Bhailal Jagadish v. Additional Deputy Commr.

Sinha, C.J:— I have had the advantage of perusing the opinions recorded by my learned colleagues on this special Bench. After a careful consideration of those opinions I agree entirely with the opinion recorded by my brother Hidayatullah, J. As I agree with his conclusions for the reasons given by him, I do not think it necessary to record a separate opinion.

Hidayatullah, J.:— This is a petition under Articles 226 and 227 of the Constitution for a writ or order of certiorari to quash the order of the Additional Deputy Commissioner, Akola, passed in appeal in a proceeding under the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949. The petitioner Bhailal Jagdish applied to the Rent Controller, Akola, for permission to terminate the tenancy of the second non-applicant at the end of the five years for which the tenancy stood, on the ground that the land was needed by him for his business of a coal-dealer. The second non-applicant expressed a desire to continue the lease on the same terms and conditions as before (as per cl. 13(i)(b) of the Control Order) and also contested that the petitioner needed the premises to start a bona fide or genuine business. The contentions of the second non-applicant were accepted by the Rent Controller & on appeal by the Additional Deputy Commissioner, the application was dismissed. It was in these circumstances that this petition was filed.

2. This matter was originally before the Chief Justice and Mudholkar, J. but it was referred to this Full Bench because a doubt appears to have arisen about the extent of the powers of this Court under Articles 226 and 227 of the Constitution. In — ‘Sagatmal v. Additional Deputy Commr., Nagpur’, ILR (1951) Nag 769 : 1951 Nag LJ 566, to which I was a party, it was laid down that the power to issue a writ of certiorari is not equal to an appeal and that all that this Court can do under Article 226 is to quash the order and return the case for a fresh determination according to law.

3. I have had the advantage of reading an unsigned draft order by my brother Mudholkar J. (as a member of the Division Bench) included in the Paper-book, in which the view in — ‘Sagatmal's case’, ILR (1951) Nag 769 : 195 Nag LJ 566 is not accepted. According to the learned Judge, it is open to this Court not only to quash such orders but also to substitute its own decision in their place. This view is also shared now by my brother Hemeon J. and I have read his opinion prepared for the consideration of the Full Bench. Since I adhere to my view expressed in — ‘Sagatmal's case’ and have the misfortune to disagree with these learned Judges, I proceed to state my opinion separately.

4. The case was argued for the petitioner by Shri M.N Phadke and for the first non-applicant by Shri T.P Naik, Additional Government Pleader. I may state here that the arguments were confined to the point of law about the extent of the powers of the High Court under Article 226. Shri Phadke's argument is that the powers conferred by Article 226 are as wide as one can conceive and that this Court is, in effect, made a Court of appeal and revision against the decisions of all Courts, tribunals, persons, public authorities and in proper cases even Government. Shri Phadke contends that Article 226 confers, to quote him, ‘super appellate and revisional jurisdiction’ untrammelled by any circumstance or condition; and that the power extends (in addition to the issuing of high prerogative writs) to the issuing of any other writ, order or direction not only for the purpose of enforcing Fundamental Rights but also for ‘any other purpose’. Shri Phadke, however, concedes that if his contention that Article 226 gives a ‘super appellate and revisional jurisdiction’ was not accepted, this Court cannot substitute its own decision for that of a subordinate tribunal. But according to him, Article 226 must be read with Article 227 and the visitorial jurisdiction of the High Court involves the consideration of the orders of subordinate tribunals and their correction not only by quashing them but even substituting the correct decision. He submits that for this purpose a mandamus can issue as also ‘orders or directions’ if necessary.

5. Shortly stated, the argument is that the jurisdiction conferred by Articles 226 and 227 is tantamount to an appellate or revisional jurisdiction and that, in addition to the process of certiorari, this Court has the power to issue a mandamus, as also orders or directions and that in the exercise of this power this Court may not only quash orders but make the orders itself.

6. We are concerned in this case with a tribunal which is constituted under a special law to deal with the letting of houses and the control of rents. The order of that tribunal is subject to but one appeal, namely to the Deputy Commissioner; and put for this appeal, the decision of the tribunal is final and no further appeal or revision lies. We are not concerned here with the enforcement of fundamental rights, nor are we concerned with any administrative action of Government or Public Authority. These important facts have to be borne in mind as no distinction was apparently made on this score by the counsel for the petitioner.

7. Now the claim which has been made by Shri Phadke is very far reaching. It seeks to invest this Court with unparalleled powers and if Article 226 can be read to mean what it is contended it does, there is hardly anything which this Court cannot do. When such vast and unprecedented powers are attributed to this Court, one must naturally pause to consider whether the Constitution does really intend to go that far and whether such a power can be deduced from the letter of the enactment.

8. Articles 226 and 227 read as follows:

“226(1). Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred on a High Court by clause (I) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.”

“227(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.”

9. The power of superintendence which is given by the latter article is a power merely to correct errors of jurisdiction. This visitorial power has never been understood to give to the High Court a power to hear appeals where such appeals do not lie. Nor does it give a power to substitute a decision which the High Court thinks is correct, in place of the decision of the inferior court or tribunal. This was not even contended before us and no such claim having been made, it need not detain us. It was, however, argued that once the record of the case decided by the inferior Court or tribunal is before the High Court, it can, acting under Article 226, do what it likes and there are no limits to its powers. It was contended that the High Court can by a mandamus order the inferior Court on tribunal to come to a particular decision or make ‘an order or direction’ to that effect. The question thus for consideration in this reference is what is the extent of the powers of the High Court vis-a-vis inferior Courts and tribunals, under Article 226 of the Constitution.

10. Article 226 is unfortunately far from explicit and thus some misconception exists about the powers conferred by that Article. It has been assumed generally that the High Court can issue any order or direction it thinks fit and the petitions to this Court have usually been disposed of by issuing a bare notice and an order or direction without any reference to the writs named in the Article. There have been but three cases in which some limits were indicated. I was a party to all three. In — ‘Sheoshankar v. The State’, ILR (1951) Nag. 646 (FB) I indicated certain limits which did not need the approval of the majority (vide page 703). In — ‘Badami Bai v. P.A Tobin’, 1952 Nag LJ 428 Choudhuri, J. and I approved of the decision in — ‘Sagatmal's case’ and following it, passed merely an order quashing the lower Court's order without substituting our own though the decision could only be one way after our decision.

11. Now, the first point to establish in this case is whether the Rent Controller and on appeal the Deputy Commissioner exercise judicial or ministerial functions. The distinction between these two functions is sometimes exceedingly fine, but in most cases it is clear. The term ‘judicial’ has not been successfully defined. Sometimes it is contrasted with ‘administrative’ per Vaughan Williams L.J in — ‘Rex v. Woodhouse’, (1906) 2 KB 501 at p. 511; sometimes with ‘ministerial’ (per Moulton L.J ibid at page 535); sometimes with ‘executive’ per Lord Haldane L.C in —‘Local Government Board v. Arlidge’, (1915) AC 120, at p. 132 and sometimes with the word ‘nonjudicial’ Fitz-Gibbon L.J in — ‘R. v. Local Govt. Board’, (1902) 2 IR 349 at p. 384. Whatever be the meaning, it is at least certain that the term ‘judicial’ extends to the acts and orders of a competent authority which has power to impose a liability or “to give a decision which determines the rights or property of the affected parties” (per Lord Parmoor in the ‘Arlidge case’ at p. 140).

12. In — ‘Board of Education v. Rice’, (1911) AC 179 at p. 182 Lord Loreburn L.C made pertinent observations which I respectfully quote here. The Lord Chancellor observed:

“Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion involving no law. It will, I suppose usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. Provided this is done, there is no appeal from the determination of the Board under S. 7, sub-s. 3 of this Act. The Board have, of course, no jurisdiction to decide abstract questions of law, but only to determine actual concrete differences that may arise, and as they arise between the managers and the local education authority. The Board is in the nature of an arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari.”

13. From this quotation it is clear that the term ‘judicial’ embraces even the acts of special tribunals which though administrative in character perform functions resembling those of Courts. Such tribunals may be subject to certiorari and mandamus, but appeals against their decisions cannot be taken to a Court without that right being expressly given.

14. Again, Hamilton L.J (later Lord Sumner) in the — ‘Arlidge's case’, (1915) AC 120 when that case was before the Court of Appeal observed:

“The Local Government Board here is a statutory tribunal, anomalous as compared with Common Law Courts, created by the Legislature for a special class of appeals and endowed by it with the power of formulating its own procedure. We must assume that a department which the legislature has entrusted will be worthy of the trust. The judgment of such a tribunal, regular on its face, is surely entitled to as much credit, as that of a foreign Court.”

15. In — ‘Everett v. Griffiths’. (1921) 1 AC 631 a case for damages for falsely and unlawfully certifying the appellant as insane,—the question was inter alia whether the respondent Griffiths who signed the order for the reception of the person in the lunatic asylum was protected from an action for damages inasmuch as he was acting ‘judicially’. Lord Atkinson at page 682 observed as follows:

“I gather from a passage in Atkin L.J's judgment that if he had come to the conclusion that a justice of the peace, when acting under Section 16 of the Lunacy Act of 1890, was acting as a judge and not merely as an administrator, he would have decided the appeal in favour of the respondent Griffiths. I assume that, by acting as a judge, he meant doing a judicial act. My Lords, it appears to me to be absolutely plain that the respondent Griffiths, in ordering and directing, on the materials in that section mentioned, that the appellant, who he was satisfied was a lunatic should be received and detained in Colney Hatch, was adjudicating on a vital right and interest of the appellant—his right to liberty. A proceeding may be, and has often been, decided to be a judicial proceeding though the person conducting it is not a Superior Court Judge nor an Inferior Court Judge, nor even a justice of the peace. Neither is it necessary to make it a judicial proceeding that the persons conducting it should have the power to compel the attendance of witnesses or to examine witnesses on oath; nor yet that in the proceedings the stately formalities which distinguish the proceedings of Superior Courts of Justice should be to any extent initiated. Whether a proceeding is a judicial proceeding or merely an administrative proceeding depends much more on what is authorised to be done by the named authority; what is done, and the effect of the act upon the rights and interests of others.

I know no better definition of a judicial act than that given by May C.J in the Irish case of — ‘Reg v. Dublin Corporation’, (1878) 2 LR Ir. 371 at p. 376.

The Chief Justice said: ‘…………the term ‘judicial’ does not necessarily mean acts of a Judge or of a legal tribunal sitting for the determination of matters of law, but……….. a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, imposing liability and affecting the rights of others………’”

16. It may be pointed out that the liability is imposed ‘by the determination itself’ and not ‘by any fact determined.’

17. In — ‘Prentis v. Atlantic Coast Line Co.’, (1908) 211 US 210 at p. 226 it was laid down that:

“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end.”

18. See also the leading case of — ‘Rex v. Electricity Commissioners’, (1924) 1 KB 171 and also — ‘In re Clifford and O'Sullivan’, (1921) 2 AC 570.

19. Applying these tests to the Rent Controller and the Deputy Commissioner acting under the Order, the inference is irresistible that they exercise judicial functions and the Rent Controller is a legal tribunal and not merely an executive Officer. An examination of their powers and duties clearly establishes this.

20. The Regulation of Letting of Accommodation Act, 1945 (XI of 1946) has been passed to provide for regulating the letting and subletting of accommodation in the Central Provinces and Berar and for ancillary matters. By the second section, the Provincial Government is given the power to make general or special orders for controlling the rents, for preventing the eviction of tenants, for requiring such accommodation to be let either generally or to specified persons or classes of persons and for collecting any information or statistics with a view to regulating these matters. The Letting of Houses and Rent Control Order, 1949, was passed under this power. The Controller is appointed to enquire into and decide all these matters. The Controller hears parties, admits evidence, grants costs and generally exercises all the powers which Courts possess. His orders have legal effect and in deciding the cases before him, he not only ascertains facts but also ascertains the law and decides questions of fact as well as questions of law. By his order he imposes liabilities & affects the rights of others.

21. The conclusion is thus inescapable that the Controller and the Deputy Commissioner act as tribunals exercising judicial functions. They are appointed by virtue of an Order framed under an Act which in its seventh section provides:

“No civil court, tribunal, or revenue officer, other than an officer or authority empowered under an order made or deemed to be made under section 2 shall have any jurisdiction by way of appeal or revision in respect of any order passed by any authority empowered in that behalf by any such order in respect of any matter specified in S. 2.”

22. In the Order, Cl. 21 again bars appeals and revisions. It is there provided:

“21(1) ‘Any person aggrieved by an order of the Controller may, within fifteen days from the date on which the order is communicated to him, present an appeal in writing to the Deputy Commissioner of the district.

(3) The decision of the Deputy Commissioner, and subject only to such decision, an order of the Controller shall be final and no further appeal or revision or application for review shall lie from such decision to any authority whatsoever.”

23. There is thus no appeal or revision against the order. I am unable to agree that the power given by Article 226 is an appellate power which can be used even in such cases, because the High Court has not expressly been made an appellate Court over all Courts or tribunals like the Supreme Court. The right of appeal from one Court to another has been described by the highest authority as a substantive right which can only come into being by express legislation. See — ‘Minakshi Naidu v. Subramanya Sastri’, 11 Mad 26 (PC), — ‘Hori Ram Singh v. Emperor’, 1939 FCR 159 at p. 165 and — ‘Sevak Jeranchod Bhogilal v. Dakore Temple Committee’, AIR 1925 PC 155. The nature of an appeal has been examined before by me in — ‘Radhakisan v. Shridhar’, ILR (1950) Nag 532 at p. 553 (FB). It is “in effect a limitation of the jurisdiction of one Court & an extension of the jurisdiction of another”: See — ‘Attorney General v. Sillem’, (1864) 10 HLC 704. But the essential characteristic of the appellate jurisdiction is that it reviews and corrects the proceedings in a cause decided by an inferior Court or tribunal, and, unless otherwise provided by law, “has the same jurisdiction over the cause as the inferior Court or tribunal.” Sometimes analogous powers are given to a Court not of appeal but of revision; but in both cases that power must be granted by statute before the appellate or revisional Court can give its decision on the whole of the cause.

24. Under the Act, and the Order which I am considering, not only no appeal or revision to the High Court is provided but there is an express provision barring them. It is thus not open to contention that the power of appeal can be gathered by implication from Article 226 of the Constitution. If the Constitution intended giving a universal appellate jurisdiction to the High Court, it was the simplest matter to enact an article analogous to Article 136 investing the High Court with such powers. That the power is not an appellate power follows from the decision of the Supreme Court in — ‘Parry & Co. Ltd. v. Commercial Employees Association’, 1952 SCJ 275 at p. 278 where their Lordships observe:

“What the High Court has done really is to exercise the powers of an appellate Court and correct what it considered to be an error in the decision of the Labour Commissioner. This obviously it cannot do. The position might have been different if the Labour Commissioner had omitted to decide a matter which he was bound to decide, and in such cases, a mandamus might legitimately issue commanding the authority to determine questions which it left undecided (vide — ‘Board of Education v. Rice’, (1911) AC 179) but no certiorari is available to quash a decision passed with jurisdiction by inferior tribunal, on the mere ground that such decision is erroneous. The judgment of the High Court, therefore in our opinion, is plainly unsustainable.”

25. In that case the Madras High Court had directed the issue of a writ of certiorari for quashing a portion of an order made by the Labour Commissioner. Madras, in an enquiry under Section 51 of the Madras Shops and Establishments Act. That section reads:

“If any question arises whether all or any of the provisions of this Act apply to an establishment or to a person employed therein or whether section 50 applies to any case or not, it shall be decided by the Commissioner of Labour and his decision thereon shall be final and shall not be questioned in a Court of law.”

26. Their Lordships considered the matter only from the standpoint of jurisdiction or any matter collateral which might have affected jurisdiction. They considered that the matter was brought up before the High Court on certiorari and dealt with as an appeal. This, their Lordships clearly hold was neither the function of the process of certiorari nor the jurisdiction of the High Court.

27. If then the power under Article 226 cannot be equivalent to an appellate (or even revisional) jurisdiction, what is the extent of the power? I do not propose to lay down affirmatively all that is included in that power but only to deal with the narrow question arising in this case. Article 226 gives a power to the High Court to issue ‘directions, orders or writs, including writs in the nature of ‘habeas corpus’, ‘mandamus’, ‘prohibition’, ‘quo warranto’ and ‘certiorari’. What this power includes is a large question but it is easier to say what it does not include.

28. I begin first with the named writs. They are all prerogative writs. Of these habeas corpus, prohibition and quo warranto are not apposite to the present purpose but certiorari and mandamus are. I propose first to deal with the question: what can be done under the process of these two writs? The article says that the High Court can issue writs ‘in the nature of’ certiorari and mandamus. The employment of the words ‘in the nature of’ can have but two meanings. First, that archaic language is sought to be avoided. By the statutory enactment of 1938 (Administration of Justice (Misc. Prov.) Act, 1928, (1 and 2 Geo. VI Ch. 63) it has been declared in England that the prerogative writs of mandamus, prohibition and certiorari shall no longer be issued by the High Court (S. 7(1)) and the jurisdiction before exercised by means of these writs is now to be exercised by means of ‘an order requiring the act to be done or prohibiting or removing the proceedings or matter, as the case may be’ (S 7(2)) and further that ‘the said orders shall be called respectively an order of mandamus’, an order of prohibition and an order of certiorari’ (S. 7(3)). Secondly, that the intention is that the power should be patterned on the accepted practice in the matter of these well-known writs though the writs as such need not be copied. Whichever way one looks at the matter it is obvious enough that though ‘blind adherence’ to the writ is not contemplated, the ‘nature’ of the writs must ever be borne in mind.

29. It was argued that the Constitution does not speak of the Crown Side Practice in England and that the jurisprudence of other countries might well be followed. No such jurisprudence was specifically brought to the notice of the Full Bench during the arguments. Two passages were, however, cited from Willis on Constitutional Law. (1936) pp. 967 and 977 respectively to show that the process of certiorari is an appellate jurisdiction. These passages are:

“There are four methods whereby the Supreme Court may exercise its appellate jurisdiction;

(1) writ of error, (2) appeal, (3) certificate, (4) certiorari.” (page 967).

“The Supreme Court & the Circuit. Courts of Appeals have jurisdiction to issue the writ of certiorari as an appellate proceeding.” (page 977).

30. There is a misapprehension about the meaning of these two passages. They have a direct connection with the Constitution of the United States. Article 3 of the American Constitution provides (omitting certain portions):

“Sec. (1): The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may, from time to time order and establish…

Section (2): The Judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made; or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and Consuls to all cases of Admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and a citizen of another State, between citizen of different States, between the citizens of the same State claiming lands under grants of different States, and between a State or the citizen thereof, and foreign States, citizens or subjects.

