Falshaw, J. - (1.) This judgment will deal with Civil Writs Nos. 270 of 1950, 640 of 1950, 1 of 1951, 7 of 1951, 16 of 1951, 91 and 103 of 1951, and 768 and 772 of 1950, in all of which similar points of law of great importance have arisen. One of them Civil Miscellaneous No. 270 of 1950 relates to an order passed in December 1947, by the Deputy Commissioner, Karnal, under Section 2 of the Punjab Requisitioning of Immovable property (Temporary Powers) Act, 1947, and the other cases relate to orders passed under the East Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1948, which superseded and repealed the Act of 1947 in November 1948. All of the applications are filed under Article 226 of the Constitution for the issue of one or other of the writs mentioned in that Article.
(2.) At the outset a point raised by the learned Advocate-General, which arises in all the cases regarding the Jurisdiction of this Court to entertain petitions for the writs mentioned in Article 228, requires to be dealt with. The objection of the learned Advocate-General is an ingenious one and, as will be seen, has round some support in s decided case, but in spite of this it appears to me to be without any force, and to be quite opposed to what appears to be the quite clear and unambiguous wording of Article 226, Clause (1) of which reada: "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 these 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 or any other purpose." Article 32 reads: Part III -- Fundamental Bights) "(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part Is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs. Including writs in the nature of 'habeas corpus,' 'mandamus', prohibition, 'quo warranto1, and 'certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by Clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its Jurisdiction all or any of the powers exerciseable by the Supreme Court under Clause (2). (4) The right guaranteed by this Article shall not be suspended except as otherwise provided for by this Constitution." The argument of the learned Advocate-General was based on the supposition that with regard to the High Court, or any other Courts, there exists a rigid line of distinction between "power" and "Jurisdiction" and that In fact the two are in separate watertight compartments, and in order to reinforce his argument he relied on the provisions of Article 225, which, according to the marginal Insertion, relates to the Jurisdiction of existing High Courts. This Article reads: "Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the Jurisdiction of, and the law administered In, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution." The Article also contains a proviso removing certain restrictions with which we' are not concerned in the present argument. It was contended that although Article 226 gives all the High, Courts the power to issue directions, orders, and writs, no High Court has jurisdiction to do so unless it is also given the necessary jurisdiction by legislation either under Clause (3) of Article 32 or otherwise. It is argued that Articles 225 and 226 are to be read together and that under Article 225 the jurisdiction of existing High Courts is confined to the jurisdiction enjoyed by them before the Constitution came into force, except as laid down in the proviso. This jurisdiction did not include the Issue of writs, which therefore has to be otherwise provided. There is no doubt that contentions similar to those advanced by the learned Advocate General were accepted by a majority of three Judges of the Madhya Bharat High Court in the case of 'Anant Bhaskar v. State', AIR (37) 1950 Madh B 60 (PB). In that case it was held by Kaul, C. J., and Shinde, J., who accepted the existence of a rigid distinction between power and Jurisdiction, that, unlike Article 32 of the Constitution, Article 226 does not provide for any remedy which apart from the existing lav could be avail-able to a person for the enforcement of any of the rights dealt with in Part III of Constitution, and that Article 226 must be read subject to Article 32 (3), and Article 226 only mentions come of the powers which, if law made by Parliament or other appropriate Legislature so provides may be exercised by the High Courts under circumstances and conditions prescribed by such law, but, so long as this is not done, the powers conferred by Article 226 must remain ineffective except in so far as they can be exercised under the existing law. I am glad to say, however that Mehta, J, dissented from this view and held that Article 226 is self-contained, providing for the extent of Jurisdiction to be exercised by High Courts, and also indicating the relief which can be granted by the-issue of appropriate writs.
(3.) In repelling the contention of the learned Advocate-General the first point I would make is that in my opinion there is no warrant whatsoever for the argument that Article 226 is to be read with, and subject to, Article 225. This section of the Constitution, Chapter V of Part VI, deals with the High Courts in the states and deals with many miscellaneous matters in connection herewith. The subject-matter of meet of these Articles is clearly quite self-contained, as can be seen from the subject dealt with in the Articles immediately preceding Nos. 225 and 330. Article 220 deals with the prohibition of practising: in Courts or before any authority by Judges. Article 221 deals with salaries etc., of Judges. Article 222 deals with the transfer of a Judge from one High Court to another. Article 223 deals with appointment of acting Chief Justices, Article 234 deals with the attendance of retired Judges at, sittings of High Courts. As I have already mentioned, the subject of Article 225 is jurisdiction of existing High Courts, and that of Article 226 powers of the High Courts to issue certain writs. One indication that two entirely separate matters are dealt with in these Articles is that Article 225 relates only to existing High Courts, whereas the most important words in Article 226 are 'Notwithstanding anything in Article 32 every High Court shall have power." These words alone are quite conclusive on the point that the power of High Courts to issue writs is not in any way governed by the provisions of Article 32 (3), which, in any case, does not even refer specifically to High Court, but seems to indicate that Parliament may give powers to issue writs, orders and directions even to subordinate Courts. When this fact was pointed out to learned Advocate-General and be was asked to say under which of the law-making powers contained in Second Schedule Parliament could give jurisdiction to High Courts to deal with writs and kindred matters under Article 226, all. he was able to do was to refer to Item No, 96 in the Union List which reads: "Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List." He was not, however, able to point out to the rest of the List any item in which writs and such matters were included. It would in fact appear that on the face of it the power to Issue writs and orders of alike nature was vested in the Supreme Court and all the High Courts by the Constitution itself, and it was only left to Parliament to extend any of these powers to subordinate Courts if considered desirable.;