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Madras High Court
Penugonda Venkataratnam And Anr. vs The Secretary Of State For India In ... on 20 December, 1929
Equivalent citations: (1931) 60 MLJ 25
Author: V Rao



ORDER
 

Venkatasubba Rao, J.

1. This is a rule calling upon "the Minister, Public Health, Government of Madras," to show cause why an order made by him on the 11th of March, 1929, should not be quashed on certiorari. The ground on which the rule was obtained may be shortly stated. The Nuzvid Union Board granted permission to a certain person to establish a rice mill within its jurisdiction. The Collector suspended the resolution of the Board, as, in his opinion, the establishment of a mill in the locality in question "was likely to be detrimental to public health". The Local Government passed proceedings under Sections 38 and 196 of the Local Boards Act (1920), on the 9th of June, 1928, directing that the Collector's order "shall continue in force permanently". Subsequently this order was rescinded on the 11th of March, 1929, the result being that permission to establish the mill was accorded. This rule was issued at the instance of certain residents 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. It is clear from this, that the application made to us is wrong in form. Sir C. P. Ramaswami Aiyar, for this reason, asks us for leave to amend his petition, by substituting "The Government of Madras, Ministry of Local Self-Government" for the words "The Minister, Public Health, Government of Madras". I shall deal with the real substance of the issue, as if the amendment has been allowed.

6. Two main questions arise:

1. What is the jurisdiction of the High Court in certiorari?

2. Can certiorari issue against the Governor acting with Ministers?

7. As regards the. first point, the nature of this writ is thus described in Short' and Mellor's Crown Practice, 2nd Ed., page 14: ....

The writ of certiorari is the process by, which the King's Bench Division, in the exercise of its superintending power over inferior jurisdictions, requires the Judges or officers of such jurisdictions to certify or send proceedings before them into the King's Bench Division, whether for the purpose of examining into the legality of such proceedings, or for giving fuller or more satisfactory effect to them than could be done by the Court below.

8. The Court of King's Bench (or Queen's Bench when a Queen is on the Throne), as the learned authors explain, derives its title from the fact that the Sovereign himself formerly sat in the Court. They then add:

The theory of the Sovereign's presence has always been kept up...The jurisdiction of this Court is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority. ...It commands Magistrates and others to do what their duty requires in every case where there is no other specific remedy. It protects the liberty of the subject by speedy and summary interposition.

9. I am prepared to adopt and apply the law on this subject as laid down in the English books and decisions. It is unnecessary to deal with the numerous cases which Sir C. P. Rama-swami Aiyar has quoted. The law has been most succinctly stated in some of the most recent' decisions on the point.

10. In Frome United Breweries Co., v. Bath Justices L.R. (1926) A.C. 586 Lord Atkinson quotes with approval the following passage from the judgment of May, C.J., in The Queen v. Corporation of Dublin L.R. (1878) 2 Ir. 371:

It is established that the writ of certiorari does not lie to remove 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 at 627 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 at 205:

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 writs.

12. The latest case on the point is Rex v. North Worcestershire Assessment Committee (1929) 2 K.B. 397, and the law is admirably summed up in it, in regard to the powers of superior Court's to issue prerogative writs.

13. I may also refer to the observations of Brett, L.J., in The Queen v. Local Government Board (1882) 10 Q.B.D. 309 a 321:

I think I am entitled to say this, that my view of the power of prohibition at the present day is that the Court should not be chary of exercising it, and that wherever the legislature entrusts to anybody of persons other than to the superior Courts the power of imposing an obligation upon individuals, the Courts ought to exercise as widely as they can the power of controlling those bodies of persons if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament.

14. These various statements, with great respect, I adopt. Subject to the exception with which I shall deal, the High Court possesses the same jurisdiction in certiorari as the Court in England.

15. I shall now deal with the second point. Sir C.P. Ramaswami Aiyar contends that we possess the same unlimited jurisdiction in this respect as the Court of King's Bench. He relies mainly, if not' solely, on clause 8 of the Letters Patent establishing the Supreme Court at Madras (dated the 26th December, 1800). It' provides:

And it is our further Will and Pleasure, that the said Chief Justice, and the said Puisne Justices shall, severally and respectively be, and they, are all and every one of them hereby appointed to be, Justices and Conservators of the Peace, and Coroners, within: and throughout the Settlement of Fort St. George, and the Town of Madras, and the Limits thereof, and the Factories subordinate thereto, and all the Territories which now are, or hereafter may be, subject to, or dependent upon, the Government of Madras aforesaid; and to 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, calfed England, as far as circumstances will admit.

16. This clause consists of two parts and we are concerned with the second. By the first part, the Judges are appointed Conservators of the Peace and Coroners. The second part confers on them a distinct and independent jurisdiction. This 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 (1911) I.L.R. 36 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 all Civil, Criminal, Admiralty and Ecclesiastical Jurisdiction.