Section (3): In all cases affecting ambassadors, other public ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make.”

31. It is obvious from this that the jurisdiction of the Supreme Court to issue a writ of certiorari must of necessity be a part of its appellate jurisdiction. Indeed, the Supreme Court has been granted a special power to review cases from the Courts of appeals by a writ of certiorari granted upon petition of any party to any civil or criminal case, before or after rendition of judgment or decree. See U.S.C.A Tit. 28, para 1254. As regards the Circuit Court of Appeals, being in the nature of adjuncts to the Supreme Court, their jurisdiction has always been appellate and of review of final decisions of certain Courts of Appeal and also by writ of error till that writ was abolished by Act of January 31, 1928 (c. 14, 45 Stat. 54). The observations of Willis, therefore, have special reference to the conditions in America and need not detain us here. It is true that the Supreme Court does sometimes decide the whole cause when the proceedings are brought up on ‘certiorari’, but that power cannot be denied because it does exist in express form. It is, however, a far-cry from this to say that Article 226 has also given a universal appellate (or even revisional) jurisdiction.

32. I shall now take up the question; what is the nature of the writ of certiorari? Certiorari is a prerogative writ and it requires that the record of the proceedings in some cause or matter pending before an inferior Court or tribunal or other judicial or quasi-judicial body shall be transmitted on to the Supreme Court to be there dealt with. It issues in those countries where English Common Law prevails and takes seven different forms. The writ may be classified according to its purpose as follows:

(i) Certiorari to remove for Trial; (ii) Certiorari for judgment or indictment; (iii) Certiorari to quash; (iv) Certiorari for purpose of execution or coercive process; (v) Certiorari to remove orders etc. on case stated; (vi) Certiorari to remove Depositions for Bail and (vii) Certiorari to remove Record for use as evidence. Halsbury's Laws of England (Hailsham Edn.) Vol-IX. pp. 840-851.

33. In a completed case certiorari lies merely to quash and this is the settled law in England and the Colonies in spite of the loose expression “appeal by certiorari”. The position in English law is now further regulated by O. 58 of the Rules of the Supreme Court. In America the position is certainly different but it depends on the special appellate jurisdiction which I have shown above,—certiorari itself being a means of review.

34. We were not shown any case in which certiorari has ever been used as a substitute for appellate power. The observations of Lord Sumner in — ‘Rex v. Nat Bell Liquors, Ltd.’, (1922) 2 AC 128 at p. 156

“Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for, in so doing, it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise”

35. Must be borne in mind. Though I have found cases of the Supreme Court of the United States of America, they are easily explained on the footing of the powers erected there and I do not propose to examine them for the same reason.

36. Now, if certiorari is only to quash, the question is whether the High Court can utilize the other prerogative writ, namely, mandamus to dictate to the inferior Court the decision it should give. Here the argument was two-fold. It was contended that we can either issue a mandamus per se or add a mandamus to certiorari. There are many reasons why this cannot be done but I do not propose just yet to give other reasons. I shall show for the present why a mandamus cannot be used thus. I will take up the question of mandamus as a prerogative writ and the extent of its use vis-a-vis judicial tribunals.

37. The English and Irish Law on the subject of this writ has been collected in one place by Tapping on the Law of the High Prerogative Writ of Mandamus (1848). The position is absolutely clear that neither Lord Mansfield who took great pains to state particularly the circumstances which induced the Court of B.R to refuse or grant the writ, nor Tapping, writing in 1848, were able to find one instance in which mandamus has issued to a judicial tribunal to come to a particular decision.

38. The writ is a suppletory means of doing substantial justice where there is no other specific legal remedy. But according to Tapping (P. 13):

“It does not lie to command the doing of a particular judicial act, for such an act is clearly discretionary, and therefore it is that the writ, when directed to judicial persons, is general in its terms. Thus the quashing of a rate, being a judicial act, the Court of B.R cannot command the Justices by mandamus, so to do,” — ‘Rex v. Justices of Middlesex’, (1839) 9 A & E 540.

39. Again at page 112 the learned author observes:

“The writ is always sent in general terms, to do its duty, and it must not require such inferior Court to do a specific act in a particular mode. — ‘R. v. Suffolk (J)’, 5 N & M 144. — per Patterson J.”

40. Again at pages 176, 177 the learned author once again reiterates:

“In some cases, it is stated to be a principle as to the dispensing the writ of mandamus, that it never issues to command officers in their judicial but only in their ministerial capacities; this as the statement of a principle, is certainly erroneous, for the writ has to command both judicial and ministerial officers. The form of it in the two cases, is, however, different in this, that when it issues to enforce the exercise of a judicial capacity, it is general in its terms and not specific: — ‘Rex v. Borough of Midhurst’, 1 Will 283. Thus, it would merely require the judge of an inferior court ‘to adjudicate’ without specifying what judgment to give; or, in other words, ‘to give sentence’ generally, without saying what sentence (See Stat. 12 Geo 3 Ch. 21, S. 1 and See — ‘R. v. Bishop of Litchfield’, 7 M.d 217); whereas in the esse of a ministerial officer, the writ would, in terms, specifically command the performance of the particular act or acts, as ‘to swear in A.B as church warden &c.”

41. Again at page 230 the learned author says:

“It is the ordinary practice of the Court of B.R to grant the writ of mandamus to command magistrates or the Quarter Sessions to hear and determine or give judgment in cases within their jurisdiction where they have refused altogether to exercise it, but no instance can be cited in which the Court of B.R has granted a mandamus to compel them to do a specific act, as to come to any particular decision—‘R. v. Suffolk (J)’, 5 N & M 144.”

42. I am aware that the writ has been described as one to ampliate justice, and in — ‘Rex v. Barker’, (1762) 3 Burr 1265 at p. 1267 Lord Mansfield laid down that:

“A mandamus is a prerogative writ; to the aid of which the subject is entitled, upon a proper case previously shown, to the satisfaction of the Court. The original nature of the writ, and the end for which it was framed, direct upon what occasions it should be used. It was introduced, to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all occasions, where the law has established no specific remedy, and where in justice and good government there ought to be one. Within the last century it has been liberally interposed for the benefit of the subject and advancement of justice.”

43. The view expressed by Tapping finds support from — ‘Rex v. Hewes’, (1835) 3 A & E 725 : 111 ER 589 and Halsbury's Laws of England (Hailsham Edition) Volume IX, page 764 where the learned authors state that no writ will be issued to a tribunal of a judicial character ‘dictating to them in what manner they are to decide’, and further that ‘the rule holds good even though such decision is erroneous, not only as to facts, but also in point of law; and “although the particular circumstances of the case are such that there is only one way of performing the duty in question”. See also Short & Mellor, Practice of the Crown Office (2nd edition) page 61: See also — ‘R. v. Justices of Middlesex’, (1839) 9 A & E 540; — ‘Rex v. Howard or Farnham (J)’, (1902) 2 KB 363 and — ‘Rex v. Justices of West Riding’, (1834) 1 Ad & E 563 and — ‘R. v. King’, (1888) 20 QBD 430. Cases on this point are legion and can be found in any text book. Of course, where an erroneous construction has been, placed upon a statute by Justices, so that they refuse an application under the statute, on the ground that they have no jurisdiction, the true construction of the statute being in fact to give them jurisdiction, a mandamus will be granted to hear and determine: — ‘R. v. Cloete’, (1890) 64 LT 90.

44. Shri Phadke after considerable research, could find one case in which a mandamus was-held to issue to command the doing by a judicial tribunal of an act in a particular manner or the doing of it by the Court granting mandamus. That case is — ‘Reg v. The Licensing Justices of Merthyr Tydvil’, (1885) 14 QBD 584. In that case Lord Coleridge C.J did lay down a broad proposition of law which has not been accepted. See — ‘Reg v. Howard’, (1889) 60 LT 960 : 23 QBD 502 and — ‘Rex v. Justices of Kingston; Ex. Parte Davey’, (1902) 86 LT 589. The last mentioned case is not an authority in support of Shri Phadke's argument but supports the other side and the authority of the case of ‘the Justices of Merthyr Tydvil’ is considerably shaken. A perusal of the case and of — ‘Rex v. Howard’ would establish this. ‘Rex v. Dodds’, (1905) 2 KB 40, also suggests that the kind of mandamus which Shri Phadke seeks may issue but that case should be read in conjunction with the cases, cited and it will easily be seen that it is really an authority to the contrary. It is true that the opinion in — ‘Queen v. Sharman’, (1898) 1 QB 578, based on — ‘Boulter v. Kent (J)’, (1897) AC 556 was not accepted later on by the Court of Appeal but the decisions in — ‘Reg v. Bowman’. (1898) 1 QB 663 and — ‘Reg. v. Cotham’, (1898) 1 QB 802 do not go as far as is contended for in this case. The case of — ‘Rex v. Dodds’, was concerned with a license granted by the Justices to which a condition was attached. The question was whether an appeal lay or a mandamus could issue. In view of the fact that there was no refusal to renew the license, the mandamus was to deliver the license without the condition. The condition being in excess of the jurisdiction of the magistrates was deleted and the license was already ordered to be delivered by the magistrates.

45. The view of mandamus which I hold finds support in the Colonies and America. In Australia in — ‘The King v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres’, 78 CLR 389 it was observed by Latham C.J, Rich, Dixon, McTiernan and Webb JJ. that:

“Where a Court or public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus. The writ may issue whenever there is a specific legal right to require the performance of a statutory duty, and no specific legal remedy is provided or enforcing that right. R. v. Commissioners of Inland Revenue; In re Nathan’, (1884) 12 QBD 461. The writ goes only in order to compel the performance of a public duty and, in the case of a Court or other body which is under a duty to hear and determine a matter, the tenor of the writ will require the hearing and determination of the matter, and not the decision of the matter in any particular manner.”

46. By S. 75(v), Constitution of Australia, the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth and by the Judiciary Act. Section 33(1):

“The High Court may make orders or direct the issue of writs, (a) commanding the performance by any Court invested with Federal jurisdiction, of any duty relating to the exercise of its Federal Jurisdiction; or (b) requiring any Court to abstain from the exercise of any Federal jurisdiction which it does not possess; or (c) commanding the performance of any duty by any person holding office under the Commonwealth; or (d) mandamus.”

47. In Canada too, the same thing obtains. In — ‘Rex v. Wong Tun’, (1916) 28 Dom LR 698 (Can) before the Alberta Supreme Court followed in — ‘The King v. Fields’, 30 Dom LR 728 (Can) it was laid down;

“Nothing can be clearer than that this Court has, in the absence of express statutory provision, no appellate jurisdiction to review the decision of a magistrate who has once heard a case and decided it in a matter within his jurisdiction. ‘Reg v. Adamson’, (1376) 1 QBD 201 at p. 205.

I think it is quite unusual to direct an inferior court to act in a particular way unless it is plain that what they have to do is purely ministerial and not judicial: per Lord Alverstone in — ‘R. v. Justices of Kingston’, (1902) 86 LT 589 at p. 591.

This court does not by mandamus direct either Justices or any public body or anybody else upon whom a duty is cast how and in what manner they are to perform their duty. They simply direct them to perform their duty. Channel J. ‘(ibid)’.”

48. In America the law is the same. In — ‘Ex parte Nebraska’, (1908) 209 US 436, Fuller C.J laid down:

“The application to this Court is for the issue of the writ of mandamus directing the Circuit Court to reverse its decision, although in its nature a judicial act and within the scope of its jurisdiction and discretion. But mandamus cannot be issued to compel the Court below to decide a matter before it in a particular way or to review its judicial actions had in the exercise of legitimate, jurisdiction. Nor can the writ be used to perform the office of an appeal or writ of error.”

49. See also — ‘In re Lewis, (1893) 150 US 150, and the cases cited by Fuller C.J, — ‘In re Elisha T. Loring; Ex parte’, (1877) 94 US 418, and — ‘In re Flippin’, (1877) 94 US 348; among a host of others.

50. The above observations show the essential nature of the process of certiorari and mandamus, which nature the Constitution requires us ever to bear in mind. After all, when the Constitution mentions the writs of certiorari and mandamus it means something. I cannot do better than quote the words of Griffiths C.J in — ‘Baxter v. Commissioner of Taxes’, 4 CLR 1087, at p. 1107:

“Again in a Constitution establishing a State, whatever its degree of dependence or independence, certain things are taken for granted, just as, to compare small thing's with great, the mere creation of a corporation implies many incidents which it is not necessary to sat forth. The framers of constitution at the end of the 19th century may be supposed to have known that there have been in this world many forms of government, that the various incidents and attributes of those several forms had been the subject of intelligent discussion for more than 2000 years, and that some doctrines were generally accepted as applicable to them respectively.”

51. What is said here of the forms of government applies equally to the Writs which the Constitution names in Article 226. Their nature has been established for centuries past and the Constitution says that the writs to be issued must follow that nature. I need not discuss, statutory mandamus or order in the nature of mandamus. The former is merely a statutory authority and the latter, to quote the words of Lord Campbell C.J — ‘R. v. Dayman’. (1857) 26 LJMC 128:

“is merely a substitute for the old prerogative writ of mandamus being a more speedy and economic remedy.”

52. The propositions of law which I have deduced from authorities in respect to the writs of certiorari and mandamus were well recognised in India even prior to the present Constitution. In — ‘Shiva Nathaji v. Joma Kashinath’, 7 Bom 341 (FB) West J. delivering the judgment of the Court reiterated all these principles. The learned Judge there examined the scope of prohibition, certiorari and mandamus. I am not concerned with prohibition and need not refer to the observations connected with that writ.

53. Referring to certiorari, the learned Judge points out on the basis of — ‘Colonial Bank of Australasia v. Willian’, (1874) 5 PC 417 that

“An objection that the Judge has erroneously found a fact, which though essential to the validity of his order, he was competent to try, assumes that having general jurisdiction over the subject-matter, he properly entered upon the inquiry, but miscarried in the course of it. The superior Court cannot quash an adjudication upon such an objection without assuming the functions of a Court of appeal, and the power to retry a question which the Judge was competent to try.”

54. The learned Judge then remarks:

“‘The grant of the writ being discretional’ — ‘Zink v. Langton’, (1781) 2 Doug. 749, and — ‘Rex v. Bass’, (1793) 5 TR 251—it will be refused on such a ground as that the party seeking to get an inquisition into compensation quashed has allowed the time to expire within which he could have got an award set aside under the same (Lands' Clauses Consolidation) Act — ‘The Queen v. Sheward’, (1880) 5 QBD 179 at p. 182. In India, as in England, the grant of a rule under the extraordinary jurisdiction is discretional, and the power should be used only to sustain, and not further to disturb, the regular course of judicial administration; to prevent distortions, or sham applications of the law, but not to promote uncertainty and restlessness, by an over-nice scrutiny of proceedings that aim at promptness rather than refinement.”

55. The above passage is quoted with approval in — ‘W.R Pandit v. 2nd Additional District Judge, Nagpur’, ILR (1951) Nag 94 at p. 97, though, if I may point out respectfully, there it is erroneously assumed that these remarks apply to the writ of mandamus. So much for certiorari.

56. In dealing with mandamus the learned Judge has observed that the object of the writ is to prevent failure of justice; that it is granted only when there is no other specific remedy by which such a failure can be prevented; that it lies to compel an inferior Court to adopt the requisite proceedings, to record correctly but not to come to a particular decision even though it appears the one actually arrived at may have been erroneous; and that the Court will not substitute its own judgment for that of the Court or body invested by law with authority.

57. In the conclusions which West J. has drawn from his discussion of the writs of prohibition, certiorari and mandamus, I quote the 7th conclusion which is to the following effect:

“(7) The Court will ‘sedulously abstain’ from making any order or refusing to make it on grounds the appreciation of which is exclusively assigned by law to some other authority, provided the legal competence be exercised in good faith on matters that may reasonably be understood as within its lawful range.”

58. It is thus manifest that the High Court acting under the process of certiorari and mandamus as universally understood, cannot either decide a case itself or compel the inferior legal tribunal to come to a particular decision. The High Court may have been permitted by the Constitution to depart from these writs, but that departure can only be in the matter of form and not their essential nature. It would bear iteration to say that the High Court is given the power to issue writs including writs “in the nature of certiorari and mandamus” and the emphasis must always be placed upon the words underlined (herein “ ”), especially ‘in the nature of’. I am aware that in — ‘Charanjit Lal v. Union of India’, AIR 1951 SC 41, Mukherjea J. observed:

“Article 32 of the Constitution gives very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for.”

59. These remarks must be read in the context in which they appear. His Lordship made these remarks at the conclusion of the following passage:

“As regards the other point, it would appear from the language of Article 32 of the Constitution that the sole object of the Article is the enforcement of fundamental rights guaranteed by the. Constitution. A proceeding under this Article cannot really have any affinity to what is known as a declaratory suit. The first prayer made in the petition seeks a relief in the shape of a declaration that the Act is invalid and is apparently inappropriate to an application under Article 32; while the second purports to be framed for a relief by way of injunction consequent upon the first. As regards the third prayer it has been contended by Mr. Joshi, the learned counsel for one of the respondents, that having regard to the nature of the case and the allegations made by the petitioner himself, the prayer for a writ of mandamus in the form in which it has been made, is not tenable. What is argued is that a writ of mandamus can be prayed for, for enforcement of statutory duties or to compel a person holding a public office to do or forbear from doing something which is incumbent upon him to do or forbear from doing under the provisions of any law. Assuming that the respondents in the present case are public servants, it is said that the statutory duties which it is incumbent upon them to discharge are precisely the duties which are laid down in the impugned Act itself. There is no legal obligation on their part to abstain from exercising the powers conferred upon them by the impeached enactment which the Court can be called upon to enforce. There is really not much substance in this argument, for, according to the petitioner the impugned Act is not valid at all and consequently the respondents cannot take their stand on this very Act to defeat the application for a writ in the nature of a mandamus.”

60. The remarks relied upon by Shri Phadke have reference to these observations, & if I may say so with due deference, cannot be interpreted to mean that a radical change from the essential nature of the writ of ‘mandamus’ is implied. What form the writ is to take is one thing and changing the accepted essential nature of a writ is quite a different thing, and his Lordship meant the first and not the second.

