of the Court of Appeal of our Court in Mahomedalli v. Jafferbhoy (1925) 28 Bom. L.R. 264. In that case Sir Norman Macleod, Chief Justice, observed (p. 269):

Proceedings under this section '[namely, Section 45 of the Specific Relief Act] are in substitution for proceedings by writ of mandamus and writ of prohibition according to English practice.
Now, with great respect to the learned Chief Justice, he was not called upon in that case to make that observation. That observation was not necessary for the decision of the case. All that he had to decide, which he did decide, was that the Taxing Master, Mr. Gillett, against whom an order was sought under Section 45 was not a person holding a public office. His decision was that Mr. Gillett was acting in his capacity as a private individual in taxing the particular bill of costs which he had been asked to do by the Government of Bombay, Against this obiter we have, on the other hand,, a clear and emphatic decision of the Calcutta High Court in the judgment of Mr. Justice Panckridge in In re National Carbon Company, Incorporated (1934) I.L.R. 61 Cal. 450 where he held that the High Court had the power to issue a writ of prohibition. As it happened in. that particular case, he refused to issue that writ on merits. A divisional bench of the Calcutta High Court consisting of Mr. Justice Lort-Williams and Mr. Justice Jack in Dorman Long and Co., Ltd. v. Jagadeeshehandra Mahindra (1934) I.L.R. 62 Cal. 596 accepted the same position and decided that the High Court had the power to issue both a writ of certiorari and a writ of prohibition; and in Indumati Debi Chaudhurani v. Bengal Court of Wards [1938] 1 Cal. 476. Mr. Justice Panckridge, following his own decision in In re National Carbon Company,, actually issued the writ of prohibition. With respect to the learned Judge below, I prefer to follow the decisions of the Calcutta High Court on this point rather than place my reliance on a pure obiter of Sir Norman Macleod, Chief Justice. Apart from authorities, it is clear to my mind, looking at. the Charter of the Supreme Court and at the various Parliamentary enactments, that the jurisdiction that the Supreme Court possessed of issuing writs of prohibition within the ordinary original jurisdiction of that Court is still preserved in the High Court and we have the same power and authority which the Supreme Court enjoyed.

30. The third question that arises is whether an order should be made under Section 45 of the Specific Relief Act. As pointed out by the learned Chief Justice, the conditions laid down under the various sub-clauses in that section are cumulative, and before the Court could make an order every one of those conditions would have to be satisfied. The first condition which finds its place in Sub-clause (a) is that an application for such an order should be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing of the specific act. Now the question is. whether the giving of an award by the arbitrator Mr. Noronha who, on the petitioners' own contention, is acting without jurisdiction and whose award would be a nullity would injure the property of the petitioners. It is argued by Mr. Munshi that he has been deprived of the right of getting fifteen per cent, which he would have got if the proceedings were under the Land Acquisition Act. But that argument, I am afraid, is not tenable because if the arbitrator has jurisdiction, then Mr. Munshi cannot get fifteen per cent, under the Land Acquisition Act. If the arbitrator has no jurisdiction and if his award is a nullity, then Mr. Munshi can ignore the award as the acquisition is bad and the reference following upon it is bad. It has been held by a divisional bench of our Court in Ramdas v. Atlas Milk Co. (1930) 33 Bom. L.R. 19 that the giving of an award without jurisdiction does not inflict any legal wrong upon the person against whom the award is made; and in that case Sir John Beaumont, Chief Justice, came to the conclusion that no perpetual injunction can be granted against a party from proceeding with an arbitration which was invalid and which was without jurisdiction. He considered various English cases, and the only English case to which his attention was drawn and in fact to which our attention was drawn was the case of Sissotls v. Oates (1894) 10 T. L.R. 392 where the English Court granted an injunction against the party in a suit where the only substantive relief was the restraining of the other party from proceeding with the reference. But this particular case seems to be of rather doubtful validity on this particular point because, as pointed out by Sir John Beaumont, the report of the case is extremely short and the question of jurisdiction was not considered by the Court at all. It is also not reported in the authorised series. The only report one finds is in the Times Law Reports. The other' point urged by Mr. Munshi is that apart from injury to property, his personal right would be injured under Sub-clause (a) of Section 45 if the arbitrator proceeded with the reference. As I read it, the personal right in this sub-clause is a right which must be personal to the petitioner-something which is individual to him and not a general legal right which every subject enjoys under the law of the land. Mr. Munshi's contention is that he has a personal right not to have his dispute decided by this particular arbitrator. I do not think that that is a personal right which Section 45, Sub-clause (a), contemplates. I frankly confess that the question is not one free from difficulty; and fortunately it is not necessary for us to decide the question as the matter is much simpler when we come to Sub-clause (b) Sub-clause (b) of Section 45 requires that the doing or forbearing must be clearly incumbent on the person in his public character against; whom the order is sought. In England, as I have already pointed out, where the writ of mandamus is only issued for the purpose of doing something which is incumbent on the public officer no difficulty arises; but we have here also the right in the applicant to ask the public officer to forbear from doing something which is incumbent upon him in his public character by the law for the time being in force from forbearing, I agree with Mr. Munshi that it is not necessary that the law or the statute should specifically lay down that the public officer should forbear from doing something before the application of this sub-clause can be attracted. Now to my mind it is essential that there must be in the law for the time being in force some duty cast upon the public officer. If he does not dc the duty, then the Court can call upon him to do it. If he does it improperly or unauthorisedly, the Court can call upon him to forbear from doing it in that particular manner. Now in this case it is not suggested that the arbitrator is discharging his duty improperly or arbitrarily. Mr. Munshi wants the Court to ask the arbitrator not to proceed with the reference when the Defence of India Act and the Rules made thereunder make it incumbent upon him to proceed with the reference. Mr., Munshi really wants the Court to ask him to forbear from proceeding with the reference on the assumption that the very foundation of his authority does not exist, namely, that the acquisition made by Government is illegal and ultra vires. If the very foundation of the authority of the arbitrator does not exist, then there is neither the doing nor the forbearing of any yet incumbent upon him. In this connection Mr. Munshi relied on a decision of Mr. Justice Tyabji in In re Tarabai (1905) 7 Bom. L.R. 161. That decision, to my mind, far from assisting Mr. Munshi, illustrates the very principle I was attempting to lay down. In that case the Commissioner of Police at Bombay, acting under Section 28 of the Bombay City Police Act, 1902, issued a notice upon the applicants requiring them to vacate the premises occupied by them, and intimating that failure to comply with the notice would render them liable to punishment under Section 129 of the Act. The applicants applied to the High Court, under Section 45 of the Specific Relief Act, for a rule against the Commissioner of Police to show cause why the notice should not be cancelled and why he should not be restrained from carrying the same into effect. It was sought to be argued before Mr. Justice Tyabji, who heard the application, that there was no specific provision in any Act that the Commissioner of Police should cancel any notice that might be given by him. The learned Judge negatived that contention pointing out that if the Policy Commissioner had to give notice in the manner laid down in the Act and if he failed to do so, it was open to the Court to direct him to cancel that notice. But what has got to be remembered is that the authority of the Commissioner of Police to issue the notice under Section 129 of the Bombay Police Act was not challenged in that case; on the contrary the very basis of the application under Section 45 of the Specific Relief Act was that the Police Commissioner was clothed with that authority to issue the notice under Section 26 of the Bombay Police Act, and being so clothed he was not exercising that authority properly.