19. I may pass over Section 14 and refer to Sections 15 and 17 which alone impose certain restrictions in regard to the jurisdiction possessed by that Court.

20. Section 15 rendered the Governor-General and Members of his Council immune in respect of certain offences.

21. Section 17 exempted them and certain other high officers from arrest or imprisonment upon any action or proceeding in that Court.

22. These restrictions are not relevant to the matter in hand and the jurisdiction of the Supreme Court was not otherwise limited.

23. In pursuance of this Act, by a Letters Patent, dated the 25th of March, 1774, a Supreme Court was established at Calcutta with plenary powers. Into the conflict that arose in consequence between the Judges of that Court and the Executive Government, it is needless to enter. It was then thought desirable, in the interests of good administration, to limit the powers of the Court, and to secure that object the Act known as the East India Company Act, 1780 (21 Geo. III, c. 70) was next passed.

24. The preamble is instructive. After referring to the previous Act and the Letters Patent, it goes on to say that they led to distensions between the Judges of the Supreme Court and the Governor-General and his Council. The result was disastrous. To use the very words:

The minds of many inhabitants...have been disquieted with fears and apprehensions and further mischiefs may possibly ensue...if a reasonable and suitable remedy be not provided.

25. It was therefore enacted:

(1) That the Governor-General and Council of Bengal shall not be subject, jointly or severally, to the jurisdiction, of the Supreme Court of Fort William in Bengal 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.

(2) And ... if any person or persons shall be impleaded in any action or process, civil or criminal, in the said Supreme Court for any act. or acts done by the order of the said Governor-General and Council in writing, he or they may plead the general issue, and give the said order in evidence; 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:

(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 to the Supreme Court at Fort William. We must now turn to the Government of India Act, 1800 (39 and 40 Geo. III, c. 79). After reciting and referring to certain matters, it provides for the establishment of a Supreme Court at Madras. But that Court is to be, to quote the words of the Act-

In the same form and with the same powers and authorities as that now subsisting...at Fort William in Bengal.

28. The relevant part of what follows, I reproduce-

(2) It shall be lawful for His Majesty ... to establish a Supreme Court of Judicature at Madras . . . with full power to exercise such 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 . . . Town of Madras and Territories dependent on the Government of Madras . . .as the said Supreme Court of Judicature at Fort William in Bengal ... is invested with or subject to within the said Fort William or the Kingdoms or provinces of Bengal, Bihar and Orissa:

(3) Provided always that the Governor and Council at Madras and the Governor-General of Fort William aforesaid shall enjoy the same exemption and no other, from the authority of the said Supreme Court of Judicature to be there erected, as is enjoyed by the said Governor-General ' and Council at Fort William aforesaid from the jurisdiction of the Supreme Court of Judicature there already by law established.

29. Thus, in every respect, the two Courts were placed on the same footing, that is, the Court already existing and the Court to be established. The words used are direct and pointed. No higher powers can be conferred on the Supreme Court to be established, than those possessed by the Court at Fort William. The Governor and his Council are exempted from its jurisdiction in the same way, and to the same extent, as the Governor-General and his Council from the jurisdiction of the Calcutta Court.

30. Then we come to the Letters Patent establishing the Supreme Court' at Madras, dated the 26th December, 1800. Clause 23 provides inter alia:

nor shall it be competent for the 'said Court to hear or determine, or to entertain or exercise jurisdiction in any suit or action against the Governor-General of Fort William, or the Governor or any of the Council of the said Settlement, for or on account of any act or order, 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, in terms, that the Judges of the Supreme Court at Fort William shall have jurisdiction and authority as extensive as the Judges of the King's Bench Court in England. This led, as I have pointed out, to distensions between the Judges of the Supreme Court at Fort William and the Executive Government. Thereupon, an Act was specially passed to curtail the powers of that Court. This history was not allowed to be repeated in the case of the Madras Supreme Court. An Act was first passed which defined the limits of the Court to be established. It was specially enacted that that Court was not to have any higher powers than those the Calcutta Court possessed after its powers had been curtailed. What is the result? Clause 4 of the Charter of the Calcutta Court was qualified by an Act passed subsequent to it, namely, the Act of 1780; whereas, clause 8 of the Charter of the Madras Court becomes restricted in its operation, by an Act which had been passed previous to it, namely, the Act of 1800.

33. I now pass on to the next stage. The Indian High Courts Act, 1861 (24 and 25 Viet., c. 104) was passed and gave to the Crown authority to establish High Court's in the Presidency Towns. It abolished the Supreme Courts and the Sudder Courts and provided for the jurisdiction and powers of the High Courts.

34. Section 9 runs thus:

Each of the High Courts to be established under this Act shall have and exercise all such civil, criminal, admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction, original and appellate, and all such powers and authority for and in relation to the administration of justice in the Presidency for which it is established, as Her Majesty may by such Letters Patent as aforesaid grant and direct, subject, however, to such directions and limitations as to the exercise of original, civil and criminal jurisdiction beyond the limits of the Presidency towns as may be prescribed thereby; and save as by such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council, the High Court to be established, in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of 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 Council is not affected by the High Courts Act of 1861, or the Letters Patent of 1865, Collector of Sea Customs v. Chidambaram (1876) I.L.R. I M.89 (F.B.).