61. I have now to consider whether the power can be said to be included in the power to issue “directions, orders or writs”. Here too, the matter will have to be considered under different heads. The meaning of the words ‘directions and orders’ is reasonably clear. They mean directions and orders as commonly understood. By the term ‘writs’ it is not the intention to empower the High Court to issue all the antiquated and obsolete writs numbering hundreds issued by English Courts, an account of which is to be found in the Register of Original Writs and a list in the appendices to Volume 2 of Holdsworth's History of English Law (2nd edition) page 608. Even among those writs, the nearest for this purpose would be a ‘writ of error’. The writ of error has been abolished in the English-speaking countries and its place has been taken by appeal. It was abolished in England in civil matters by the Judicature Act of 1875 and in criminal matters by the Criminal Appeal Act, 1907. It was abolished in America by the Act of January 31, 1928, which provided that “the writ of error in cases civil and criminal is abolished; all reliefs which heretofore could be obtained by a writ of error are hereafter to be obtainable by appeal”. Even so, neither the writ of error nor the ‘writ of false judgment’ entitled the superior Court to decide the cause for itself.

62. The word ‘writ’ has been used in the sense of a document under the seal of the Court issued to a person, or authority including Government in appropriate cases commanding, them or any of them to do or forbear from doing some act. In this sense the words “orders, directions or writs” overlap considerably. The word ‘direction’ in this context may mean that the person to whom it is issued is not commanded peremptorily to a particular act or to forbear from doing it, but is merely guided in the matter of the doing of that duty or forbearance from it. It is obvious that even in the matter of prerogative writs sometimes a command, sometimes a direction is needed. Thus a Court may order the release of a detenu; it may issue a writ quashing a proceeding or it may direct that an election be held within a particular time. In cases which are referred to the High Court on a case stated, it may be necessary to give a direction even to the inferior Court or an authority how to proceed in the matter, as for example, a reference under the Municipal Law or a reference by a Small Cause Court Judge on a question of law or usage having the force of law, or some questions as to the construction of a document which construction may affect the merits of the decision. But a direction to record a particular judgment or to decide a judicial matter in a particular manner can no more be given than a mandamus issued for the same purpose. I shall show presently that a Court does not do indirectly what it cannot do directly; and a directly which would in effect be a mandamus to record a particular decision is no more warranted by the Constitution than the mandamus itself. Before I do so, however, it is necessary to refer to certain decisions of the Supreme Court which were called in aid to prove that a direction can be issued by the High Court.

63. These cases are — ‘Rashid Ahmed v. Municipal Board, Kairana., Kairana’, AIR 1950 SC 163; — ‘Mahomed Yasin v. Town Area Committee, Jalalabad’, AIR 1952 SC 115 and — ‘Sriram v. Notified Area Committee, Khatauli’, AIR 1952 SC 118. These three cases were concerned with the bye-laws of a municipal committee by which the business or trade of the petitioners was completely stopped. Their Lordships were satisfied in these cases that the petitioners' Fundamental Rights had been infringed and they were entitled to have their grievances redressed. It is obvious enough that in a case of this description there is no question of quashing an order and substituting another. These cases required the issue of a ‘mandamus’ or, at any rate, an order or direction in the nature of a ‘mandamus’ commanding the Municipal Committee not to enforce their bye-laws against the petitioners and to desist from prohibiting them from carrying on their trade of wholesale dealers and to withdraw prosecutions against them. These cases cannot afford a parallel to cases of tribunals and Courts which perform judicial functions and exercise an exclusive jurisdiction. These cases which have been relied upon in the opinion of my brother Hemeon J. were not of tribunals and cannot thus be used as precedents for quashing orders of judicial tribunals and substituting by a direction or order a decision by the High Court. Mandamus is never issued for these purposes, as has been show by me above, and no order which would really be an order in the nature of a mandamus can ever issue in this manner.

64. In — ‘Janardhan Reddy v. State of Hyderabad’, AIR 1951 SC 217 at p. 223 their Lordships of the Supreme Court adverted to the need for restraint and observed as follows:

“The power given to this Court under this provision (Article 32) is a large one, but it has to be exercised in accordance with well established principles. The writs to which reference has been made must obviously be correlated to one or more of fundamental rights conferred by Part III of the Constitution and can be made only for the enforcement of such rights.”

65. These remarks also apply to the High Court.

66. In — B. Venkataramana v. State of Madras’, AIR 1951 SC 229, an application under Article 32 complaining of the infringement of the petitioner's Fundamental Right to employment in the State service was made. A direction was issued to the State Government to consider and dispose of the petitioner's application for the post after taking it on file on its merits and without applying the rule of communal rotation. The Supreme Court did not lay down in that case a universal rule applicable also to judicial tribunals.

67. It was argued that Article 226 is wider in its ambit than Article 32 of the Constitution; that Article 32 is meant only to be used when there is an encroachment on fundamental rights, whereas Article 226 can be invoked for any other purpose. It is a matter of considerable doubt whether the words “any other purpose” widen the operation of the Article to an unlimited field of activity or must be read as referring to matters at least analogous to the purpose named before. It is not necessary for the purposes of this case to enter into a discussion of that phrase, which has been interpreted in many ways in different High Courts. In — ‘The State Of Orissa v. Madan Gopal Rungta’, AIR 1952 SC 12, their Lordships of the Orissa High Court had issued an interim order of injunction. Their Lordships dealing with this order stated that the language of Article 226 showed that the issuing of writs or directions by the Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution has been infringed. It can also issue writs or give similar directions for any other purpose. Their Lordships observed that the concluding words of Article 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under that Article. Since the Orissa High Court did not decide anything bearing on fundamental rights, it could not issue a temporary injunction. The observations of their Lordships in the cited case tend to show that the words “any other purpose” are also to be read as referring to what precedes before, namely, the enforcement of Fundamental Rights under Part III of the Constitution or analogous matters.

68. It is clear also that the powers of the High Court are not co-extensive with those of the Supreme Court. In one respect they are much narrower than those of the Supreme Court, because the Supreme Court has been constituted a Court of Appeal against the decisions of any Court or tribunal in India (vide Article 136), It is also to be noticed that even under the very extensive powers which the Supreme Court possesses under Article 136 of the Constitution, the Supreme Court has been reluctant to substitute its decisions for those of special and exclusive tribunals. See, for example,—‘Bharat Bank Ltd., Delhi v. Employees of Bharat Bank Ltd., Delhi’, AIR 1950 SC 188 at p. 200 (per Mahajan J.). See also per Mukherjea J. at page 210. The practice of the Supreme Court cannot, therefore, be used as a parallel by the High Court, because the High Court does not enjoy such wide appellate powers as does the Supreme Court. The appellate powers of the High Court are prescribed by Statutes; but beyond those there is no provision in the Constitution itself.

69. This brings me to the latest case of the Supreme Court. In—‘Veerappa Pillai v. Raman and Raman Ltd.’, 1952 SCJ 261 the Supreme Court, while dealing with a case under the Motor Vehicles Act, had occasion to discuss the ambit of Article 226 and observed as follows:

“It is unnecessary for the disposal of this appeal to consider and decide on the exact scope and extent of the jurisdiction of the High Court under Article 226. Whether the writs it can issue must be analogous to the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari specified therein and the power is subject to all the limitations, or restrictions imposed on the exercise of this jurisdiction, or whether the High Court is at liberty to issue any suitable directions or orders or writs untrameiled by any conditions whenever the interests of justice so require, is a large and somewhat difficult problem which does not arise for solution now………. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken ‘or the order to be made.’………”

70. At the end of their Lordships' decision, we find the further statement as follows:

“Further, it will be noticed that the High Court here did not content itself with merely quashing the proceedings, it went further and directed the Regional Transport Authority, Tanjore, ‘to grant to the petitioner permits in respect of the five buses in respect of which a joint application was made, originally by the petitioner and Balasubramania Pillai and that in case the above buses have been condemned, the petitioner shall be at liberty to provide substitutes within such time as may be prescribed by the authorities’. Such a direction was clearly ‘in excess of its powers and jurisdiction’.”

71. It is clear from this that the jurisdiction conferred by Article 226 is really not so unlimited as is supposed, vide — ‘Sheoshankar v. The State’, ILR (1951) Nag 646 at p. 703. If there were no limits, the remarks ‘excess of powers and jurisdiction’ could not have been made. There are thus limits and the High Court cannot issue orders or directions at its sweet will.

72. I shall now advert to three more reasons of which only a passing reference was made by me so far. They are intimately connected with each other. I have pointed out, (i) that the High Court has no appellate or revisional jurisdiction over the Rent Controller or the Deputy Commissioner, and I have attempted to establish (ii) that the power to issue writs in the nature of certiorari and mandamus does not contemplate the exercise of appellate or revisional jurisdiction. These are the direct modes, of interference. By the first method the entire controversy can be gone into and a decision given on the whole cause. By the second the-order is quashed and the case is sent back ‘to hear and determine’.

73. Now, the appeal and revision not being there, all that the High Court can do is to act under the second part. The addition of a direction that the controversy be decided in a particular manner is doing indirectly what this Court cannot do directly. Further, once the order is quashed, the cause or controversy is once again open. There is a special machinery and jurisdiction for the regulation of the letting of houses and the control of rents. In that jurisdiction the Civil Courts (including the High Court) have no say. Once the quashing order is passed, the matter must be decided ‘within the jurisdiction created by law.’ The High Court is not the Rent Controller, the Industrial Tribunal, the Revenue Board etc., by turns. If it cannot interfere by appeal, it cannot decide the cause nor ask the Court to give a particular decision. The High Court has jurisdiction only to interfere:

“Where the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it, or in violation of the principles, of natural justice or refuse to exercise jurisdiction vested in them, or there is an error apparent on the face of the record, and such, act, omission or excess has resulted in manifest injustice. However extensive the jurisdiction may be it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made………” (per Chandrasekhara Aiyar J. in — ‘Veerappa Pillai's case’, 1952 SCJ 261) (op. cit. sup.).)

74. The limits of this jurisdiction are reached when the order is got cut of the way and the case; is directed to be heard and determined.

75. As regards the second reason that the High Court do indirectly what it cannot do-directly, I cannot do better than refer to the salutary rule laid down in — ‘The King v. Justices of West Riding’, (1834) 5 B & Ad 1003 : 110 ER 1062. Lord Denman C.J in that case observed as follows:

“Assuming that the judgment of the Court of Quarter Sessions does decide that the certificate was void in point of law, I am of opinion that this Court has no power, to interfere; because the 87th section of the General Turnpike Act (4 G. 4, c. 95) makes the decision of the Sessions final and conclusive and takes away the certiorari. The effect of holding that, in consequence of the special nature of the judgment, we might grant a mandamus to them to hear the appeal, would be to repeal the 87th section, and to enable the justices to shrink from the responsibility cast on them by the Legislature, and to throw it on this Court. It is unnecessary to decide whether the sessions were right in holding that the certificate, in this case, was premature. I think that they were perfectly right in deciding at once on the point of law without going into evidence which could not possibly alter their judgment on that point. We are of opinion that the sessions have done what they were authorized to do by the statute; and that we ought not to grant a mandamus to review their decision, because we should be thereby doing indirectly that which the statute prohibits us from doing directly.”

76. Littledale, Taunton and Patterson JJ. agreed. In the judgment of Taunton J., there is the further observation:

“If therefore we made this rule absolute, on the ground that the decision of the sessions was wrong, we should indirectly be repealing the eighty-seventh section of the General Turnpike Act, ‘which makes that Court Supreme Judges in matters of this’ sort.”

77. When this Court decides the controversy and dictates the order to the Rent Controller, it decides the matter itself. That has not only the effect of creating a jurisdiction not existing in this Court, but also of repealing S. 7 of the Act and Cl. 21 of the Order. It has also the effect of giving a finality to the order of this Court, whereas the final order should really be that of the Rent Controller or on appeal of the Deputy Commissioner.

78. The third reason is this. I have already stated that Article 226 must be taken to have given some concrete and definite powers. The attempt has been to attribute to the High Court plenary powers without check; and the argument of the learned counsel for the petitioner is that the High Court has got a power, unlimited in its extent, to question the orders of any Court, tribunal, person, authority and, even in, suitable cases. Government, and to substitute its own decisions for the decisions of the appropriate body or bodies. Such an amorphous power, I do not think, it was ever intended the High Court should possess. The power which has been granted must be exercised in accordance with well-established principles. It must stop short with getting rid of orders which are wrong; but the High Court cannot arrogate to itself the powers of every conceivable tribunal or body in the country and to pass orders in matters which are specially within the competence of those bodies.

79. The Article is not to be read as if it read that the High Court may issue ‘any direction, order or writ’. It is clear enough that a direction is needed in the case of habeas corpus to release a person illegally detained. It is also obvious enough that an order may be needed to reinstate an employee wrongly dismissed. Therefore, what is meant by the Article is that sometimes a direction, sometimes an order and sometimes a writ, appropriate to the case, should issue. The words are ‘directions, orders or writs’ and not ‘any direction, order or writ’. Categories are mentioned, but the Article has nowhere said that the High Court can issue ‘any order or direction’.

80. I am aware that there are cases of other High Courts which might seem to support the contention in this case. But this matter has not been considered there and mere ‘cursus curiae’ cannot be taken to be an indication of a considered opinion on the ambit of Article 226. It is or this reason that I refrain from referring to them. In this Court too such directions have been frequent. There are also cases in which fresh evidence has been ordered to be taken, not on the question of bias, fraud or jurisdiction, but on merits, for decision of the controversy here. Instances are not wanting in which without even quashing the order the case is sent back for recording more evidence. These, if I may point out respectful, are matters entirely outside the jurisdiction of this Court.

81. We must distinguish those cases in which by reason of the order impugned the status quo ante is disturbed and has to be restored, and those in which no such thing happens. Such cases need not be considered because having got rid of the order the ‘status quo ante’ is ordered to be restored. There is no danger of disobedience in such cases. Even if the specific mandamus to restore the party aggrieved is not passed the inferior tribunal is bound to give effect to the order. Indeed a direction of this kind is not needed at all. In — ‘N.S. Sattar Sahib v. State Of Madras’, (1952) 7 Dom LR (Mad) 65 at p. 66 Rajamannar C.J and Venkatarama Ayyar J. observed as follows:

“The question which now arises on an application taken out for a writ of mandamus by the party who was successful before the Government on the prior occasion is whether after the quashing of their order, the Government should take up the application filed before them under Section 64-A of the Motor Vehicles Act and rehear the same. We have no doubt whatever in the matter that when an order of the inferior tribunal on an application properly made to them is quashed by this Court by a writ of certiorari on any ground which does not deal with the merits of the case, it is not only permissible, but it is also incumbent on the inferior tribunal to take up the application and to rehear the same. The learned Advocate-General appearing for the State very properly admitted this position and stated that the Government was prepared to deaf with the application before them in the light of the judgment of this Court. In these circumstances, it is not necessary to grant a mandamus as pointed out by Lord Goddard, C.J, in the recent judgment in — ‘Rex v. Northumberland Compensation Appeal Tribunal’, 1951-1 KB 711 at p. 724. The learned Chief Justice says:

“Once the order is quashed it follows that the applicant will be able to go back to the appeal tribunal.”

82. In this case, once the order of the Government is quashed the applicant will be able to go back to the Government acting under S. 64-A.”

83. In — ‘Jagatmal v. Rent Controller’, Misc. Petn. No. 1626 of 1951, there was a petition for mandamus to hear and determine and in the face of the earlier order in — ‘Sagatmal v. A.D.C, Nagpur’, ILR (1951) Nag 769, the mandamus merely to hear and determine could not be refused.

84. As regards the case reported in—‘Badami Bai v. P.A Tobin’, 1952 Nag LJ 426 the facts appear from the report and they show clearly that? there was no interference on facts but on law. In another case in which Sen J. and I sat together we refrained from passing the order ourselves though it was easy enough (as in any other case) to decide upon the ultimate orders. In — ‘Danteshwari Transport Company v. Regional Transport Authority’, Misc. Petn. No. 5 of 1950 (Nag) there was substitution of one order by another. The orders of the appellate authority were analysed and its binding nature pointed out and the order was that they be given effect to as against orders of the inferior body. That case is distinguishable. Other cases I need not discuss because as I have pointed out that there is no discussion in them about the powers of the High Court. I may add that to determine these powers the established jurisprudence of the countries where such writs obtain is a surer and securer guide than the observations of any lecturer advocating his views. In any event there is nothing to show that the accepted notions of the well-known writs were to be discarded in favour of what Denning L.J observed in his Hamlyn Lectures and I prefer to base my conclusions of the accepted practice in these matters than the opinion of any individual however eminent.

85. I know of no Court which has been invested with such powers, except perhaps the ‘Tribunal de Cassation’ in France, not as it was shaped after 1800 (29 Ventose year VIII) but as it originally was under the old reglement. Once that Court was moved, it used the widest powers imaginable and could make all measures it thought necessary “by rogatory commissions, enquestes ab initio, confrontations, identifications, interrogatories and any other means calculated to bring the truth to light”. The argument seeks to make Article 226 a source of such amorphous power. The High Court undoubtedly has been given vast powers, but those powers are to be exercised in accordance with well-established principles and not at haphazard. If I may use a tag for a different purpose: “Omnis Innovatio Plus Novitate Perturbat Quam Utilitate Prodest.”

86. For these reasons my opinion is that the decision in — ‘Sagatmal's case’, ILR (1951) Nag 769 is correct. On the merits I express no opinion as no argument was addressed to the Full Bench.

Hemeon, J.:— The petitioner Bhailal, who is an importer of coal at Akola, was using an open site belonging to the Maratha Boarding House for the storage of coal, but he was required to vacate it because it was required by the Maratha Boarding House. He was the holder of nazul plots Nos. 24 and 25; and on 10-1-1945, he leased an area of about 60 feet × 40 feet in those plots, at a monthly rent of Rs. 35-0-0, to Ramlal Balgovind for a period of 5 years under a registered deed. The coal business, which was not thriving at the time of the lease to Ramlal Balgovind, subsequently expanded, and the petitioner found that the land in the plot to which he moved his business was inadequate for his needs. On the termination of the lease he accordingly moved the House Rent Controller, Akola under Cl. 13(3)(vi)(c). Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, for permission to give notice to Ramlal Balgovind determining the lease. This application was dismissed by the House Rent Controller; and Bhailal's appeal from that order was dismissed by the Additional Deputy Commissioner. He then applied to this Court for an order or writ of ‘certiorari’ to quash the latter's order and for the issue of a direction to him to grant the permission sought under the aforesaid Order.

87. The House Rent Controller found in his order that Bhailal's need for an open site with a building for the storage of his coal was genuine and that the site occupied by him prior to his return to his own plot was almost double the area of that plot; but he dismissed the application on the ground that his open site of 60 feet × 40 feet behind Ramlal Balgovind's workshop was sufficient for his coal depot. The Additional Deputy Commissioner dismissed the appeal for the reason that Bhailal's need of the site in Ramlal Balgovind's possession was not real. The Orders of the House Rent Controller and the Additional Deputy Commissioner were, for the reasons given by Mudholkar J., unsustainable; and Ramlal Balgovind's leaffned counsel did not support them before us. They were, therefore, liable to be quashed.

88. The next question then is whether this Court should merely direct the quashing of those orders or whether it should also direct the House Rent Controller to accord permission to Bhailal to determine the tenancy of Ramlal Balgovind. Article 226 of the Constitution of India is in the following terms:

“Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of ‘habeas corpus’, ‘mandamus’, prohibition, ‘quo warranto’ and ‘certiorari’, or any of them, for the enforcement of the rights conferred by Part III and for any other purposes.”

89. In — ‘Manohar v. G.G Desai, Deputy Commissioner, Yeotmal’, 1951 Nag LJ 346, a Division Bench of this Court made the following observations at page 349:

“……… We are clear that apart from the power to issue writs specifically named in Article 226, the High Court has been expressly empowered to issue any “directions, orders or writs” for the enforcement of any of the rights conferred by Part III and for any other purpose. It is difficult to appreciate Shri Naik's argument that ‘directions, orders or writs’ can issue only in the circumstances in which the writs named specifically can issue because that argument, if accepted, would so restrict the meaning of the words ‘directions, orders or writs’ as to render them otiose. It is commonplace that effect must be given to every provision of a statute and that no word should be regarded as a surplusage unless that would lead to an absurdity. No absurdity results because of the construction we place on this Article.

Again, the power conferred by Article 226 on High Courts is discretionary. It would, therefore, not, in our opinion, be right to read limitations in the wide powers conferred by the general words used therein merely because these words are followed by some specific words which connote a restricted power, more so when the Article provides that the power conferred by the specific words is included in that conferred by the general words. The contention, therefore, that our powers are limited to the issuing of the specified writs only must fail.”

90. In — ‘Chhaganlal v. The Additional Deputy Commissioner, Nagpur’, Misc. Petn. No. 37 of 1950 (Nag), the learned Judges in dealing with a matter similar to that now before me considered the question of returning the case to the Rent Controller for a decision in accordance with a law or of themselves passing a suitable order; and they elected to adopt the latter course. A Full Bench of this Court had in dealing with an application for a writ of mandamus made in — ‘Danteshwari Transport v. Regional Transport Authority’, Misc. Petn. No. 5 of 1950 (Nag) the following observations:

“But the power of this Court to issue a writ in the nature of ‘mandamus’ is included in the power to issue directions, orders or writs which power cannot by any means be said to be limited to the issue of only the well known prerogative writs under the common law……… If the ends of justice so require the Court has power not only to order the undoing of what was done in contravention of law but direct the performance of what ought to have been done in the first instance.”

91. The Court thereafter ordered the Regional Transport Authority to cancel all permits which infringed the right of the applicant and to restore to him the permits held by him for two routes. This case was followed by a Division Bench in — ‘New Motor Transport Company, Drug v. Regional Transport Authority, Raipur’, AIR 1952 Nag 111.

92. In — ‘Sagatmal v. M.V Deo, Additional Deputy Commissioner, Nagpur’, 1951 Nag LJ 566, however, another Division Bench of this Court remarked at pp. 569 and 570:

“………………….when exercising its extraordinary powers under a writ of ‘certiorari’ the proper order for this Court to pass is to quash the orders and to leave the authorities to pass the right orders and not for this Court to substitute its own orders, because this Court does not exercise the jurisdiction of an appellate Court which has always the authority of substituting its own operative orders for those of the lower Court. Their Lordships of this Court, who decided the previous case referred to above, have not made any reference to any precedent for the kind of order passed by them. It is for the tribunal which has been entrusted with the exercise of jurisdiction under the statute to exercise its powers and not for this Court. The function of this Court in its extraordinary jurisdiction under Article 226 of the Constitution must be confined to pointing out the true legal position and either quashing the orders or letting those orders stand, as the case may be. It is not for this Court to exercise such powers as are ordinarily exercisable in its appellate or revisional jurisdiction. The Court, while entertaining an application for a writ like the present does not act either under its appellate or its revisional jurisdiction.”

93. There has thus been a conflict of decisions in this Court; and I now proceed to survey the views of other Courts in the matter. In — ‘Brajnandan Sharma v. State of Bihar’, AIR 1950 Pat 322 Meredith C.J said

“I think Article 226, when it says that the High Court shall have power to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs including writs in the nature of ‘habeas corpus’, ‘mandamus’, prohibition, ‘quo warranto’ and ‘certiorari’, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose, means more than this and gives us full authority, and indeed a duty to issue necessary directions. If the direction does not conform exactly to one of the writs specifically mentioned that does not matter. We are given, the widest powers of issuing directions, orders or writs, and in the present case, besides making a declaration that the order is void, I would issue a direction upon the State Government prohibiting it and any of its officers from taking any action for the enforcement of the order in question.”

94. Chagla C.J in — ‘Jashingbhai v. District Magistrate, Ahmedabad’, ILR (1950) Bom 539 held that it was not possible to read “directions, orders or writs” as being ‘ejusdem generis’ with what follows, because they referred to a larger category in which writs in the nature of ‘habeas corpus’, ‘mandamus’, ‘quo warranto’ and ‘certiorari’ are included; that the Article conferred upon the High Court power to issue not only writs in the nature of various categories specified in that Article, taut those writs themselves and that those writs or orders could be issued not only for the enforcement of fundamental rights but for any other purpose. In the event the respondents were prohibited from taking any action under an order passed under the Bombay Public Security Measures Act, 1947.

95. The petitioners in — ‘Ismail v. State of Orissa’, AIR 1951 Orissa 86 had sought the issue of a writ of ‘habeas corpus’ against orders of internment; and the Court, being of the opinion that such a writ would not, strictly speaking, apply against an order of internment which was not detention as ordinarily understood, issued a direction to the State Government prohibiting them and their officers from-taking action for the enforcement of the orders in question. In so acting, they followed the views of the aforesaid Patna and Bombay cases., and ‘inter alia’ remarked that Article 226 empowers the High Court to issue necessary directions for the enforcement of any of the rights conferred by Part III of the Constitution even though such directions may not strictly-conform to one of the writs specifically mentioned in that Article.

96. Bose J. in — ‘Shyamapada Ganguly… v. Abani Mohan Mukherjee…Opposite Party.*’, AIR 1951 Cal 420 pointed out that under Article 226 the power of the Court is not confined to the power to issue writs in the nature of ‘mandamus’ and of the other writs mentioned therein and that the Court has wider powers. A Division Bench in — ‘R.K Bose v. Gauhati University’, AIR 1951 Assam 163, followed the view of Chagla C.J in—‘Jashingbai v. District Magistrate, Ahmedabad’, ILR (1950) Bom 539 cit. sup.

97. Article 226 is, as Das Gupta J. remarked’ in — ‘Elbridge Watson…Appct; v. R.K Das…Resp.’, AIR 1951 Cal 430,’ not made subject to any existing law or to any restrictions imposed by the law. The contention that the High Court had no power of interference if there was suitable provision in the Income-tax Act was not accepted, although Das Gupta J. indicated that interference under Article 226 was not proper if that Statute furnished an adequate legal remedy which was not less convenient, beneficial and effective.

98. ‘Sayeedah v. State Of Bihar*’, 30 Pat 21 related to a case in which an appeal was pending but the Division Bench acted under Article 226; and in — ‘Soorajmull v. Assistant Controller of Customs’, AIR 1952 Cal 103, Bose J. made the following observations:

“………….a writ of ‘certiorari’ does lie, even though there may be an alternative remedy open to the petitioner by way of appeal under the provisions of the Sea Customs Act and there is also the alternative remedy by way of action under the general law.

It was contended by the learned counsel for the petitioner that Article 226 of the Constitution has vested the High Court with supreme and unqualified power to issue the Prerogative Writs in proper cases. This power is not subject to any other provisions of the Constitution nor subject to the provisions of any law. Article 372 provides that all laws in force are subject to the provisions of the Constitution. Therefore in so far as S. 198 purports to impose any fetter or restriction on the exercise of the absolute and unqualified power of the High Court as contained in Article 226 it must be held to be void to the extent of the inconsistency or repugnancy. In my view S. 198 only imposes a bar or disability on the person who seeks to commence proceedings in a Court of lav/but it does not fetter or restrict the power of the High, Court or affect the jurisdiction of the High Court in any way. If however, it would tend to affect the power of the Court it would be void to that extent.

Apart from this it is well established that in order that power of a Court to issue writ of certiorari can be taken away by any Statute there must be express negative words to take away the power. (Halsbury, Vol. 9, para. 1455, p. 861, Hailsham Edition).

But even in cases where ‘Certiorari’ is expressly taken a way a writ may be issued if the inferior Court or tribunal has acted without or in excess of jurisdiction. See — “Ex Parte Bradlaugh’, (1878) 3 QBD 509 and — ‘Venkata Narasimha Rao v. Municipal Council Narasaraopet’ AIR 1931 Mad 122 and also Halsbury, Vol. 9, paragraph 1458.

If in spite of an absolute bar imposed by a statute to initiate proceedings for the issue of a writ of Certiorari a person can apply for such writ and the Court can issue such writ where there is want of excess of jurisdiction. I fail to see why this Court cannot issue the writ in the present case when the Customs Authorities have exceeded their jurisdiction, merely because a partial bar in the shape of S. 198 is imposed lay the Sea Customs Act. I hold that this Court has jurisdiction and power to issue the writ of Certiorari asked for.”

99. I now turn to some rulings of their Lordships of the Supreme Court of India. In — ‘Rasbid Ahmed v. Municipal Board, Kairana’ 1950 SCR 566, in which the scope of Article 32 of the Constitution gi India was under consideration, it was submitted that as the petitioner had an adequate remedy by way of appeal, the Court should not grant any writ in the nature of the prerogative writ of mandamus or certiorari. Their Lordships repelled this contention in the following words:

“There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, but the powers given to this Court under Article 32 are much wider and are not confined to issuing prerogative writs only.”

100. Their Lordships also issued specific directions to the respondent Municipal Board not to prohibit the petitioner from carrying on his trade and to withdraw his pending prosecution.

101. In — ‘G. Veerappa Pillai v. Raman and Raman Ltd.’, AIR 1952 SC 192 the Madras High Court was moved for a writ of ‘certiorari’ for quashing the orders and the proceedings of the Regional Transport Authority, the Central Road Traffic Board, Madras and the State of Madras and for the issue of a writ of mandamus or other such appropriate directions to the first respondent to transfer, issue or grant “the five ‘pucca’ permits in respect of the route Kumbakonam to Karaikal to the petitioner herein”. The High Court quashed certain proceedings of the Regional Transport Authority and the Central Road Traffic Board, Madras, and an order of the State of Madras, and it also directed the issue to the petitioner of permits for the 5 buses in respect of which a joint application had been made originally by them. Their Lordships of the Supreme Court in dealing with the order regarding the issue of permits held that it was clearly in excess of the powers and jurisdiction of the High Court.

102. They also made the following observations:

“Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.”

103. In — ‘Parry & Co. Ltd. Dare House, Madras v. Commercial Employees Association Madras’, AIR 1952 SC 179 their Lordships said:

“The records of the case do not disclose any error apparent on the face of the proceeding or any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice. Thus there were absolutely no grounds here which would justify a superior Court in issuing a writ of ‘certiorari’ for removal of an order or proceeding of an inferior tribunal vested with powers to exercise judicial or quasi-judicial functions. What the High Court has done really is to exercise the powers of an appellate Court and correct what it considered to be an error in the decision of, the Labour Commissioner. This obviously it cannot do……………no ‘certiorari’ is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous.”

104. Although the question in issue here was not the exact question canvassed in the cases reported above, it is clear that the bulk of High Court opinion is in favour of the view taken in — ‘Manohar v. G.G Desai, Deputy Commissioner, Yeotmal’, 1951 Nag LJ 346 supra and against that taken in — ‘Sagatmal v. M.V Deo, Addl. Deputy Commr., Nagpur’, I.L.R (1951) Nag 769 ‘supra’. This majority view received support from the decision of their Lordships of the Supreme Court of India in — ‘Rashid Ahmed v. Municipal Board, Kairana., Kairana’, 1950 SCR 566, in which specific directions were issued to the Municipal Board not to prohibit the petitioner from carrying on his trade and to withdraw his pending prosecution. That was a case under Article 32 of the Constitution of India, but Cl. (2) of that Article and Cl. (1) of Article 226 are in many respects similar; and in fact the powers of the Supreme Court are at present more restricted than those of a High Court, as Article 32 relates to the enforcement of the rights conferred by Part III and Article 226 relates to such enforcement and to the issue of directions, orders and writs for any other purpose. In that case, the submission that as the petitioner had an adequate remedy by way of appeal, a writ in the nature of ‘mandamus’ or ‘certiorari’ should not be granted was repelled in these words:

“There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs but the powers given to this Court under Article 32 are much wider and are not confined to issuing prerogative writs only.”

105. Their Lordships then issued the directions to which I have already adverted.

106. Four of the learned Judges who adjudicated in that case were among those who dealt with — ‘G. Veerappa Pillai v. Raman and Raman Ltd.’, AIR 1952 SC 192 supra. No attempt to distinguish it was made nor was it even referred to in the judgment; and the fact that the instant question was not decided will be clear from the following observations which they made:

“It is unnecessary for the disposal of this appeal to consider and decide on the exact scope and extent of the jurisdiction of the High Court under Article 226. Whether the writs it can issue must be analogous to the writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari specified therein and the power is subject to all the limitations, or restrictions imposed on the exercise of this jurisdiction, or whether the High Court is at liberty to issue any suitable directions or orders or writs untrammelled by any conditions whenever the interest of justice so require, is a large and somewhat difficult problem which does not arise for solution now.”

107. The Supreme Court Bench which decided the case of — ‘Parry & Co. Ltd. v. Commercial Employees Association’, AIR 1952 SC 179 consisted of three learned Judges who had been members of the Bench which dealt with the case of — ‘Rashid Ahmed v. Municipal Board, Kairana., Kairana’, 1950 SCR 566 ‘supra’. They too made no reference to that case; and while they held that a High Court is not justified in issuing a writ of certiorari to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous, they did not rule that High Court is inhibited from issuing suitable directions or orders whenever the interests of justice so require.

108. It seems to me, therefore, and I say so with respect, that the view taken in—‘Sagatmal v. M.V Deo, Additional Deputy Commissioner, Nagpur’, ILR (1951) Nag 769 was too restrictive and that the powers of a High Court under Article 226 are wider than those envisaged in that decision. In interpreting a constitution or organic statute, as their Lordships of the Judicial Committee of the Privy Council pointed out in — ‘British Coal Corporation v. The King’, AIR 1935 PC 158, that construction most beneficial to the widest possible amplitude of its powers must be adopted. This does not connote that High Courts are given unlimited power to do anything by their writs or orders under Article 226 and a Full Bench held in — ‘Emperor v. Jasingbhai’, 52 Bom LR 544 (FB) that some limitation must be placed by them on their own powers. At the same time, the power conferred by Article 226 is ample and wider than the power of issuing English prerogative writs. That being so, it would not, in my opinion, be correct to limit that power to the Indian law which preceded the Constitution or to the English common law. Article 372 provides that all laws in force are subject to the provisions of the Constitution; and the power conferred by Article 226 can only be altered by the legislative process set down in Article 368. Article 226 is, as it stands, an overriding and unfettered article and it is not made subject to any existing laws or to any restrictions imposed by law: — ‘Elbridge Watson…Appct; v. R.K Das…Resp.’, AIR 1951 Cal 430.

109. I would accordingly quash the orders of the Additional Deputy Commissioner and the Rent Controller, who were not justified in withholding permission to the petitioner to give notice of termination of tenancy to the second respondent and whose orders went beyond the purview of the Rent Control Order. I would also give the required permission to the petitioner to serve notice on that respondent to terminate his tenancy.

Mudholkar, J.:— This is a petition under Articles 226 and 227 of the Constitution for an order or writ of ‘certiorari’ to quash the order of the Additional Deputy Commissioner, Akola, passed in appeal arising out of a proceeding under the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949.

110. The petitioner is the holder of certain nazul plots in the town of Akola. On 10-1-1945 he leased out one of the plots measuring 60 ft. × 40 ft. to respondent 2 for a period of 5 years on a monthly rent of Rs. 35-0-0. The petitioner is an importer of coal, and till recently he was using the open site belonging to the Maratha Boarding House for storing his coal. He had to vacate that site because the Maratha Boarding House required it for its own use. Thereafter he shifted his business to one of his own plots which is adjacent to the plot leased out to respondent 2. The accommodation which he has got at present is insufficient for his purpose and so he applied to the Rent Controller for permission to give notice to respondent 2 to terminate his tenancy. His application was rejected by the Rent Controller. He preferred an appeal from the order of the Rent Controller before the Additional Deputy Commissioner who dismissed it. It may be mentioned that the Rent Controller while dismissing the application of the petitioner held that the need of the petitioner for an open site for storing his coal was a genuine one. The ground on which he dismissed the petitioner's application, however, was that the petitioner could conveniently carry on his business on the site at present in his occupation by constructing a structure thereon. It may be mentioned that the Rent Controller also found that the site which the petitioner was occupying before he shifted to his own plot was roughly double in area of the plot in question. The order of the Rent Controller was interpreted by the Additional Deputy Commissioner to mean that the petitioner did not really need the plot in question. On this ground he dismissed the petitioner's appeal.

111. The petitioner thereupon moved this Court under Article 226 of the Constitution. His petition came up before a Division Bench of this Court consisting of my Lord the Chief Justice and myself. We were of the opinion that having found that the need of the petitioner was a genuine one, neither the Rent Controller nor the Additional Deputy Commissioner was justified in withholding permission to the petitioner to give notice to respondent 2 to terminate his tenancy. We were also of the opinion that it was not open to the Rent Controller to say that the petitioner would be able to meet his requirement by constructing a godown on the site in his possession because there is no provision in the Rent Control Order which enables the Rent Controller to require the landlord to spend money and construct a structure for meeting his own requirement. Accordingly, we came to the conclusion that the orders of the Rent Controller and the Additional Deputy Commissioner were unsustainable and must be quashed. We were, however, not in agreement on the question whether after quashing the order we should grant the permission ourselves or at least make a direction to the Rent Controller to accord permission to the landlord to terminate the tenancy of respondent 2 or simply leave the matter there after quashing the orders. In accordance with the decision in — ‘Sagatmal v. M.V Deo, Additional Deputy Commissioner Nagpur’, 1951 Nag LJ 566 to which my Lord the Chief Justice was a party, he was of opinion that we could not grant the permission ourselves or give a direction to the Rent Controller as to what should be done. In ‘Manohar v. G.G Desai, Deputy Commissioner Yeotmal’, 1951 Nag LJ 346, to which I was a party, it was observed that such a direction could be given. It would also follow from that decision that we could ourselves grant the permission if we thought it proper to do so. Apart from the decision in ‘Manohar's case’, there are several other decisions of this Court, to which I will refer presently, which took the same view as was taken in — ‘Manohar's case’. In view of the fact that there was a conflict of views in this Court on the question of the extent of its powers under Article 226 of the Constitution, the case was referred to a Special Bench for decision.