37. Finally, the various High Courts Acts were repealed in their turn by the Government of India Act. Section 106 (1) enacts:

The several High Courts are Courts of record and have such jurisdiction, original and appellate, including admiralty jurisdiction in respect of offences- committed on the high seas, and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers of the Court, and power to make rules for regulating the practice of the Court, as are vested in them by Letters Patent, and, subject to the provisions of any such Letters Patent, all such jurisdictions, powers and authority as are vested in these Courts, respectively at the commencement of this Act.

38. This does not carry the matter further. The question ultimately resolves itself into: Did the Supreme Court possess the power in question ? If yes, the High Court (having inherited its jurisdiction) has it. If not, it does not possess it.

39. It is said, by way of answer, that the Government of India Act has repealed the East India Company Act, 1780 (21 Geo. III, c. 70) and the Indian High Courts Act, 1861 (24 and 25 Vict., c. 104). But this is utterly irrelevant, for, what matters for the present purpose whether they have been repealed or not? The repealed Acts serve merely to show what the powers of the abolished Courts were. We are not directly concerned with the Acts themselves.

40. It is next suggested that the exemption of the Governor-General and Council is subject to the proviso relating to British subjects (see the sections of 21 Geo. III, c. 70, quoted above), The argument is thus put: Since the passing of the Government' of India Act, 1858, natives of British India are British subjects (see Halsbury's Laws of England, Vol. X, page 588) and the order complained against affects the rights of such subjects and therefore the immunity claimed does not extend to it'. The short answer is, that the proviso has no bearing on the section which relates to the exemption in question. That proviso (unlike the succeeding one) refers to matters dealt with in Section 2 and not in Section 1.

41. Then comes the question, does the exception 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 of the Government of India Act, 1919, comes into operation . . . any reference by whatever form of words to an authority, authorised by law, ... to administer executive Government . . . shall, where a corresponding new authority has been constituted by the Government of India Act, 1919, be construed . . . as a reference to such new authority.

43. This was added to the General Clauses Act by Act XXXI of 1920. Are the requirements of this section fulfilled ? First, the enactment in question (the Government of India Act, 1800) was made before the date specified in the section. Secondly, was it made by an authority in British India? Is this to be confined as contended for by the applicant to an authority situated in British India? I see no reason to limit it in that way. The word "authority" according to Webster's Dictionary may mean a body exercising power. Substituting those words, the section reads thus:

In any enactment made by anybody exercising power in British India.

44. The British Parliament being such a body, the enactment in. question answers this description. Is the Indian Legislature then competent to provide for the interpretation of ' words occurring in an Act of Parliament? Having regard to the fact that the Act' in which the expression occurs is a repealed one and having advertence to the rule embodied in Section 65 of the Government of India Act, I am disposed to think that we can call in aid Section 31, in construing the words in the Act of 1800. In that case, what is the new Executive Authority which corresponds to the "Governor and Council" of 1800? Section 46 of the Government of India Act (already quoted) says that each Presidency shall be governed, in relation to reserved subjects, by a Governor in Council and, in relation to transferred subjects, by the Governor acting with Ministers, The, authority with which we are now concerned is the Governor acting with Ministers and therefore the exemption extends to that body. But this was the conclusion at which I arrived also on another (and in my opinion safer) ground.

45. I now proceed to deal with the next contention of the Government Pleader, that Section 110 of the Government of India Act also excludes our jurisdiction. This is pleaded in the alternative as the second ground. The relevant part of that section runs thus:

The Governor-General, each Governor, Lieutenant-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 restricted to the original jurisdiction? I do not think it necessary to refer to the answer attempted. The fact remains, that Governors and Ministers art* declared not amenable to the original jurisdiction of the High Court in respect of their official acts, then is the jurisdiction in certiorari original? I think the question must be answered in the affirmative. By Section 34 of the Judicature Act of 1873 (corresponding to Section 55 of the present Act of 1925) to the Queen's Bench Division of the High Court were assigned:

All causes and matters...which would have been within the exclusive cognizance of the Court of Queen's Bench in the exercise or its original jurisdiction.

47. This is explained thus in the "Supreme Court Practice":

Matters within the exclusive cognizance of the Court of Queen's Bench in the exercise of its original jurisdiction at the commencement of this Act included the supervision of decisions of inferior tribunals generally by certiorari."--See the Supreme Court Practice, 1928, page 1610.