112. It was accepted before us that the orders of the Additional Deputy Commissioner and the Rent Controller must be quashed. The arguments that were advanced related only to the question whether we had power to make a consequential order.

113. I would state at the outset that it is Article 226 of the Constitution to which we must look in order to determine the nature and extent of our powers. That article reads thus:

“(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of ‘habeas corpus, mandamus’, prohibition, ‘quo warranto’ and ‘certiorari’, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred on a High Court by Cl. (1) shall not be in derogation of the power conferred on the Supreme Court by cl. (2) of Article 32.”

114. In — ‘Manohar's case’, (1951 Nag LJ 346) it was contended that writs of ‘certiorari’ and prohibition cannot issue unless the impugned order is judicial or a quasi-judicial one and that an order requisitioning property does not fall in either category. It was also contended that a writ of ‘mandamus’ was not available for quashing an order of that kind and that the petition must be dismissed. The argument that the petition should be dismissed was repelled and it was observed:

“……we are clear that apart from the power to issue writs specifically named in Article 226, the High Court has been expressly empowered to issue any ‘directions, orders or writs’ for the enforcement of any of the rights conferred by part III and for any other purpose. It is difficult to appreciate Shri Naik's argument that ‘directions, orders or writs’ can issue only in the circumstances in which the writs named specifically can issue because that argument, if accepted, would so restrict the meaning of the words ‘directions, orders or writs’ as to render them otiose. It is commonplace that effect must be given to every provision of a statute and that no word should be regarded as a surplusage unless that would lead to an absurdity. No absurdity results because of the construction we place on this Article.

Again, the power conferred by Article 226 on High Courts is discretionary. It would, therefore, not, in our opinion, be right to read limitations in the wide powers conferred by the general words used therein merely because these words are followed by some specific words which connote a restricted power, more so when the Article provides that the power conferred by the specific words is included in that conferred by the general words. The contention, therefore, that our powers are limited to the issuing of the specified writs only must fail.”

115. The scope of the powers of the High Court was considered in — ‘Danteshwari Transport Company v. Regional Transport Authority’, Misc. Petn. No. 5 of 1950 (Nag) (FB), which is a decision of a Full Bench. The learned Judges there observed:

“But the power of this Court to issue a writ in the nature of ‘mandamus’ is included in the power to issue directions, orders or writs which power cannot by any means be said to be limited to the issue of only the well known prerogative writs under the common law……If the ends of justice so require me Court has power not only to order the undoing of what was done in contravention of law but direct the performance of what ought to have been done in the first instance.”

116. In — ‘Chhaganlal v. Additional Deputy Commissioner, Nagpur’, Misc. Petn. No. 37 of 1950 (Nag), the learned Judges were dealing with a matter similar to the present and after quashing the order of the Rent Controller they thought it proper to substitute their own order for that of the Rent Controller. Another Division Bench of this Court, of which I was a member, did, likewise in — ‘Raoji v. V.H Nanoti’, 1951 Nag LJ 565; In — ‘Shamrao v. Municipal Committee Nagpur’, Mis. Petn. No. 102 of 1950 (Nag);:— ‘V.M Deshmukh v. K.M Kothari’, ILR (1951) Nag 808 and — ‘Sundersingh v. Additional Deputy Commissioner Nagpur’, Misc. Petn No. 6 of 1951 (Nag). I was a party to holding that after quashing an order of an inferior tribunal this Court was competent to make a direction or substitute its own order. Another Division Bench of this Court also held likewise in — ‘Hiralal v. State of Madhya Pradesh’, Mis. Petn. No. 30 of 1950 (Nag). As against these decisions there is the decision in — ‘Sagatmal's case’, (ILR (1951) Nag 769), to which I have already adverted. There the learned Judges held:

“……when exercising its extraordinary powers under a writ of ‘certiorari’ the proper order for this Court to pass is to quash the orders and to leave the authorities to pass the right orders and not for this Court to substitute its own orders, because this Court does not exercise the jurisdiction of an appellate Court which has always the authority of substituting its own operative orders for those of the lower Court. Their Lordships of this Court, who decided the previous case referred to above, have not made any reference to any precedent for the kind of order passed by them. It is for the tribunal which has been entrusted with exercise of jurisdiction under the statute to exercise its powers and not for this Court. The function of this Court in its extraordinary jurisdiction under Article 226 of the Constitution must be confined to pointing out the true legal position and either quashing the orders or letting those orders stand, as the case may be. It is not for this Court to exercise such powers as are ordinarily exercisable in its appellate or revisional jurisdiction. The Court, while entertaining an application for a writ like the present, does not act either under its appellate or its revisional jurisdiction.”

117. In — ‘W.R Pandit v. Second Additional District Judge Nagpur’, ILR (1951) Nag 94, to which I was a party, the view taken by West J. in — ‘Shiva Nathaji v. Joma Kashinath’, 7 Bom 341 (FB) to the effect that even where a writ is issued, the High Court cannot ask an inferior Court to come to a particular decision even though it appears to it that the decision arrived at by the inferior tribunal is erroneous was approved. It was suggested in arguments by the learned Additional Government Pleader that this decision runs counter to the other decisions to which I was a party and that it supports the view taken in — ‘Sagatmal's case’. (ILR (1951) Nag 769). I do not, however, read the decision in the way suggested by the learned Additional Government Pleader. It is one thing to ask an inferior judicial tribunal to come to a particular decision on merits but it is quite another to ask it to act in a particular way when it is plain that is the only course left open to that tribunal, consequent upon decision of the High Court. A direction of that kind cannot be regarded as one to arrive at a particular decision on merits. Such a direction is merely of a consequential nature and is wholly within the competence of this Court: See — ‘Rex v. Justices of Kingston’, (1902) 86 LT 589 at p. 590. No other decision of this Court was brought to our notice where a restricted view of the powers of this Court under Article 226 of the Constitution has been taken.

118. There are numerous decisions of other High Courts in India where a view similar to that taken in ‘Manohar's case’ regarding the powers of this Court has been taken. Those decisions have been adverted to in the opinion of my learned brother Hemeon J. and, therefore, it is not necessary for me to cite them here.

119. There is no doubt that the King's Bench Division after bringing the record of the inferior tribunal by a ‘certiorari’ usually does no more than quash the proceedings. Instances, however, are not wanting of cases in which the King's Bench had after quashing the proceedings thought it proper to issue a direction of a consequential or incidental nature. What is being proposed to be done in the present case is something of that kind and, therefore, I am of opinion that even the English decisions do not stand in our way.

120. It would appear that in ‘Sagatmal's case’ it was regarded that making a direction to an inferior tribunal or granting the permission to terminate the tenancy is not permissible because the power exercisable in proceedings for issue of a writ of ‘certiorari’ is not an appellate power. I would accept for the purpose of this discussion that the powers of this Court under Article 226 are not appellate powers in the strict sense of the word and that they might be regarded as supervisory powers. Even then, I am of opinion that making a direction to the inferior tribunal or substituting the order of this Court for that of the order of the inferior tribunal is permissible under the article when such an order is of a consequential nature. In construing the provisions of Article 226, we cannot rely implicitly upon the English precedents because Article 226 is cast in very wide terms. So, unless we find something in the article itself which would justify us in restricting the amplitude of the powers flowing from it, we would not be right in giving it a restricted meaning as has been suggested in — ‘Sagatmal's case’, (ILR (1951) Nag 769).

121. English precedents cannot be regarded as sure guides even though Article 226 makes a reference to the ancient prerogative writs. The mere specification of these writs in Article 226 cannot control the interpretation of that article or compel us to so interpret if as to limit the extent of our powers to that exercisable by the Courts in England in respect of these writs.

122. These writs, namely, ‘habeas corpus, certiorari’, prohibition, ‘mandamus’ and ‘quo warranto’, were known as high prerogative writs. Each of them had its own purpose, its own history and its own procedure. The origin of the writ of ‘habeas corpus’ is lost in antiquity. It is regarded as the highest remedy in law for any man that is imprisoned. This writ was used from the end of the 15th century onwards by the King's Bench and Common Pleas to assert their jurisdiction against rival Courts, such as the Chancery, the Council, the Admiralty, or the Court of High Commission. By means of this writ, they could bring before themselves and release persons who had been imprisoned by one of these rival Courts, if in their opinion the Court had acted in excess of its jurisdiction. Thus, it came to be a writ by which a person unlawfully imprisoned could be released. The issue of this writ was regulated by Statutes of 1641, 1679 and 1816 and abundant securities were provided against a refusal to issue it, and for speedy obedience to it when issued.

123. The writ of ‘certiorari’ could be issued either by the Chancery or the King's Bench when “the King desires to be certified of any record” made by any Court of record or by certain officials or by tribunals, public or domestic. This writ was issued when the usurpation of jurisdiction by an inferior tribunal was a ‘fait accompli’ and so its object was mainly to quash proceedings of the Court or a tribunal when they were found without jurisdiction, to make better provisions for the fair conduct of a case and to ensure the observance of the requirements of natural justice.

124. The writ of prohibition, on the other hand, issued before anything had taken place before an inferior tribunal or official. This writ issued usually only out of the Court of King's Bench, being the King's prerogative writ, but, for the furtherance of justice, it could also be issued in some cases out of the Court of Chancery, Common Pleas or Exchequer. Under these writs, commands were issued to the Judges and parties to a suit in any inferior Court requiring them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction.

125. The writ of ‘mandamus’ was a command issuing in the King's name and from the Court of King's Bench, and directed to any person, corporation, or inferior Court of jurisdiction, within the King's dominions, requiring them to do some particular thing specified therein, which appertained to their office and duty. This writ was thus used to compel the admission or restoration of any person to a public office, or to compel the holding of a Court, or to the performance of any other public duty by a person, corporation or an inferior Court concerned.

126. The writ of ‘quo warranto’ was a writ of right for the King against persons who claimed or usurped any office, franchise, liberty or privilege belonging to the Crown to enquire by what authority they maintained their claim, in order to have the right determined. When a writ of this, kind was issued, a person concerned had to appear before a Court and justify his claim.

127. A review of English cases would show that the writs, and in particular writs of ‘certiorari’, prohibition and ‘mandamus’, were sought by persons who wanted their grievances, arising out of administrative acts of the State or acts of the administrative tribunal or local bodies, to be redressed. In the year 1929, the late Lord he wart, the then Lord Chief Justice of England, published his famous book ‘The New Despotism’ which is an attack on the administrative departments in Great Britain. The effect of the publication of this book was to give immediate political importance to the question whether the traditional liberties of the British people were endangered by the acquisition of legislative and judicial functions by the executive: (Robson's Justice and Administrative Law, Third Edition, page 419). Eventually, therefore, the Government was induced to appoint a committee known as the “Committee on Ministers' Powers”. In the terms of reference the committee was directed “to consider the powers exercised by or under the direction of (or by persons or bodies appointed specially by) Ministers of the Crown by way of (a) delegated legislation and (b) judicial or quasi-judicial decision, and to report what safeguards are desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of the Law.” A large number of persons gave evidence before this committee and after due deliberations, the committee stated its conclusions. As observed by Robson at page 452:

“The methods of the Courts for dealing with the judicial review of administrative activities did not emerge unscathed from the investigation. The committee criticised the procedure by way of the ancient writs of certiorari, prohibition and mandamus as archaic, cumbrous and inelastic; and they recommended the introduction of a simpler, cheaper and quicker procedure: in short, of one more suited to modern needs. The report was, nevertheless, exceedingly superficial on the subject of judicial review and touched very lightly, if at all, on the main problems arising in this sphere.”

128. It was evidently as a result of the criticism of the committee of the procedure by way of writs that they were abolished by Administration of Justice (Miscellaneous Provisions) Act, 1938, and replaced by a system of orders. The relevant provisions of that Act are as follows:

“7.(1) The prerogative writs of mandamus, prohibition and certiorari shall no longer be issued by the High Court.

(2) In any case where the High Court would, but for the provisions of the last foregoing sub-section, have had jurisdiction to order the issue of a writ of mandamus requiring any act to be done, or any rit of prohibition prohibiting any proceedings or matter, or a writ of certiorari removing any proceedings or matter into the High Court or any division thereof for any purpose, the Court may make an order requiring the act to be done, or prohibiting or removing the proceedings or matter, as the case may be.

(3) The said orders shall be called respectively an order of mandamus, an order of prohibition and an order of certiorari.”

129. I have reproduced them here because I would presently compare them with the provisions of Article 226 of the Constitution. Dissatisfaction was expressed even regarding this legislative reform on the ground that it did not go far enough. Lord Justice Denning was one of those who criticised the existing methods in his Hamlyn lectures. He said, ‘Just as the pick and shovel are no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by a new and up-to-date machinery, by declarations, injunctions and actions for negligence.’ See Robson, page 453.

130. Thus, in England also, the procedure for issuing of orders in the nature of ‘mandamus, certiorari’ & c., is not regarded as sufficient to enable the supplicant to obtain adequate redress of his grievance. I take it that this criticism as well as the history of the old prerogative writs must have been before the Drafting Committee of the Constituent Assembly when it drew up Article 226 of the Constitution. It is evidently because of this that the Committee did not rest content with conferring powers on the High Courts (and the Supreme Court) to issue writs in the nature of the ancient prerogative writs, but thought it fit to empower the High Courts to issue writs generally and also to issue orders and directions. This is a substantial advance on the provisions of Section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938. In another direction also there is an advance on the provisions of Section 7 of the British Act. Under that section no order can issue to the Crown (i.e Government); whereas under Article 226 of the Constitution it can issue to Government also. Finally Article 226 makes it clear that the powers conferred by it on the High Courts are for enforcement of Fundamental Rights and also for any other purpose. Here, too, there is an advance on the corresponding provision of Section 7 of the British Act.

131. It would thus seem that the Drafting Committee not only found that the limitations inherent in the ancient prerogative writs to be irksome but that they regarded it necessary to confer unlimited powers on the High Court, so that the duty of protection of the fundamental rights and other legal rights of citizens could or be performed efficiently and adequately. When so high a duty is cast on a High Court, it cannot be supposed that it was within the contemplation of Constituent Assembly that the due and adequate discharge of the duty should be lidble to be thwarted by obstacles in the shape of technicalities. On the other hand, the presumption must be that all the power requisite for the performance of the duty was intended to be conferred. The Constituent Assembly having adopted a provision couched in the widest possible terms must, therefore, be deemed to have conferred plenary powers on the High Court for doing justice as occasion demanded.

132. What are next to be considered are certain decisions of the Supreme Court. The first of these is — ‘Bharat Bank Ltd., Delhi v. Employees of Bharat Bank Ltd., Delhi’, AIR 1950 SC 188. In that case their Lordships stated that a writ of ‘certiorari’ is of a limited character and that beyond quashing an order of an inferior tribunal it could direct nothing. I may, however, point out that their Lordships were there dealing with an appeal from an order passed by the High Court in the exercise of to its powers under Section 45 of the Specific Relief Act, while in the present case we are dealing with a matter under Article 226 of the Constitution, which is much wider in its terms than Section 45 of the Specific Relief Act.

133. Then comes the first decision of their Lordships under the new Constitution, — ‘Rashid Ahmed v. Municipal Board, Kairana., Kairana’, AIR 1950 SC 163. In that case their Lordships were considering the scope of Article 32 of 4 the Constitution. While dealing with the article, they said that the powers given to the Supreme Court under Article 32 are much wider & are not confined to issuing prerogative writs only. It was contended before their Lordships that the petitioner before them had adequate remedy by way of appeal and that, therefore, their Lordships could not grant any writ in the nature of the prerogative writ of ‘mandamus’ or ‘certiorari’. Their Lordships did not accept the contention, and after quashing the order of the inferior tribunal which was challenged before them, issued a definite direction to the tribunal as to what was to be done thereafter. The powers conferred on High Courts under Article 226 are of the same nature as those conferred on the Supreme Court under Article 32. This decision thus affords ample support to the view expressed by me.

134. Then again, in — ‘Charanjit Lal v. Union of India’, AIR 1951 SC 41 their Lordships have gone to the length of holding that the failure of a party to frame a proper prayer cannot be allowed to stand in his way and that the Court has power, and will exercise that power in proper cases, to grant appropriate relief to a party if that party is fully entitled to it. It would seem that this decision also affords indirect support to the view taken in Manohar's case.

135. There are two more decisions of the Supreme Court to which reference was made during arguments. They are — ‘Veerappa v. Raman & Raman Ltd.’, AIR 1952 SC 192 and — ‘Parry & Co. Ltd. v. C.E Association’, AIR 1952 SC 179. ‘Veerappa's case’ was decided on 17-3-1952 while that of Parry's on 10-4-1952. As pointed out by Hemeon J. in his opinion, four of the learned Judges who were parties to ‘Rashid Ahmed's case’, (AIR 1950 SC 163) were among those who dealt with ‘Veerappa's case’. No attempt to distinguish ‘Rashid's case’ was made nor was it even referred to in the judgment. Their Lordships observed that it was unnecessary for the disposal of the appeal before them to consider and decide on the exact scope and extent of the jurisdiction of the High Court under Article 226. Later they, however, observed:

“However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.”

136. This means that the jurisdiction of the High Court is supervisory and not that it has no power to make a direction or an order after quashing the decision of an inferior tribunal. Indeed, this point was not before their Lordships at all. It seems to me, therefore, that the decision does not preclude us from holding that a direction can be issued to an inferior tribunal or an order of its own substituted by the High Court for that of the inferior tribunal.

137. ‘Parry's case’, (1952 SCJ 275) is a decision of three Judges of the Supreme Court. All of them were parties to the decision in ‘Rashid Ahmed's case’, (AIR 1950 SC 163), but made no reference to it in their decision in this case. While holding that the High Court is not justified in issuing a writ of ‘certiorari’ to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous, they did not hold that the High Court is precluded from issuing a suitable direction or order whenever the interests of justice so require. This decision also does not come in the way of our holding that our powers are not limited to issuing writs only.

138. It was suggested in the course of arguments that if the High Court brought before it the records of an inferior Court for quashing its order, it exercises its powers in the matter of issuing a writ of ‘certiorari’ and that its powers were, therefore, confined only to doing that which could be done in England in a similar proceeding and that it was not open to the High Court to make a direction or order in addition. In other words, the argument is that after an order of an inferior tribunal was quashed the High Court had no power to issue a writ, order or direction in addition. There is nothing in Article 226 of the Constitution which limits the powers of the High Court to giving only one kind of relief. Indeed, that is what follows from the decisions of the Supreme Court in ‘Rashid's case’ and — ‘Charanjit Lal's case’, (AIR 1951 SC 41).

139. Finally, I would refer to an argument, which was advanced before us, that where the law makes a decision of any tribunal conclusive, this Court has no power to interfere with its decision. I have considered this argument last because it does not strictly arise in the present case, as both my Lord the Chief Justice and myself were agreed that this is a case in which it is open to us to interfere and that we must interfere here. At the same time, the argument having been advanced needs to be noticed. The argument is evidently based upon English decisions as well as upon some decisions in India before the Constitution. The position in India has undergone a marked change alter the commencement of the Constitution. The citizens did not have any guaranteed rights before the Constitution came into force, nor were constitutional remedies available to them to enforce their legal rights.

140. Article 13(1) of the Constitution provides that all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of Part HI, shall, to the extent of such inconsistency, be void. Part III deals with fundamental rights. Therefore, all existing laws must be deemed to be subject to the provisions of Part III and if any provision in an existing law is inconsistent with the fundamental rights, that provision has become void. It follows from this that where a law makes a provision which is inconsistent with the fundamental rights of citizens or abridges any other legal right and also provides that the decision as to that right arrived at by a tribunal created by that law to be final, the provision regarding finality will be deemed to be void. Further, Article 226 of the Constitution which confers constitutional remedies is over and above the ordinary law because it is contained in the supreme law of the land. No Act of the Parliament or of a State Legislature can limit or fetter the power conferred by Article 226. The position is different in England, because the British Parliament, being supreme, can give finality to the decision of a tribunal and take away the powers of the High Court to issue orders in the nature of ‘mandamus, certiorari’ or prohibition. Even then it has been held by the Courts in England that the King's Bench Division retains powers to enquire whether an inferior tribunal has acted within its jurisdiction or not: see — ‘Colonial Bank of Australasia v. Willan’, 5 PC 417. I am, therefore, of opinion that the decisions in India prior to the commencement of the Constitution and the decisions from. English Courts on this question are of little value in considering the matter now before us.

141. No doubt, while exercising powers under Article 226 of the Constitution, various High Courts in India have chosen to place restrictions on their powers because they do not wish that the powers conferred on them by the article should be treated at the option of the supplicant as an alternative remedy provided by the general law or to one provided by a special law and also because they appreciate the difficulty that would be created if the exercise of these powers came into conflict with those of an authority created by the Constitution itself. During the short space of 2½ years in which Article 226 has been resorted to by the various High Courts in India, several principles which govern the issue of writs in England have been kept in view by the Judges in India, and some of them have been applied. At the same time, the High Courts have been careful not to regard themselves as concluded by English precedents. It seems to me that the principles and practices of the Courts in England which are based upon natural justice or upon the grounds of expediency (e.g in order not to oust the jurisdiction of an ordinary tribunal or of a special tribunal created by a statute, or in order to avoid a conflict of jurisdiction with an authority created by the Constitution) should be followed. Where, however, a certain practice is being followed and principle adhered to by the Courts in England for historical reasons or for reasons peculiarly connected with the English legal system, the Courts in India should not follow that practice or adopt that principle.

142. In conclusion, I would say that upon the material on record the petitioner is entitled to the permission which he has asked for. It will be nothing more than blind adherence to the English practice if we were merely to quash the order of the Additional Deputy Commissioner and that of the Rent Controller and leave the matter there. All that remains to be done is to grant permission to the petitioner; either we ourselves grant that permission to the petitioner, or we send back the case to the Rent Controller and require him to accord that permission to him. There is no point in sending back the case to the Rent Controller for according permission to the petitioner because granting the permission being merely consequential we can do that ourselves. I would, therefore, accord the requisite permission to the petitioner to serve notice on respondent 2 to terminate his tenancy. I would also order that the costs of this petition and those incurred in the tribunal below be borne by respondent 2. Counsel's fee Rs. 250/-.

Deo, J.:— This petition came up for hearing before the Chief Justice and Mudholkar J. They agreed that the order of the Rent Controller refusing to grant permission to the landlord to determine the tenancy and the order of the Additional Deputy Commissioner affirming it must be quashed and that on the finding of fact reached by the Rent Controller he was bound to grant the permission. They agreed that these decisions are of judicial tribunals. They, however, differed as to the form of the final order to be passed. As nothing remained to be done by the Rent Controller except to grant permission to the landlord which that officer was bound to grant on the facts found by him in view of the mandatory provisions of cl. 13, Central Provinces and Berar Letting of Houses and Rent Control Order Mudholkar J. proposed that the orders be quashed and requisite permission be granted to the petitioner while the learned Chief Justice was of the view that the High Court has no jurisdiction to pass such an order and it must rest content with quashing the orders of these tribunals. This, according to him, is the scope of a writ of ‘certiorari’. It is said that only this writ can be issued under Article 226 of the Constitution to remove the order of a tribunal acting judicially or quasi-judicially to the High Court to quash it and that the High Court cannot pass any order or issue any directions. The learned Chief Justice adhered to the view taken by him and Hidayatullah J. in — ‘Sagatmal v. Additional Deputy Commissioner, Nagpur’, ILR (1951) Nag 769 decided on 18-4-1951. The earlier decision in — ‘Chhaganlal v. Additional Deputy Commissioner’, Misc Petn No. 37 of 1950 (Nag), where Kaushalendra Rao J. and I had passed an order directing the Rent Controller to grant permission, was not followed on the ground that we had not made any reference to any precedent where a similar course was followed. ‘Danteshwari Transport Co. v. R.T.A, C.P Region Nagpur’, Mis. Petn. No. 5 of 1950 (Nag) (By Kaushalendra Rao, Sen and Deo, JJ.); — ‘Manohar v. Additional Deputy Commissioner, Yeotmal’, ILR (1951) Nag 791 (By Mangalmurti and Mudholkar, JJ.), and a host of other precedents of this Court as well as of other High Courts which have taken a similar view of the powers of the High Court under Article 226, were evidently not brought to the notice of the learned Chief Justice and Hidayatullah J. in ‘Sagatmal's case’.

143. This course adopted by the Full Bench in — ‘Danteshwari Transport Co.'s case’, (Mis. Petn. No. 5 of 1950 Nag) which is the first decision of this Court under Article 226, was followed in ‘Chhaganlal's case’, (Mis. Petn. No. 37 of 1950 Nag). The Regional Transport Authority restored the permits to the respondent which were cancelled by the Appellate Tribunal and cancelled those of the petitioner in direct violation of, the order of that Tribunal. The order restoring the permits was, therefore, quashed and the authority was directed to restore the permits of the petitioner. If the Full Bench had rested content with merely quashing the order of the Authority, the order would have been of little assistance to the petitioner. In order that he should immediately be restored to the right to which he was entitled, it was necessary to make a direction to restore permits to him. Cases have occurred subsequently in which the Regional Transport Authorities have not passed appropriate orders consequent on the decisions of this Court quashing their orders; and the aggrieved parties had again to move this Court for necessary orders and directions. In dealing with the powers of the High Court under Article 226 the Full Bench stated:

“The power of this Court to issue a writ in the nature of ‘mandamus’ is included in the power to issue directions, orders, or writs which power cannot by any means be said to be limited to the issue of only the well-known prerogative writs under common law. The primary object of Article 22(1) is to afford effective protection to the rights of the subject where recourse to ordinary law may prove inadequate for the purpose. If the ends of justice so require, the Courts have power not only to order the undoing of what was done in contravention of law but to direct the performance of what ought to have been done in the first instance.”

144. One of the objects of this power is to ensure speedy justice. This view was adopted in a number of cases of this Court.

145. In ‘Sagatmal's case’, (ILR (1951) Nag 769) the landlord was occupying a rented house for his ‘bona fide’ residence and was Carrying on a ‘bona fide’ business of his own in another rented house in Nagpur. He sought permission under cl. 13(3)(vi)(a), (b) and (c) of the Order. The Rent Controller found that the landlord was residing ‘bona fide’ in a rented house and was carrying on ‘bona fide’ a cloth business of his own in another rented premises. He refused permission on the ground that the landlord did not need his own house for ‘bona fide’ residence on medical grounds and that he could carry on the business in the rented premises. The Additional Deputy Commissioner confirmed this order on the ground that it must be proved that “the need to occupy the house was genuine and ‘bona fide’.” As appears from the report these authorities decided the case under sub-cl. (b). In view of the fact that the conditions required by sub-cls. (vi)(a) and (c) were satisfied, the Rent Controller was bound to grant permission to give notice in view of the express words of sub-cl. (3) of cl. 13. On the requisite facts being found, he had no jurisdiction to refuse permission. Holding that these speaking orders were bad, the learned Judges quashed them; but they did not pass the consequential order granting permission or giving a direction to the Rent Controller to grant the permission, on the ground that

“the function of this Court in its extraordinary jurisdiction under Article 226 of the Constitution must be confined to pointing out the true legal position and either quashing the orders or letting those orders stand, as the case may be.”

146. On receipt of this order the Rent Controller did not grant the permission as he was bound to do, but stayed the proceedings for a month on the representation of the tenant that he intended to appeal to the Supreme Court and obtain an order for stay of the proceedings. The landlord had, therefore, to move this Court for a direction to the Rent Controller to forthwith grant the permission. The Division Bench (Hidayatullah and Rao, JJ.) allowed this application and issued directions for immediate disposal of the matter. (‘Sagatmal v. Rent Controller, Nagpur’, Mis. Petn. No. 1626 of 1951 (Nag)). The learned Judges did not issue a direction to the Rent Controller to grant permission apparently in view of the earlier pronouncement. In my view the jurisdiction under Article 226 is not advisory, i.e, to advise authorities on the correct interpretation of law and its powers, but to pass such orders as the justice of the case may demand. Justice delayed is justice denied. This is what happened in Sagatmal's case. It was eminently desirable in that case to grant the permission or at any rate to direct the Rent Controller to grant the permission. In — ‘Rashid Ahmad v. Municipal Board, Kairana’, AIR 1950 SC 163, their Lordships did not stop with merely pointing out the true legal position but issued directions to the respondent to withdraw the prosecution pending against the petitioner and not to prohibit him from carrying on his trade. Without these directions the decision of the Supreme Court would have been of little help to the petitioner.

147. In — ‘Jethmal v. The Additional Deputy Commissioner, Arvi’, Mis. Petn. No. 1719 of 1951 (Nag), the learned Chief Justice and Mudholkar, J. felt the necessity of passing consequential orders to effectuate their decision. There a house was allotted by the Additional Deputy Commissioner without making an inquiry into the contention of the landlord that he needed the house, and the allottee was placed in possession. The order was quashed and the Additional Deputy Commissioner was ordered to restitute possession of the premises to the landlord within 15 days from the receipt of the order of the Court.

148. In — ‘Rohini Sharan v. Govindprasad’, Mis. Petn. No. 14 of 1952 (Nag) (By C.J and Mudholkar, J.) the landlord had obtained a decree of a civil Court for ejectment. The judgment-debtor gave an intimation to the Additional Deputy Commissioner that he would be vacating the houses by a certain date and that Officer allotted the house to a stranger. The allotment was made in contravention of cl. 22, Rent Control Order, and without any notice to the landlord. When the landlord learnt of this order, he moved that officer to cancel the allotment as he required the house for his ‘bona fide’ residence. Without any inquiry that application was rejected. Holding that the Additional Deputy Commissioner must exercise his power judicially after hearing the parties concerned, the order of allotment was quashed. The Additional Deputy Commissioner was ordered to evict the allottee and the landlord was allowed to execute his decree. In similar circumstances Mangalmurti and Mudholkar, JJ. not only quashed the order and gave directions to rehear the matter but gave directions as to the nature of order to be passed if it is found that the landlord needs the premises for his business. ‘Sundersingh v. Additional Deputy Commissioner, Nagpur’, Misc. Petn. No. 6 of 1951 (Nag).

149. In — ‘Badridas v. State of Madhya Pradesh’, Mis. Petn. No. 61 of 1950 (Nag) Hidayatullah, Mangalmurti and Mudholkar, JJ. set aside the order of the Additional Deputy Commissioner because he allotted the house without any enquiry and directed him to place the petitioner landlord in possession. In — ‘V.M Deshmukh v. K.M Kothari’, ILR (1951) Nag 808 decided on 28-2-51 by Mangalmurti and Mudholkar JJ., the Additional Deputy Commissioner had affirmed the order of the Rent Controller refusing permission on the ground that the facts necessary to attract cl. 13(3)(vi)(c) were not established. It appears from the report that no evidence was adduced by the landlord before the Rent Controller. Holding that the landlord clearly made out a case under cl. 13(3)(vi)(c), House Rent Control Order, the learned Judges quashed the orders and directed the Rent Controller to grant the permission. They evidently relied on the affidavits filed in this Court, though the order does not expressly say so.

150. In — ‘Shamrao v. Municipal Committee, Nagpur’, Misc. Petn. No. 102 of 1950 (Nag) the order of the office-in-charge which was confirmed in second appeal by the Additional Deputy Commissioner, Nagpur, was quashed and the Municipal Committee was directed to reinstate the petitioner. In — ‘New Motor Transport Co., Drug v. Regional Transport Authority, Raipur’, ILR (1952) Nag 69, decided by Rao, J. and me the order of the Regional Transport Authority was quashed as it was contrary to the decision of the appellate authority, and directions were issued to effectuate the decision of the appellate authority by cancelling the permits granted to the respondent with a further direction not to grant any further permit, even a temporary one, pending the disposal of the application for grant of a regular permit.

151. In — ‘Badamibai v. P.A Tobin’, 1952 Nag LJ 426 the Division Bench (Hidayatullah and Choudhuri, JJ.) held that the evidence of the engineer of the landlord “was prima facie conclusive for the application Cl. 13(3)(vii) of the Order” though the Additional Deputy Commissioner had not accepted this evidence and had relied on another engineer who had given contrary evidence. There is thus an interference with a finding of fact. The Division Bench did not stop with indicating the true interpretation of law but decided what the order of the Rent Controller should be, not on the view of facts taken by the tribunals but on the facts found by them. Nothing remained to be done. The Division Bench might as well have granted the permission.

152. In — ‘Ramnath v. Extra Assistant Commissioner, Jabalpur’, AIR 1952 Nag 313 the Chief Justice and Mudholkar, J. did not pass an order granting permission because the record of the case and the order of the Rent Controller were not before them.

153. Similar decisions of this Court, where orders and directions, necessary to effectuate the decisions of this Court and for the effective protection of the rights of aggrieved parties, were made, can be multiplied. The ‘ratio’ of these decisions is that the High Court has jurisdiction not only to quash the offers of a judicial or quasi-judicial tribunal but to pass appropriate orders and give directions to effectuate its decision. In view of the clear pronouncement of the Full Bench in — ‘Danteshwari Transport Co.'s case’, (Mis. Petn. No. 5 of 1950 Nag), it was probably not thought necessary in every case to enter into an elaborate discussion of the power of the High Court under Article 226 and to cite earlier decisions. The decisions do not lose their binding character for want of such discussion or citations.

154. The scope of this reference is limited. It has been accepted that the Rent Controller and the Additional Deputy Commissioner exercise judicial functions and are judicial tribunals, that the impugned orders must be quashed and that the facts necessary to entitle the petitioner to permission to determine the tenancy have been found by these tribunals. The only question for decision by this Full Bench is whether the High Court has jurisdiction to pass the consequential order granting permission to the landlord to determine the tenancy or to give direction to the Rent Controller to grant the necessary permission or whether the jurisdiction ends with quashing the order and advising the tribunal by pointing out the correct legal position. I do not, therefore, propose to enlarge the scope of the reference by examining whether the Rent Controller and the Additional Deputy Commissioner are judicial tribunals and whether their orders are liable to be quashed by writs of certiorari. It is also not necessary to discuss the scope of Article 227 as reliance was not placed by the petitioner on that Article.

155. We have to interpret the Constitution. As stated by Gwyer C.J in — ‘In re C.P & Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938’, AIR 1939 FC 1 at p. 5, a constitution is a “living and organic thing”. Our Constitution is the expression of the will of the people to secure to all the citizens justice, liberty, equality and fraternity. We have, therefore, to interpret the Constitution so as to give effect to this will of the people.

156. The object or purpose of construction or interpretation is to ascertain the intention of the Constitution makers and to make it effective. “The intention of the Legislature as embodied in the Statute constitutes the law thereof……… The word ‘intent’ includes two concepts—that of purpose and that of meaning…………Legislative purpose is the reason why the particular enactment was passed by the Legislature in seeking to ascertain the legislative purpose the Court will resort, among other things, to the circumstances existing at the time of the law's enactment, to the necessity for the law and the evil intended to be cured by it, to the intended remedy, to the law prior to the new enactment and to the consequences of the construction urged.’ — Crawford's Construction of Statutes, 1st edition, pages 246-247. No doubt, the intention of the law-makers must primarily be ascertained from the language used in the statute. If the meaning of the language is plain, there is really no need for construction. The intention is clearly expressed by the language of the statute. That is what is understood as literal interpretation. But effect must be given to every part of the statute which is being subjected to the process of construction, to every section, sentence, clause, phrase, or word; and if the language is in any way ambiguous, recognised rules of construction have to be invoked to ascertain the legislative meaning.

157. As observed by Lord Atkinson, delivering the opinion of the Board in — ‘Harihar Banerji v. Ram-Sashi Roy’, 45 Ind App 222 (PC) an instrument should be construed not with the desire to find fault in it which would render it defective, but should be construed ‘ut res magis valeat quam pereat’. A liberal construction should be put upon a written instrument and such meaning should be given to it as will carry out and effectuate to the fullest extent the intention of the parties. This rule holds good in the construction of the language of a statute.

158. A constitution is not to be construed in a narrow and pedantic sense. A broad and liberal spirit should inspire those whose duty it is to interpret it. The words of the Article 226 are very general. Therefore a construction most beneficial to the widest possible amplitude of the powers of the High Court must be adopted. ‘British Coal Corporation v. The King’, 1935 AC 500, — ‘D. Parraju v. General Manager, B.N Railway’, AIR 1952 Cal 610. In — ‘Edward v. Attorney General for Canada’, (1930) AC 124 at p. 136 their Lordships of the Privy Council stated;

“Their Lordships do not conceive it to be the duty of the Board…………….to cut down the provisions of the Act by a narrow and technical construction.”