48. I must guard myself against being understood that the term "Original Jurisdiction" in this context connotes that the writ cannot be issued outside the limits of the City. "This is not the sense in which that expression is used. The jurisdiction in the exercise of which the writ is granted is original, as contrasted with appellate. This jurisdiction termed "original" is not to be confused with "original civil jurisdiction" mentioned in Section 12 of the Letters Patent. The last mentioned jurisdiction can be exercised by its very nature, within certain local limits. But the jurisdiction possessed by the High Court in the matter of certiorari is supervisory or corrective and, on the English analogy, extends over all inferior tribunals amenable to its authority.

49. Again, under this section, a difficulty arises similar to the one I have already noticed. A Governor is exempted, so is a Minister, but there is no exemption in favour of "the Governor acting with Ministers". I may point to a similar lacuna in the section even in the case of "the Governor in Council," for, while it mentions both the Governor and the Members, it does not in terms refer to "the Governor in Council". Reading the section strictly, the Governor is exempted, so are the Members and the Ministers. But this exemption does not extend to "the Governor in Council" 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 (1876) I.L.R. 1 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 make the rule nisi absolute. The application is dismissed with costs (two sets). We must fix a special fee, but we cannot penalise the petitioner by ordering him to pay a sum adequate to the importance of the case and the time it has taken. Accordingly, we fix the fee of the Government at Ks. 350 and the other respondent's costs at Rs. 75."

51. The petitioners will pay Rs. 350 to the 3rd respondent' and Rs. 75 to the 4th respondent' for their respective costs in" this petition.

Madhavan Nair, J.

52. C.M.P. No. 2447 of 1929.--In this application directed against (1) the Secretary of State for India' in Council, (2) the Honourable the Minister of Public Health, the Government of Madras, (3) the Secretary for Public Health, Government of Madras, and (4) Vezzu Venkata Narasimham of Nuzvid, the petitioners request this Court to issue a writ of certiorari to the Honourable the Minister, Public Health, calling for the records in the matter of G.O. No. Mis. 673, P.H., dated 11th March, 1929, cancelling G.O. No. Mis. 1214, P.H., dated 9th June, 1928, to quash the said proceedings and to pass such order or orders as this Court may deem fit.

53. Local Self-Government Department, G.O. No. Mis, 1214, P.H., dated 9th June, 1928, was passed in the following circumstances. By its resolution No. 71, dated 20th January, 1928, the Nuzvid Union Board granted permission to the 4th respondent to establish a rice mill against the advice of the District Health Officer, Kistna, who considered it; most undesirable as the site was in the midst of dwelling houses and on a busy thoroughfare and in the heart of the town. The Collector, in his proceedings, dated 10th February, 1928, suspended the Union Board's resolution as, in his opinion, the establishment of a mill in the locality was likely to be detrimental to the public health. The Union Board was given an opportunity to show cause why the Collector's order should not be made to continue in force permanently. The Government were not impressed with the arguments of the Union Board; and they concurral with the Collector that the establishment of a mill in the heart of the town should not, in the interests of public health, be agreed to. Narrating these circumstances, the order ended as follows:

In exercise of the powers conferred on them by Sub-section (2) of Sections 38 and 196 of the 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, health or safety of the residents of the locality. In super-session of the orders contained in G.O. No. 1214, P.H., dated 9th June, 1928, they accordingly rescind the proceedings of the Collector No. R.O.C. B-3, 362-28, dated 10th February, 1928, suspending the resolution of the Union Board referred to above.

(By order of the Government, Ministry of Public Health.) (Sd.) S. Ranganathan, Deputy Secretary to Government.

55. A rule nisi was issued by this Court calling upon the Honourable the Minister of Public Health for the records in the matter of these Government Orders for quashing the said proceedings.

56. At the time of the final hearing of the rule, the petitioners' learned Counsel filed an amended application for the issue of the writ in which "the Government of Madras, Ministry of Public Health" is substituted for "The Honourable the Minister of Public Health".

57. On behalf of the Government, the learned Government Pleader takes a preliminary objection that an application will not lie under the Government of India Act against the Honourable the Minister of Public Health, Government of Madras, and that the amendment asked for directing the fresh application against the Government of Madras, Ministry of Public Health, should not be allowed at this late stage. He next argues that this Court has no jurisdiction to issue a Writ of certiorari against the Minister or the Government of Madras, Ministry of Public Health, and that in any event, having regard to the circumstances of this case, the writ of certioran asked for should not be issued. All these points are disputed by the learned Counsel for the petitioners. The three main questions arising for consideration are: (1) Should the preliminary objection-be upheld? (2) Has this Court jurisdiction to issue a writ of cettiorari against the Minister or the Government of Madras, Ministry of Public Health? and (3) If it has such jurisdiction should a writ be granted to the petitioners in the present case? I shall deal with these questions one after the other.

(1) The Preliminary Objection:

58. In these proceedings action has been taken by the Local Government under Section 38, clause 2 of the Madras Local Boards Act, 1920. It empowers the District Collector to suspend the resolution of any Local Board under certain circumstances and report to the Local Government, who may thereupon either 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 falls within the) category of transferred subjects, and as such, the Local Government's order under Section 38, clause 2 of the Local Boards Act will be made by the Governor acting with the Minister in charge of this particular subject.