159. Article 225 of the Constitution preserves all the powers possessed by the High Courts at the date of the commencement of the Constitution until affected by any law passed by a competent legislature. Such legislative power is to be found in Entries 79, 95 of List I, 65 of List II and 46 of List III. The Article does not confer on the High Court any power or jurisdiction which it did not possess on that date. The extraordinary power or jurisdiction, i.e a power or jurisdiction in addition to that exercised before the Constitution, is conferred by Articles 226 and partly by 227. As already stated, it is not necessary to examine for the purpose of this case the scope of Article 227. What we have to consider is whether the High Court would exceed its jurisdiction under Article 226 in passing consequential orders or giving directions to effectuate its decisions under that Article.

160. Under Article 32(2) the Supreme Court, has power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by part III of the Constitution, Article 139 provides that the Parliament may by law confer on the Supreme Court these powers for any purposes other than those mentioned in Article 32(2). Notwithstanding anything in Article 32, Article 226 confers all these powers on every High Court not only for the enforcement of any of the rights conferred by Part III, but “for any other purpose.”

161. We have, therefore, to first ascertain the legislative meaning and, if necessary, the legislative purpose to ascertain the legislative intent of the scope of Article 226. In the draft Constitution the words were—

“…………..to issue directions or orders in the nature of the writ of habeas corpus, mandamus, prohibition, quo warranto and certiorari.”

162. Under this Article as finally adopted the High Court has power to issue “directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, or any of them”. The drafts of Article 32 and Article 139 were also amended by the addition of the words “or writs including writs”. The words “or any of them” were also added to Articles 139 and 226. The learned Additional Government Pleader wants us to construe this power as power to issue only the specified common law writs with all their limitations as indicated in the several decisions on which he relied. According to him the added words are a surplusage and should be ignored because Article 226 confers on the High Court the power of King's Bench to issue the specified writs. Although a statute is capable of saying the same thing twice over without adding anything to what has been said once, the repetition is not to be presumed as is done by the learned counsel. He has not referred to any rule of construction enabling us to ignore these words deliberately added to the draft of the Constitution.

163. In — ‘Harcourt v. Fox’, (1693) 1 Shaw 506 at p. 532 Lord Holt said:

“I think we should be very bold men, when we are entrusted with the interpretation of Acts of Parliament, to reject any words that are sensible in the Act.”

164. A statute is never supposed to use words without a meaning. “To reject words as insensible is the ‘ultima ratio’ when an absurdity would follow from giving effect to the words of an enactment as they stand”: — ‘R. v. St. John Westgate, Burial Board’, (1862) 2 B & S 703 at p. 706. As stated in Craies Statute Law, 5th edition, at page 99 “when the legislature enacts a particular phrase, the presumption is that it is saying something which has not been said immediately before.” It is, therefore, not permissible to omit the added words unless reading them in the Article would lead to absurdity.

165. As stated by Lord Watson in — ‘Dilworth v. New-Zealand Commissioner of Stamps’ (1899) AC 99 at pp. 105-106:

“The word ‘include’ is very generally used in interpretation clause in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things, as they signify according to their natural import but also those things which the interpretation clause declares that they shall include.”

166. The word “includes” has an extending force and does not limit the meaning of the term: — ‘Nasibun v. Preosunker Ghose’, 8 Cal 534. In my opinion it would not be correct to translate it as “means”, though such construction may be permissible in certain circumstances. The words “or writs including writs” were added to express the power as widely as possible. In the absence of these words it was possible to put a construction restrictive of the power of the High Court to issue directions or orders in the nature of the specified writs. The expression “in the nature of” indicates that a High Court can issue writs which are similar to the specified writs. These words do not qualify directions and orders as contended by the learned counsel. On a plain reading of the Article, I am of the view that the High Court has power to issue orders, directions, writs in the nature of the specified writs and other writs. There is no room for the contention that the High Court can issue only the specified writs and that the power is subject to all the limitations to which King's Bench was subject in issuing prerogative writs.

167. By issue of a writ of certiorari a superior Court requires an inferior Court to send up to it some proceedings therein pending or records of some cause. The power to issue this writ is exercised not only in England but in the Dominions and in the United States of America; but the scope of this power is not uniform everywhere. In the United States, for example, the Supreme Court and the Circuit Courts of Appeal have jurisdiction to issue writs of certiorari as an appellate proceeding. The Federal Court can issue writs only as an auxiliary process to obtain further information with respect to some matter already before it: — ‘United States v. Young’, (1876) 94 US 258. The purposes for which writ can be issued are stated in S. 237 of the Judicial Code of that country. As stated in Willis's Constitutional Law at page 969, this power can be exercised for different purposes. In — ‘Re Lewis’, (1893) 150 US 150, it was held that the Supreme Court cannot by writ of certiorari review the judicial decision of a Federal Circuit Court which acted within its legitimate jurisdiction or require the Court by writ of mandamus to decide the matter before it in a particular way. ‘in the matter of Elisha T. Loring, (1877) 94 US 418 it was held that a writ of mandamus may in a proper case issue to a Circuit Court to decide a matter if it refuses to decide it, but cannot be used to control its decision that can be done by a writ of error in the final order if passed. This was followed in — ‘Ex Parte Nebraska’, (1908) 209 US 436 where it was held that the mandamus cannot be used as a substitute for an appeal or writ of error to correct the error, if any, committed by Federal Circuit Court in denying a motion to remand the case. It will be noticed that in all these cases an appeal was tenable against the final decision.

168. In Canada the Supreme Court of Alberta declined to quash a proceeding of an appellate Court, who heard a criminal appeal without notice to the prosecutor and acquitted the accused and refused to issue a mandamus to hear the appeal according to law on the ground that “it would in effect be a direction as to the manner or particular method in which he should conduct the trial.” Evidently a further appeal was not provided against the order of the appellate Court. ‘Rex v. Wong Tun’, (1916) 28 Dom LR 698 (Can). ‘The Queen v. Adamson’, (1875) 1 QBD 201 was relied on. It was there stated that “in the absence of express statutory provision the Queen's Bench had no appellate jurisdiction to review the decision of magistrates who have once heard a case and decided it in a matter within their jurisdiction”. This extreme view is not adhered to in Canada and is not accepted in this country. It is not accepted even in England. In — ‘The Queen v. Adamson’, Cockburn C.J examined the evidence and the circumstances of the case and observing that “the magistrates must have acted upon a consideration of something extraneous and extra-judicial which ought not to have affected their decision” the Chief Justice held that it amounted to declining the jurisdiction. The proceedings were quashed. Referring to a number of latest decisions it was held in — ‘John East Iron Works, Ltd. v. Labour Relations Board’, (1949) 3 Dom LR 51 (Can) that the writ can issue to correct an error of law apparent on the face of the record. The cases of — ‘Nat Bell Liquors Ltd.’, 65 Dom LR 1 (Can) and — ‘Colonial Bank of Australasia v. Willan’, (1874) LR 5 PC 417 were distinguished on the ground that in those cases there was no error apparent on the face of the record.

169. In England the writ of certiorari is of two kinds statutory, and common law. The latter is therefore of a supervisory nature. The common law writ of certiorari, now issued under the power conferred by the Administration of Justice Act of 1938, is issued when the power of certiorari is taken away by an Act of Parliament. It is issued when a tribunal acts without jurisdiction, in excess of jurisdiction or does not act in conformity with law. The meaning of “jurisdiction” has been made elastic in England and it now includes even an “error of law”.

170. The view that certiorari went only to the defect of jurisdiction was not accepted in — ‘R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw’, (1951) 1 All ER 268 Lord Goddard C.J observed:

“The object of the old writs of certiorari which has now been replaced by an order of certiorari was to bring up into this Court the proceedings and order which had been made in the lower Court in order that it should be examined…………In former days the procedure was by a writ of error and where a writ of error was granted the whole record was brought to this Court………………and the Court examined the record and only decided for the plaintiff in error if error appeared on the record. For that reason a writ of error was an unsatisfactory remedy in a criminal case………..

Many statutes have taken away certiorari in respect of the matters with which those statutes have dealt, but that never debarred the Court from granting certiorari if it was a question of jurisdiction……………The taking away of certiorari by statute no doubt prevented the Court from inquiring into what I may call the merits of the determination, but it did not prevent the Court from inquiring whether or not the inferior Court had any jurisdiction to make the order.” (p. 273).

171. The decision of the tribunal was a speaking order. They had given their findings of fact and their view of the law. The Divisional Court found the view of law to be erroneous. ‘Racecourse Betting Control Board v. Secretary of State for Air’, (1944) 1 All ER 60 taking the restrictive view that the tribunal having acted with jurisdiction the writ of certiorari cannot issue to correct error of law, was overruled. The learned Chief Justice observed:

“I think that the decision to which we are now coming will be very beneficial because so many tribunals are now set up, all of whom, I am certain, desire to do their duty in the best possible way, but they are often given very difficult sets of regulations and statutes to construe. It must be for their benefit and I have no doubt they will welcome it, that this Court should be able to give them guidance. We can give guidance to them if they make their orders speaking orders, so that this Court can then deal with them if they are brought before the Court on certiorari” (p. 278).

172. This decision was affirmed by the Court of Appeal in — ‘Northumberland Compensation Appeal Tribunal v. R. ex parte Shaw’, (1952) 1 All ER 122 Denning L.J made the following weighty observations:

“Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law, and several learned judges have said as much. But the Lord Chief Justice has, in the present case, restored certiorari to its rightful position and shown that it can be used to correct errors of law which appear on the face of the record, even though they do not go to jurisdiction. I have looked into the history of the matter, and find that the old cases fully support all that the Lord Chief Justice says. Until about one hundred years ago, certiorari was regularly used to correct errors of law on the face of the record. It is only within the last century that it has fallen into disuse, and that is only because there has, until recently, been little reason for its exercise. Now, with the advent of many new tribunals and the plain need for supervision over them, recourse must once again be had to this well-tried means of control.” (p. 128).

173. It is no doubt stated there that:

“the King's Bench does not substitute its own views for those of the tribunal as a Court of Appeal would do. It leaves it to the tribunal to hear the case again, and in a proper case may command it to do so.” (p. 127)

174. This does not mean that the King's Bench has no power to do so. That power was not exercised apparently because the King's Bench could not effectively discharge its duty for want of full record. Or it may be, the King's Bench had placed this limitation on its power.

175. The State of law in England regarding the issue of writs is due to the peculiar circumstances of the country. There the Parliament is supreme and the High Court has no jurisdiction to question a law passed by the Parliament. If any Act takes away the right of review by the High Court, that Court cannot review the decision of the statutory tribunals except to the limited extent indicated by their Lordships in — ‘Colonial Bank of Australasia v. Robert Willan’, (1875) LR 5 PC 417 (cit. infra). In India the Parliament is not supreme. The powers of the Parliament and the State Legislatures are limited by the provisions of Article 245(1) of the Constitution. These Legislatures have no power to abridge the power conferred on a High Court under Article 226. Even if a right of appeal is taken away by an Act of Parliament or of a State Legislature, a suitor is not without remedy. He can invoke the extraordinary powers of the High Court under Article 226 or of the Supreme Court when his fundamental rights are affected. This power is in addition to the power of a civil Court to examine the decisions of these tribunals as stated by their Lordships of the Privy Council in — ‘Secy. of State v. Mask and Co.’, AIR 1940 PC 105.

176. Before the Constitution the administrative tribunals which had to act judicially or quasi-judicially were not amenable to the supervision of the High Courts. The jurisdiction of the High Courts to question any judgment of an inferior Court, subject to its appellate jurisdiction, otherwise than by way of appeal or revision was expressly taken away by Section 224(2) of the Government of India Act, 1935. If, therefore, an appeal or revision was barred by any Act the High Court had no power of interference, however erroneous the decision may be. The Presidency High Courts had no doubt limited power to issue the specified writs but that power could be taken away by statute.

177. When a statute provides that the decision of the statutory tribunal is final, it only means that it is not liable to a challenge in a civil Court for error of decision. As Lord Thankerton stated in — ‘Secretary of State v. Mask and Co.’, AIR 1940 PC 105 (Cit sup. at p. 110).

“It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.”

178. Civil Courts have interfered with orders of tribunals whenever they acted without jurisdiction, or in excess of jurisdiction, or whenever they did not act in conformity with the appropriate provisions of the relevant Act or with the fundamental principles of judicial procedure. This Court has exercised this power on numerous occasions in declaring invalid the orders of the Debt Conciliation Boards and Debt Relief Courts and in refusing to give effect to them.

179. In—‘Shiva Nathaji v. Joma Kashinath’, 7 Bom 341 relied on by the learned Additional Government Pleader, West J. in interpreting S. 622 of the CPC of 1882 (S. 115 of the present Code) stated:

“By the Code of Civil Procedure, as it now stands, the High Court cannot only check an excess of jurisdiction, but may compel the exercise of jurisdiction, and control its exercise so as to correct illegality or material irregularity. These are the powers formerly vested in the Court of Queen's Bench, reduced now, where certiorari has been withdrawn to the limits already indicated: — ‘The Colonial Bank of Australasia v. Willan’, (1874) LR 5 PC 437.”

180. The powers of certiorari as defined in Willan's case are thus narrower than the powers under Section 115 of the CPC. The powers as defined in that section can be exercised under Article 227 of the Constitution in the case of tribunals to which S. 115 does not apply. West J. has referred to a number of English decisions to show that the exercise of the power of certiorari has not been quite uniform.

181. Extensive resort to controls during the war, the large powers which were delegated by recent legislations to the judicial and quasi-judicial tribunals, administrative bodies and the Executive, frequently resulted in denial of justice to the citizens, in the absence of a power of judicial superintendence by the High Courts. Their rights to freedom, property, business etc. were at the mercy of these tribunals and bodies which did not frequently discharge their duties in accordance with law and quite often abused the power vested in them. Judicial decisions were frequently influenced by the Executive. This condition of the country continued after the Independence. Graphic description is to be found in an article on ‘Judicial Control of Administrative Act in India’ by Shri Harkose of the Faculty of Law, Lucknow University, published at page 9 of the January issue of the Supreme Court Journal of 1952:

“Today in India the need for judicial control is perhaps at the maximum. The infant Republic is born amidst manifold maladies. It has a legacy of centuries of foreign hegemony. The political party that has captured power both in the Centre and in the states was geared to fight foreign domination. It has thus a steamroller organization and the freedom of opinion of the individual party member cannot be effectively exercised in the Legislature. At the same time there is no organised and effective opposition against the majority party. Even though a Federal Republican form of Government with a written — elaborately written — Constitution has been adopted, the English Parliamentary Executive was preferred to the United States Presidential Non-parliamentary Executive. This brings the Legislature under the control of the Executive and with the clear majority that the party has, the desire for any compromise of its views by the influence of the view of the ‘other side’ which is the secret for the success of democracy, becomes less pronounced. All these factors tend to increase the power of the Executive. Meanwhile a phenomenal population seething in poverty has a temper which respects neither law nor authority. According to some observers the pace of legislation is too fast for the nation to assimilate it properly. The aims underlying certain legislation have not secured general approval. It has been remarked that a ‘nation cannot be reformed by laws’. If under these conditions, administrative tribunals are handed over final powers to deal out ‘justice’, the faith that the people have in the conception of justice is likely to be lost. The only agency to keep up the balance is the judiciary. It is in times like these that the majesty of the law should become manifest and point out to the Executive what is its rightful domain and prevent it from overstepping it.”

182. To remedy somewhat similar state of affairs in England eminent jurists in that country are advocating vesting of larger powers in the High Court to prevent abuse of power by the Executive. Sir Alfred Denning in his Hamlyn Trust Lectures on “Freedom under the Law” delivered in 1949, observed:

“Looking at these cases is it not clear what the remedy is? It is to bring the cases where there is no appeal to a Superior Court into line with those cases where there is an appeal. There should be a Superior Court, which is able, not only to see that the new tribunals keep within their jurisdiction, but, also to review their decisions on points of law and in proper cases, on questions of fact.” (P. 95)

183. He further observed:

“Wide discretion there must be in all administrative activity, but it should be discretion defined in terms which can be measured by legal standards lest cases of manifest injustice go unheeded and unpunished.”

184. He summed up the position in England in these words:

“It should be clearly understood that, although the High Court has some degree of control over the tribunals, it is not such as to enable it to correct many of the faults or injustice which may arise, unless the Statute gives an appeal. The High Court proceeds on the footing that if Parliament has thought fit to entrust jurisdiction on all these new matters to new tribunals without any appeal from them, then, so long as the tribunals do not exceed or abuse their jurisdiction, the High Court should not interfere with them. If a tribunal should come to a wrong conclusion on the facts, or, indeed, if there is no evidence on which it could come to its conclusion the High Court cannot interfere: nor, if the tribunal comes to a wrong conclusion in point of law, can the High Court interfere. So long as the tribunal keeps within its jurisdiction, and is not guilty of any flagrantly unjust procedure, its decision is final both on facts and law.”

185. The learned author cited some striking instances to demonstrate the necessity of interference by superior Courts with the decisions of the tribunals. He concluded his lectures with these observations:

“Reviewing the position generally, the Chief point which emerges is that we have not yet settled the principles upon which to control the new powers of the executive. No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do; and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us, what is the remedy? Our procedure for securing our personal freedom is efficient, but our procedure for preventing the abuse of power is not. Just as the pick and shovel is not longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up to date machinery, by declarations, injunctions and actions for negligence; and in judicial matters, by compulsory powers to order a case stated. This is not a task for Parliament. Our representatives; they cannot control the day to day activities of the many who administer the manifold activities of the State: nor can they award damages to those who are injured by any abuses. The Courts must do this. Of all the great tasks that lie ahead, this is the greatest. Properly exercised the new powers of the executive lead to the welfare state: but abused they lead to the totalitarian state. None such must ever be allowed in this country.”

186. Similar views were expressed by Professor E.C.S Wade in his article on “The Courts and the Administrative Process” published in 63 Law Quarterly Review at page 164.

187. With this rich experience is it not quite natural that our Constitution-makers felt the necessity of conferring almost unlimited powers on the Superior Courts in this country to be exercised as the exigencies of a case may demand particularly because the powers of tribunals' are generally exercised in this country by persons who are not trained in the interpretation of legal provisions and whose decisions are usually moulded by the policy and directives of the Executive? Our Constitution has secured the citizens fundamental rights and a rule of law. These rights cannot be adequately safeguarded without vesting somewhat undefined powers in the superior Courts of this country. The legislative purpose is thus to confer as wide powers as possible on the Supreme Court and the High Courts.

188. Although the powers conferred by Article 226 are thus expressed in very wide terms, the English forms and procedure and limitations of prerogative writs continue to dominate judicial ideas in this country, even though in England itself these forms and procedure have been abolished by the Administration of Justice (Miscellaneous Provisions) Act, 1938 (Geo VI ch 63) and although the original view of the scope of the prerogative writs has undergone a radical change. In the absence of uniformity in the scope of the writs of certiorari in the several countries it would be incorrect to contend that the power conferred by Article 226 is subject to the limitations of the common law writs of certiorari in England. The following observations of Mukherjea J. made in delivering the leading judgment in — ‘Charanjit Lal v. Union of India’, AIR 1951 SC 41 at p. 53 Col. 2 are frequently lost sight of.

“Article 32 of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for.”

189. In — ‘Rashid Ahmad v. Municipal Board, Kairana’, 1950 SCR 566 (cit. sup.) their Lordships of the Supreme Court have held that the powers under Article 32 are much wider and are not confined to issuing the specific writs as understood in England. These observations apply with equal force to the powers under Article 226. At this stage, I should like to repeat the following warning of Mukherjea J. of the Calcutta High Court:

“The craze for American precedents can soon become a snare. A blind and uncritical adherence to American precedents must be avoided or else there will soon be a perverted American Constitution operating in this land under the delusive garb of the Indian Constitution.” ‘Shri Mahadeb Jiew v. Dr. B.B Sen’, 55 Cal WN 453.

190. This warning applies equally to a blind and uncritical adherence to English precedents. Any attempt to whittle down these powers by importing the limitations of the prerogative writs is not to effectuate the intention of the constitution-makers. To contend that the High Court can interfere under Article 226 only if the tribunal has acted without jurisdiction or in excess of jurisdiction is to deny the existence of the extraordinary power.

191. The learned Additional Government Pleader submitted that to pass a consequential order to effectuate the decision of this Court, as proposed by Mudholkar J., is to exercise appellate power in the case of a tribunal which has to act judicially or quasi-judicially. Not only that power is not expressly conferred on the High Court but it is expressly taken away by Section 7 of the C.P and Berar Regulation of Letting of Accommodation Act (11 of 1946) read with Cl. 21(3), House Rent Control Order, 1949, and that the grant or refusal to grant permission to the landlord, being in exercise of discretion of the Rent Controller, the High Court cannot substitute its own discretion in its place. In my view, these submissions are without any substance. On the facts found by the Rent Controller in the instant case, he was bound to grant permission to the landlord in view of the mandatory provision of Cl. 13. There is no discretion left if the facts attracting Cl. 13 are established. This is, therefore, not a case of interfering with the discretion of the Rent Controller.

192. It was not the submission of Shri Phadke for the petitioner that a person aggrieved by an order of the person or authority mentioned in Article 226 has a right of appeal to the High Court. His submission, as I understood him, was that though the suitor has no such right, the High Court has power in suitable cases to correct errors of law as well as of fact, and its power is not confined to correct only errors of jurisdiction as contended by the other side. As stated by their Lordships of the Supreme Court in — ‘Ebrahim Aboobakar v. Custodian General’, AIR 1952 SC 319 at pp. 332-333.

“Ordinarily, a court of” appeal has not only jurisdiction to determine the soundness of the decision of the inferior Court as a Court of error, but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties. Such jurisdiction is inherent in its very constitution as a Court of appeal.”

193. It cannot be disputed that the High Court can under this Article not only interfere to correct errors of jurisdiction but can also interfere to correct errors of law. The latter is a function of an appellate Court. Section 100 of the CPC gives such power to the High Court and if Cl. (c) of S. 100(1) is attracted to interfere with the findings of fact. It is possible for the High Court to exercise some appellate power under this Article without being an appellate Court as ordinarily understood.

194. As already stated, even before the Constitution a civil Court had power to interfere with the orders of the tribunals. Article 226 must, therefore, be construed to confer on the High Court a wider power than that possessed by a civil Court. Though these powers are expressed in wide terms, it can easily be conceded that they do not supplant the ordinary powers of Courts. A suitor may not, therefore, be ordinarily allowed to seek redress under this Article, if the ordinary remedy provided to him by law is equally adequate, efficacious and prompt. When the ordinary remedies are not adequate, efficacious and prompt, the High Court will not hesitate to exercise the extra-ordinary power to remedy injustice even though another remedy may be available to the suitor. There are numerous decisions all over the country of the exercise of such power. It cannot be limited or circumscribed by legislative will except to the extent permitted by the Constitution and any such will which is inconsistent or repugnant to the powers conferred by the Article will have to be ignored. Since the power is extraordinary, it is necessary for a High Court to impose upon itself certain limitations in exercise of that power; but in imposing those limitations it cannot ignore the necessity to redress injustice. In — ‘Sheoshankar v. The State’, ILR (1951) Nag 646 (FB) the majority was of the view that unlike Article 227 there is no limitation on the power of the High Court under Article 226 (p. 703); Hidayatullah J. stated at page 667 that “some limitations must be placed by the High Court on its powers”, which by necessary implication means that the Article does not place any limitation but it is the High Court who may place limitations on that power or its efficient exercise.

195. It is argued that in no circumstances can the High Court interfere with the finding of fact of the tribunal even though there is no evidence in support of it or it has misdirected itself in considering it. Reliance was placed on — ‘King v. Nat Bell Liquors, Ltd.’, (1922) 2 AC 128. Let us take the case where the Rent Controller believes a witness because he is, say, a Congressman and disbelieves another because he is a Communist though the evidence of the latter accords with the documentary evidence and the circumstances of the case while that of the former does not, and the Additional Deputy Commissioner confirmed this finding. It is evidently a miscarriage of justice. There is no other remedy available to the aggrieved suitor except under Article 226. Are we going to exercise the power under Article 226 or are we going to be helpless spectators of this miscarriage of justice by a tribunal within our territorial jurisdiction? Must we put limitations on our power to prevent us from remedying this travesty of justice merely because of the real or supposed limitations of the prerogative writs in England? The opinion of Denning L.J in — ‘Northumberland Compensation Appeal Tribunal v. R. ex parte Shaw’, (1952-1 All ER 122) (cit. sup.) and his conclusions in his lectures on “Freedom under the Law” are very instructive. His views are entitled to great respect and we cannot belittle them because we do not agree with him. He demonstrates necessity of having an effective control on the administrative officers and tribunals to prevent abuse of power. The necessity is all the greater in our country. In — ‘N.S. Sattar Sahib v. State Of Madras’, (1952-7 Dom LR (Mad) 65) (cit. infra) a petition of certain congress workers which could not be legally taken into consideration was utilized by the Government in an appellate proceeding. The High Court quashed the order on the ground that the petition must have influenced the decision of the Government. This is undoubtedly an interference with the finding of tact.

196. As held by Rao J. and me in — ‘Bulakhichand v. A.D.C Nagpur’, Mis Petn No. 1606 of 1951 (Nag) the power under this Article is not an appellate power. If the authority has arrived at the decision on facts in conformity with law and without violating the fundamentals of judicial procedure, the High Court will not interfere merely because it takes the contrary view of the evidence. That is different from contending that the High Court has no power under Article 226 to interfere even though there is no evidence or the authority has misdirected itself in considering it.

197. The rules of this Court require the petitioner to file an affidavit in support of his contentions and the tribunal and other respondents are required to file returns supported by affidavits. This additional material is required to complete the record if it is in any way incomplete. Though the Rent Controller and the Additional Deputy Commissioner are not required by any express provision of law to make complete records, their records are usually complete as in the case of an ordinary civil Court; and if there are any omissions they can be supplied by the affidavits filed in this Court. It is, therefore, possible for us to examine the decision in all its aspects. This is not possible in England for want of full records. After 1938 the High Court in England can issue an order for ‘certiorari’ for removing any proceeding or a matter to the High Court and has power to issue a ‘mandamus’ requiring an act to be done, but no return can be made to any such order. The order is final subject to the right to appeal therefrom. Thus the old jurisdiction continued though the forms and procedure were modified.

198. It will thus be seen that there is no accepted practice or fixed scope of the writ of ‘certiorari’ or mandamus in the jurisprudence of those countries where the writs styled ‘certiorari’ or ‘mandamus’ obtain. There is a gradual tendency to enlarge the power of the King's Bench to interfere by these writs. Denning L.J has advocated the necessity of interference on facts in suitable cases. The observations of this great jurist and Judge cannot be dismissed as the outburst of a lecturer. The views expressed in Hamlyn Lectures are also to be found in his judicial pronouncements. We have not yet settled the principles of the exercise of this extraordinary jurisdiction under Article 226 though we have been freely referring to the English precedents in trying to formulate these principles. The English and American precedents may afford us valuable guidance in settling these principles, but they do not control the interpretation of a written Constitution and are not of much assistance in ascertaining the legislative intent of the Constitution-makers. In my view, it is proper to interpret Article 226 as conferring power of the widest amplitude on the High Courts; and this power must be invoked to redress wrongs and for passing suitable orders to effectuate the decisions of this Court.

199. The next contention is that a writ of mandamus cannot issue to supplement a writ of ‘certiorari’, on the ground that a ‘mandamus’ does not command the doing of a particular judicial act as the judicial act by its very nature is discretionary. Reliance is placed on several passages from the Law of High Prerogative Writ of Mandamus by Tapping, published in 1848. This contention is not borne out by the subsequent English decisions. As Black-stone describes it, ‘mandamus’ is a

“command in King's name from the King's Bench and directed to any person, corporation, or inferior Court of jurisdiction, requiring them to do some particular thing therein specified which pertains to their duty or office.” (Commentary, Vol. 3, p. 110).

200. In — ‘the Queen v. The Bishop of London’, (1889) 23 QBD 414 it is stated that a writ of ‘mandamus’ is

“a high prerogative writ invented for the purpose of supplying defects of justice and by Magna Charta the Crown is bound neither to deny justice to any one, nor to delay anybody in obtaining justice.”

201. It is not necessary to examine this contention in the instant case as the judicial power of granting permission is not discretionary because the conditions laid down in cl. 13, Rent Control Order, are satisfied. The Rent Controller's refusal is being set aside on ‘certiorari’. It may be that a ‘mandamus’ should not issue to the Rent Controller to come to a particular finding of fact as was done in ‘Badamibai's case’, (1952 Nag LJ 426) (cited supra) but this question does not arise here.

202. In — ‘Rex v. Justices of Kingston, Ex parte Davey’, (1902) 86 LT 589 it was held that the Justices had no jurisdiction to refuse renewal of licence if there was 90 valid objection in accordance with the licensing Act. There a ‘mandamus’ was issued ordering the Justices to hear and determine the case according to law as they had not decided whether the petitioner was entitled to renewal.

203. In — ‘Rex v. Dodds’, (1905) 2 KB 40 the Justices had directed renewal of a licence but subject to certain conditions which they had no jurisdiction to impose. Imposing of such conditions amounted to refusal to renew the licence. The order imposing conditions was held to be without jurisdiction. As nothing further remained for the Justices to do but to renew the licence, the Court of Appeal directed them to hand over the renewed license to the petitioner. The action of the Justices in renewing licence was held to be judicial. In similar circumstances Lord Coleridge, C.J stated in — ‘Queen v. Licensing Justices of Merthyr Tydvil’, (1894) 14 QB 584—

“It is immaterial whether the mandamus directs the Justices to hear and determine afresh the application for a renewal of the licence or directs them in terms to grant a renewal of the licence, because when the matter comes before the Justices again they can only deal with it according to the provisions of the statute; and if no objection was made to the renewal at the first general annual licensing meeting, the Justices may find that they had no jurisdiction to adjourn the hearing of the application but were bound to grant a renewal.”

204. It was held that the Justices had no jurisdiction to adjourn the hearing of the application as there was no valid objection to the renewal. It was further held that the Queen's Bench had jurisdiction to difect the authority to do what it should have done in the first instance. It is true that the direction to renew the licence was not issued but that was because the petitioner had prayed only for rehearing of her case. Not one English precedent was brought to our notice in which it was held that the order proposed by Mudholkar J. in the circumstances of this case was in excess of the jurisdiction of the King's Bench.

205. Now I will refer to some of the decisions relied on by the Additional Government Pleader. Other decisions have been examined by Hemeon J. and Mudholkar J.

206. ‘Veerappa v. Raman and Raman Ltd.’, AIR 1952 SC 192 is not helpful in deciding the point under examination. The facts of that case material to appreciate the decisions of the High Court and the Supreme Court briefly are:

(a) The application made by V. on 14-10-1949 for renewal of his permanent permits was treated as an application for new permits. The procedure prescribed by the Motor Vehicles Act was followed and 5 permanent permits were granted to V. for two years on 3-1-1950. There was no objection by R. On 18-11-1949 R. had applied to the authority to have the unexpired permanent permits of V. cancelled and to grant permits to it. Without any notice to V. and without giving him an opportunity to show cause, his permits granted on 3-1-1950 were cancelled on 19-1-1950. This order was set aside by the appellate authority on 3-3-1950 and the appellate order was confirmed by the Government on 7-11-1950.

(b) On an application under Article 226 made by R. on 4-12-1950 to quash the orders dated 19-1-1950, 3-3-1950 and 7-11-1950 (19-1-1950 appears to be a mistake for 3-1-1950) and for issue of a writ of ‘mandamus’ or other appropriate directions to “transfer, issue or grant five ‘pakka’ permits” to it, the impugned orders dated 3-1-1950, 3-3-1950 and 7-11-1950 were quashed and the Regional Transport Authority was directed

“to grant to the petitioner permits in respect of the five buses in respect of which a joint application was made originally by the petitioner and Balasubramania Pillai and that in case the above buses have been condemned the petitioner shall be at liberty to provide substitutes within such times as may be prescribed by the authorities.”

(c) Their Lordships of the Supreme Court held that the High Court fell into error in its construction of the provisions of the Motor Vehicles Act and the law regarding the rights of parties in such matters. Their Lordships indicated the several requirements of law for the grant of permits, which permits are, to a certain extent, in the discretion of the authorities who are entrusted with the power to grant them; and pointed out that R. to whom the High Court had ordered the issue of permits did not fulfill those requirements. R. did not hold permits from the French authorities which were indispensable to run the bus service in question.

(d) Assuming for a moment that the order dated 3-1-1950 was bad in law, all that the High Court at that stage could do was to quash the order and leave the Regional Transport Authority to hear together and decide the applications dated 14-10-1949 and 18-11-1949 on merits, on following the procedure prescribed by the Motor Vehicles Act. Not only the parties before the High Court but other operators who would choose to intervene in the proceedings were entitled to be heard. It was not a case of merely deciding the rights of the parties, and of passing consequential orders to effectuate the decision. The suitability of the vehicles of the claimants and their capacity to operate the service to the advantage of the public had to be considered. Without further enquiry and without hearing V. in answer to the application dated 18-11-1949 the authorities could not determine the person to whom the necessary permits could be granted. With the material before them the High Court could not decide all these questions even as a Court of appeal. The directions were, therefore, as their Lordships of the Supreme Court characterised, in excess of jurisdiction. That does not mean that in no case has the High Court any jurisdiction to issue appropriate directions to effectuate its decisions under Article 226. Their Lordships of the Supreme Court have refrained from discussing the scope of Article 226. No doubt in para 20 of the judgment their Lordships have indicated some of the circumstances under which the High Court could interfere under Article 226. These observations

“It seems to us that it (jurisdiction) is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made”

207. Must be read as applicable to the facts of that particular case. In — ‘Quinn v. Leathern’, (1901) AC 495 Lord Halsbury lays down the following propositions at page 506:

“Every judgment must be read applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.”

208. It may be noted that their Lordships of the Supreme Court have assumed that the authorities under the Motor Vehicles Act are administrative bodies or tribunals. The common characteristic of such tribunals is that their ultimate decision may be determined not merely by the application of legal principles to ascertain facts but by considerations of policy also though they have to act judicially or quasi-judicially in their enquiry. If the High Court quashes the orders of such authorities, the directions to them would be to decide the controversy in conformity with the provisions of the Act. ‘Veerappa's’ case is thus distinguishable and inapplicable to the present controversy.

209. ‘Parry and Co. v. Commercial Employees Association, Madras, AIR 1952 SC 179 is not an authority for the proposition that a High Court cannot exercise “appellate powers” under Article 226. Their Lordships were not deciding a case under that Article and were not defining its scope. It was conceded before them that the prerogative writ of ‘certiorari’ is not available to quash a decision passed with jurisdiction, on the mere ground that such decision is erroneous, and that it can issue only on the ground of either a manifest defect of jurisdiction in the tribunal that made the order or of a manifest fraud in procuring it. The question whether the statute has taken away ‘certiorari was not examined. The concession was made apparently in view of the decision in — ‘Colonial Bank of Australasia v. Robert Willan’, (1874) LR 5 PC 417 referred to by their Lordships of the Supreme Court. There the power of the Supreme Court to issue the writ was taken away by a statute. Their Lordships set aside in appeal the order of the Madras High Court, passed on 1-4-1949 partly setting aside the decision of the Labour Tribunal on the ground that it was based on an erroneous view of law though it was passed with jurisdiction. This is a departure from ‘Willan's case’.

210. ‘Janardhan Reddy v. State of Hyderabad’, AIR 1951 SC 217 has no bearing on the matter under consideration. The applications under Article 32 were dismissed on the ground that the convictions of the petitioners which had acquired finality in the fullest sense of the term when the Constitution came into force could not be challenged under Article 32 as that Article was not retrospective in operation. Their Lordships held that even if a tribunal has no jurisdiction its decision must be challenged in an appeal when an appeal lies. Their Lordships were thus not defining the scope of Article 226 or even of Article 32. I fail to see how this decision can be invoked in answer to the contention of the petitioner.

211. In — ‘Janab N.S Sattar v. State of Madras’, (1952) 7 Dom LR (Mad) 65 Subharao J. quashed by a writ of ‘certiorari’ the order of the Madras Government, passed in appeal, on the ground that the petition of certain Congress workers, which could not be legally taken into consideration, must have influenced the decision of the Government. No consequential order was passed. The Government was expected to rehear the case and decide it according to law; but as the Government would not discharge its duty the successful party had to move the High Court to issue a writ of ‘mandamus’ to rehear the case. The writ was not granted as the Advocate General gave an undertaking that the Government would rehear the case according to law. This decision demonstrates the necessity of issuing orders and directions on quashing the order on ‘certiorari’. In this case no final order could be passed by the High Court as the tribunal had not reached any findings of face uninfluenced by extraneous considerations. The case was rightly sent back for rehearing. This is what a High Court does in second appeals. This decision cannot be used as an authority for the proposition that a ‘mandamus’ cannot issue to a judicial tribunal and that the jurisdiction of the High Court ends with advising the tribunal on the state of law and quashing its orders. I, therefore, agree with Hemeon and Mudholkar JJ. that the High Court has power to pass an order granting permission to the petitioner or to direct the Rent Controller to grant the permission and that in the instant case an order granting permission should be passed.

A/R.G.D

212. Order accordingly.