62. Having regard to these provisions it is clear that the application for the writ should not have been directed against the Honourable the Minister of Public Health, Government of Madras. This is conceded by the petitioners. In strict propriety, the application should have been directed against the Governor of Madras acting with the Minister in charge of this particular subject. Section 49 (1) enacts that All orders . ... . of the Government of a Governor's Province (such, as Madras, Bombay,. etc.) shall be expressed to. be made by the Government of the- Province, and shall be authenticated as the Governor may by rule direct, so, however, that provision shall be made by rule for distinguishing orders and other proceedings relating to transferred subjects from other orders and proceedings.

Orders and proceedings authenticated as aforesaid shall not be called into question in any legal proceeding on the ground that they were not duly made by the Government of the Province.

63. Clause 2 enacts:

The Governor may make rules and orders far the more convenient transaction of business...with his Ministers, and 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.

64. Obviously, it must have been according to the rules made under this section that the order in this case has been issued in the following form:

By order of the Government, Ministry of Public Health.

65. The expression "Ministry of Public Health" does not find a place in the Government of India Act; but rules must have been made under Section 49 which authorise the Governor acting with the Minister of Public Health being described as the ? "Ministry of Public Health." This, I think, is the explanation for the expression "The Ministry of Public Health" being found in the order of the Government. So, if the application for the issue of a writ was directed against the Government of Madras, Ministry of Public Health, the application according to the provisions of the Statute would have certainly been in proper form.

66. The learned Government Pleader 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 sought to be questioned by writs of certiorari, the writs should be directed against the Governor. The point is sought to be further emphasized by reference to Section 47 (1) of the Act which deals with Members of the Governor's Executive Council and Section 50 (1) which deals with the procedure in case of difference of opinion in Executive Council. The argument cannot be accepted. Under Section 46, clause 1, the Presidency of Madras is governed in relation to transferred subjects by the Governor acting with Ministers. Whether their advice is followed or not, the orders passed in relation to transferred subjects are orders of the Governor acting with Ministers and when the orders passed by this statutory body are sought to be challenged by writs of certiorari, it is clear that the application for the writs should be directed against that body and against none else. I have shown that, having regard to the rule-making power contained in Section 49 (1), the application would be in proper form if directed against the Government of Madras, Ministry of Public Health. As this has not been done in the present case, is the application to be dismissed? I think not; and this, apart from the question of amendment asked for at this hearing. The recipient of the notice knew exactly the scope of the application against which he was asked to show cause. He knew, by the receipt of the petition and the affidavit annexed to it, that the Court was being moved to issue a writ of cettiorari calling for the records in the matter of G.O. Mis. No. 673, P.H., dated 11th March, 1929, cancelling G.O. No. 1214, P.H., dated 9th June, 1928, and for quashing the said proceedings. On his attention being drawn to the matter of these Government orders, it must have become clear to him that the proceedings were directed against the orders passed by the Local Government, that is, the Governor acting with the Minister of Public Health, that is, the Government of Madras, Ministry of Public Health. In this view, the application may be considered to have been directed against the proper department of the Government of Madras. Therefore the objection that the petition should be dismissed as it was directed against the Honourable the Minister of Public Health, Government of Madras, has no substance in it and is overruled. This dispenses with the necessity to consider the question whether the amendment 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 (1911) I.L.R. 36 M. 72 : 23 M.L.J. 393, In re Mrs. Besant (1916) I.L.R. 39 M. 1164 : 32 M.L.J. 151 and Besant v. Advocate -General of Madras (1919) L.R. 46 I.A. 176 : I.L.R. 43 M. 146 : 37 M.L.J. 139 (P.C.)] "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 . . . have such jurisdiction . . . and all such powers and authority...as are vested in them by Letters Patent, and, subject to the provisions of any such Letters Patent, all such jurisdiction, powers and authority as are vested in those Courts respectively at the commencement of this Act.

70. In finding out the present jurisdiction of the High Court we have, therefore, to inquire into the jurisdiction, power and authority vested in it at the commencement of the Act. This requires examination of the various Letters Patents relating to the High Court and of the powers of the Supreme Court.

71. This High Court was established by 24 and 25 Viet., c. 104, known as the High Courts' Charter Act. Section 9 of that Act provided that:

The High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last-mentioned Courts.

72. By Section 8 of that Act, the old "Supreme Court" and the Courts of Sudder Dewany Adawlat and Foujdary Adawlat were abolished. The High Court thus inherited the jurisdiction and all the powers of the old Supreme Court. These powers were continued in the Court under 28 and 29 Viet, c. 15. The Letters Patent issued with reference to this statute re-enacted the powers already given and stated that the powers hitherto exercised "before the publication of these presents" shall vest in the High Court (see Section 17). Then came the Government of India Act which dealt with the jurisdiction of the High Court in Section 106, clause 1, already referred to. It is thus apparent that the High Court at the present day, in exercising all the powers it has under the Statutes we have referred to, exercises, amongst all such powers, all the powers of the old Supreme Court; and when we examine what powers the Supreme Court had, it will be discovered that it had no jurisdiction over the Governor and Council jointly or severally for acts done or orders issued by them in their public capacity.

73. The Government of India Act of 1800 (39 and 40 Geo. Ill, c. 79), by virtue of which the Supreme Court at Madras was established, by clauses 2 and 3 enacted that a Supreme Court may be established at Madras with the same powers and authorities as the Supreme Court at 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 ... as the said Supreme Court of Judicature at Fort William in Bengal, by virtue of any law now in force and unrepealed, or by this present Act, doth consist of, is invested with or subject to, within the said Fort William or the Kingdoms or Provinces of Bengal, Behar and Orissa."

Section 3.--"Provided always that the Governor and Council at Madras and the Governor-General at Fort William aforesaid shall enjoy the same exemption and no other, from the authority of the said, Supreme' Court of Judicature to be there erected, as is enjoyed by the said Governor-General and Council at Fort William aforesaid from the jurisdiction of the Supreme Court of Judicature there already by law established.

74. As this Act specifically grants to the Governor and Council at Madras "the same exemption and no other" from the jurisdiction of the Supreme Court to be established as is enjoyed by the Governor-General and Council at Fort William, it becomes necessary to refer to the power's and authorities-vested in the Supreme Court at Calcutta to find out the exact nature of the exemption that is granted to the Governor and-Council. To anticipate a little, this will show the interesting fact that, unlike the Supreme Court at Calcutta about the jurisdiction of which over the Governor-General and Council there-were "many doubts and difficulties," the Supreme Court at Madras from its very origin had clearly no jurisdiction over the Governor and Council.

75. The East India Company Act, 1772, commonly known as the Regulating Act (13 Geo. III, c. 63) authorised His Majesty by Charter and Letters Patent to erect and establish a Supreme Court at Calcutta (see Section 13). This Act was-followed by the grant of the Charter, dated the 26th of September, 1774, establishing the Supreme Court, which, briefly stated, invested that Court within Bengal, Behar and Orissa with such jurisdiction and authority as the Court of the King's Bench exercised in England (see, clause 4). Then came the) historic struggle between the Governor-General and Council and the Supreme Court which led to the passing of 21 Geo. III, c. 70 (East India Company Act of 1780). By Section 1 it is enacted:

that the Governor-General and Council of Bengal shall not be subject, jointly or severally, to the jurisdiction of the Supreme/Court of Fort , William in Bengal 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.

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 reference may usefully be made to In the, matter of Ameer Khan (1870) 6 Beng. L.R. 392 by way of illustration to show what effect was given to Section 2 by the Calcutta High Court which inherited the limited jurisdiction of the Supreme Court by 24 and 25 Viet., c. 104. In that case, a Muhammadan subject of the Crown was arrested in Calcutta and taken to the mufassal and detained in jail under a warrant of the Governor-General and Council in the form prescribed by Regulation III of 1818 and an application was made to the High Court to issue a writ of habeas corpus to the superintendent (a European British subject) of the jail. It was held that the Supreme Court had power to issue writs of habeas corpus to persons in the mufassal and that the same power was continued to the High Court. It was also held that, as the person against whom a writ was applied for acted under the written order of the Governor-General and Council, the Court would not direct the writ to issue. The latter part of this decision illustrates the limitation of the jurisdiction of the High Court over the Governor-General and Council. Referring to Sections 1 and 2 of 21 Geo. III, c. 70 which emphasise the limitation of the powers of the Supreme Court, Norman, J., states thus:

Therefore as the superintendent of the jail at Alipore holds the prisoner under the warrant in writing of the Governor-General in Council, it is clear that such order must prevail as against the command of any writ which this Court has power to issue. It appears to me, therefore, that I ought not to issue a writ which it would be the duty of the superintendent of the jail to disobey.

78. From this it follows that the jurisdiction of the Supreme Court at Madras over the Governor and Council (see 39 and 40 Geo. III, c. 79 already referred to) was limited in the same way as was the jurisdiction of the Supreme Court over the Governor-General and Council of Bengal by 21 Geo. III, c. 70. In other words, the Supreme Court at Madras, when it was established in 1800, had no jurisdiction over the Governor and Council for acts counselled, ordered or done by them in their public capacity as enacted in 21 Geo. III, c. 70 with reference to the Calcutta Supreme Court. Having regard to the fact that Governor-General and Council enjoyed the exemption referred to, jointly and severally, it must be held that in Madras also the exemption 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 schedule to the Act to the extent mentioned in the third column of that schedule. It is pointed out that 13 Geo. III, c. 63, 21 Geo. III, c. 70,39 and 40 Geo. III, c. 79 and 24 and 25 Viet., c. 104 are all repealed either in part or in whole, and that having regard to the following paragraph of Section 130 the exemption claimed by the Governor and Council no longer exists and that the only exemption which they can claim is under Section 110 of the Government of India Act which, it is argued, according to its terms cannot be availed of by them.

...Any reference in any enactment, whether an Act of Parliament or made by any authority in British India, or in any rules, regulations or orders made under any such enactment, or in any Letters Patent or other document, to any enactment repealed by this Act, shall for all purposes be construed as references to this Act or to the corresponding provision thereof.(See Section 130.)

81. This argument cannot be accepted, as the powers of the Supreme Court limited in its operation are, as shown above, still retained by the High Court under Section 106 (1), and the High Court in exercising these various powers under that section can only exercise them subject to the restriction which I have pointed out. In this connection it is also argued that having regard to the "powers and authorities" vested in the High Court without any restriction by Section 9 and the language of Section 11 of the High Courts Act, it must be held that the old restriction has not been carried out in the Act, but this argument is also untenable as the High Court has inherited the powers of the abolished Courts, the jurisdiction of which was restricted in the manner already pointed out.

82. The argument as regards Section 110 will be dealt with later on.

83. Having thus established that under Section 106 (1) of the Government of India Act the High Court has no jurisdiction over the Governor and Council jointly or severally for acts done or counselled by them in their public capacity, the respondent argues that the same exemption can be claimed by the "Governor acting with Ministers" in relation to a transferred subject. It is objected that unless by statute "Governor acting with Ministers" within the meaning of the Government of India Act is assimilated to the "Governor and Council" referred to in the enactments, the exemption from the jurisdiction 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 reference by whatever form of words to an authority authorised by law, at the time the enactment was made, to, administer executive Government in any part of British India, shall, where a corresponding new authority has been constituted by the Government of India Act, 1919, be construed for all purposes, after the abovementioned date, as a reference to such new authority.

85. I have already overruled the argunient that the orders of the Local Government in relation to transferred subjects are "Orders of the Governor". Section 31 of the General Clauses Act is of no use in solving the difficulty, as it obviously applies only to laws made by "any authority in British India" and not to Acts of Parliament. It seems to me, however, that if the Governor can claim the exemption in question from the jurisdiction "of the High Court under Section 106 (1), as I have held he can, then clearly it is not illogical to infer from this circumstance that ho writ of certiorari can be issued by the High Court also against the Governor acting with Ministers,

86. How can in actual practice exemption be given to the Governor, which he is entitled to claim as a matter of statutory right, if it is held that proceedings can be directed against the Governor acting with the Ministers? The inconsistency is obvious. I must therefore hold that if the High Court has no jurisdiction to issue the writ of certiorari against the Governor under Section 106 (1) of the Government of India Act, it has equally no jurisdiction to issue the writ against "the Governor acting with the Ministers".

87. The next branch of the argument relates to the exemption claimed under Section 110 of the Government of India Act which is as follows:

The Governor-General, each Governor, Lieutenant-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;

88. The exemption from the original jurisdiction of the High Court granted by this section to the persons named therein relates only to "anything counselled, ordered or done by any of them in his public capacity". There can be no question that the order complained 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 investing the High Court with the powers of the King's Bench invested it with the power to issue writs of certiorari. Under the Judicature Act, 36 and 37 Vict, c. 66, Section 34 (2), the original jurisdiction to issue writs exercised by the Court of King's Bench was assigned to the Queen's Bench Division of the High Court'. The following note under Section 34 of the Judicature Act of 1873 in the Yearly Practice of the Supreme Court (1924) clearly shows that writs in England were issued by the Court of Queen's Bench in the exercise of its original jurisdiction:

Matters within the exclusive cognizance of the Court of Queen's Bench in the exercise of its original jurisdiction at the commencement of this Act included the supervision of the decisions of inferior tribunals generally by certiorari" (R. v. Chantrell (1875) L.R. 10 Q.B. 587 and The Overseers of the Poor of Walsall v. London and North Western Railway Company (1878) 4 A.C. 30)

90. The original jurisdiction of the Queen's Bench to issue a writ of certiorari was assigned to the King's Bench Division by Section 56(2) of the Supreme Court of Judicature Act, 1925, and the same note which I have quoted above appears under this section in the "Yearly Practice" for 1928. To the same effect is the following note which appears in the Annual Practice, 1929, under Section 56 (2) of the Supreme Court of Judicature (Consolidation) Act, 1925:

The exclusive jurisdiction extended to the supervision of inferior Courts by prohibition, certiorari, case stated at common law, etc'' (See page 2171.)

91. These authorities show that in England a writ' of certiorari is issued by the King's Bench in the exercise of its original jurisdiction and, as I have already stated, it is this jurisdiction which was vested in the High Court by the High Courts Act. It may be pointed out that in England under Section 45 of the Judicature Act an appeal lies to the Divisional Court against an order in matters of certiorari. In this connection the observations of Wallis, C.J., in Chief Commissioner of Income-tax v. North Anantapur Gold Mines, Ltd. (1921) I.L.R. 44 M. 718 at 725 : 41 M.L.J. 177, regarding the jurisdiction under which the writ of mandamus (a prerogative writ like the writ of certiorari) is issued by the High Court, may usefully be referred to. The learned Judge observes:

Now, the issuing of the writ of mandamus 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 the Judges or officers of such jurisdiction to certify or send proceedings before them into the King's Bench Division, whether for the purpose of examining into the legality of such proceedings, or for giving fuller or more satisfactory effect to them than could be done by the Court below. (See Short and Mellor, Crown Practice, 2nd Ed., p. 14).

94. This describes the nature of the writ, but no inference can be made from it as regards the special jurisdiction of the High Court under which it is issued. The petitioners' learned Counsel relied on the following observation of Norman, J., in In the matter of Ameer Khan (1870), 6 Beng. L.R. 392 at 438 in support of his argument:

I may observe, moreover, that the issuing of the High prerogative writ of habeas corpus ad subjiciendum is not a matter of ordinary original civil jurisdiction. In England, it issues on the Crown Side of the Court of Queen's Bench, and in. the late Supreme Court the motion for such habeas corpus was made in the Supreme Court, and not on any side, such as the Plea Side or Equity Side of the Court.(See Fulton's Reports, page 372, note.)

95. In understanding these observations reference must' be had to "the context in which they were made. The learned Judge was considering the question whether a writ of habeas corpus can be issued into the muffasal, that is, beyond the ordinary territorial jurisdiction of the original side of the High Court. The sentences which succeed the extract quoted above, to my mind, make the position clear:

The limits within which such writs can be issued are, in my opinion, not affected by the 11th clause of the Charter of 1865. The answer to the question as to the local limits within Which such habe as corpus may be issued appears to me to depend on the jurisdiction which the late Supreme Court possessed under the Charter of 1774;

96. In the passage quoted, the expression "original jurisdiction" is used in contrast with the jurisdiction over the muffasal which the High Court has, and not in contrast with the appellate and other jurisdictions of the High Court. The passage in Betsant v. Advocate-General of Madras (1919) L.R. 46 I.A. 176 : I.L.R. 43 M. 146 at 159 : 37 M.L.J. 139 (P.C.), namely:

Their Lordships do not think that the powers of the High Courts, which, have inherited the ordinary or extraordinary jurisdiction of the Supreme Court to issue writs of certiorari, can be said to have been taken away....

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 (1889) L.R. 16 I.A. 156 : I.L.R. 13 B. 520 at 533 (P.C.) 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 expression "ordinary jurisdiction" is understood as explained by their Lordships in the Bombay case, then it is clear that the passage in Besant v. Advocate-General of Madras (1919) L.R. 46 I.A. 176 : I.L.R. 43 M. 146 : 37 M.L.J. 130 (P.C.) does not really help the petitioners. It must therefore be held that the jurisdiction to issue a writ of certiorari falling under the original jurisdiction of the High Court, this Court has no jurisdiction to issue such a writ against the Governor acting with the Minister for Public Health.

98. It will thus be seen that the Governor acting with Ministers is entitled to claim exemption from the jurisdiction of the High Court for acts counselled or ordered by them in their public capacity both under Section 106 (1) and Section 110 (a) of the Government of India Act. It is needless to speculate as to why the Legislature has provided this double safeguard for the Local Government. We have seen how it originated and how it was passed on from statute to statute. It was argued that since provision for the exemption of the Government from the High Court's jurisdiction is found explicitly in Section 110 of the Act, it must be assumed that no such provision can be extracted from Section 106 (1). This assumption, even if correct, does not help the petitioners; but I have show that Section 106 (1) also exempts the Government from the High Court's jurisdiction. The learned Government Pleader, basing his arguments on the extensive powers given to the High Court under the first paragraph of Section 9 of 24 and 25 Vict, c. 104, as distinguished from the powers of the "abolished Courts" given to it under the second paragraph, has. attempted to offer some explanation for including in the same Act two sections dealing-with the same subject; but I do not think it is necessary to embark on this inquiry, however interesting it is; we are familiar with legislation "by way of abundant caution"; probably, Section 110 was enacted to make sure that the wholesale repeals and amendments effected by the Government of India Act did not interfere with this safeguard which is a relic of antiquity.

99. We now come to the last question:

3. Should the writ be granted in the present case?

100. As I have held that this Court has no jurisdiction to issue a writ of certiorari against the Local Government, this question does not arise for consideration..

101. In the result, this Civil Miscellaneous Petition is dismissed with costs.

102. C.M.P. No. 4277 of 1929.--This case is governed by the judgment we have just delivered. The petition is dismissed with costs of the Government. The petitioner will pay to respondents 1 and 2 Rs. 150 for their costs in this petition.