NALLA KOYA v. ADMINISTRATOR, UNION TERRITORIES OF LACCADIVES ETC.
1967-10-05
M.S.MENON, P.GOVINDA NAIR
body1967
DigiLaw.ai
Judgment :- 1. This appeal is from an order of Justice Mathew dismissing O. P. No. 1636 of 1965. The prayer in the writ application is that "this court may be pleased to issue a writ of certiorari or other appropriate writ or order calling for the records and quash the impugned order Ext. P-8 dated 4-4-1965 passed by the 1st respondent Administrator." 2. The first respondent to the O. P. is the Administrator of the Union Territory of Laccadives, Minicoy and Amindivi Islands. He has powers by virtue of S.28 of the Laccadive Islands and Minicoy Regulations, 1912, to execute decrees passed by the Civil Court as envisaged by S.24 of the Act. It was pursuant to this power that the impugned order Ext. P-8 was passed by him. The O. P. was dismissed by the learned judge as he felt bound by the view which be considered has been expressed by the Supreme Court in a recent decision in Naresh v. State of Maharaslra reported in AIR. 1967 SC. 1. 3. The particular passage from the judgment relied on by the learned judge runs thus: "Whilst we are dealing with this aspect of the matter, we may incidentally refer to the relevant observations made by Halsbury on this point. 'In the case of judgments of inferior Courts of civil jurisdiction', says Halsbury in the footnote, "it has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp v. Balne.(1844), I Dow. & L. 885, at p. 887] inasmuch as an error did not lie upon that ground. But there appears to be no reported casein which the judgment of an inferior Court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground'. The ultimate proposition is set out in the terms: 'Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction'. These observations would indicate that in England the judicial orders passed by civil Courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari." It is contended before us that those observations are not binding on us. Counsel for the appellant has taken us in detail through the judgment in Naresh v. State of Maharashtra reported in 1967 SC.
Counsel for the appellant has taken us in detail through the judgment in Naresh v. State of Maharashtra reported in 1967 SC. I to make out that those observations are merely casual observations and cannot be taken to be the expressions of opinion of the Supreme Court even by way of obiter dictum. He also pointed out that the passage quoted from Halsbury's Laws of England and relied on by the Supreme Court has been stated in Halsbury's Laws of England Supplement 1965 to be incorrect. This passage, it is urged, had not been brought to the notice of the Supreme Court. 4. We shall deal with these aspects. Reading the judgment in its entirety we find it difficult to accept the contention that the observations made by the Supreme Court are merely casual observations which can be ignored by this Court. It forms part of the reasoning in the judgment and there seems to be an expression of opinion which we consider binding on us. 5. No doubt it is true that in Halsbury's Laws of Engl and, Supplement 1965 it is stated in Para.23; note (g) with reference to the passage relied on by the Supreme Court that "this is incorrect". Two decisions (R. . Judge Hurst, Ex parte Smith, (1960) 2 Q. B. 133), R. v. Judge Worthington-Evans, Exparte Madan, (1959) 2 Q. B. 145) have also been cited as authorities for the proposition that a writ will issue to a Civil Court. In R. v. Judge Hurst, Ex parte Smith, (1960) 2 Q. B. 133 the Queen's Bench issued a writ of certiorari to quash an order of the county court and in R. v. Judge Worthington-Evans, Ex parte Madan (1959) 2 Q. B. 145 the Court observed: "We are satisfied that in a proper case this Court has power by certiorari to bring up and quash the order of a county court judge made without jurisdiction." 6. Our attention has also been invited to a recent decision in Reg. v. Criminal Injuries Compensation Board, Ex parte Lain (1967) 3 W. L. R.348.
Our attention has also been invited to a recent decision in Reg. v. Criminal Injuries Compensation Board, Ex parte Lain (1967) 3 W. L. R.348. Lord Parker C. J. said: "Indeed, the writ of certiorari has issued not only to courts set up by statute but to courts whose authority is derived, inter alia, from the prerogative." In the same case Diplock L, J. said: "The earlier history of the writ of certiorari slows that it was issued to courts whose authority was derived from the prerogative, from Royal Charter, from franchise or custom as well as from Act of Parliament." 7. In the light of the above, it is clear that the submissions of counsel for the appellant on this point are well founded. Nevertheless we feel that this is a matter which can only be agitated before the Supreme Court in view of the expression of opinion by the Supreme Court in Para.63 of its judgment. The point made therein seems to be one of a string of reasons relied on by the Supreme Court for the proposition that a writ should not issue against a Civil Court, 8. We may in this connection refer to the judgment of the Chief Justice, Chagla in a decision of the Bombay High Court in Mohandas Issardas and others v. A. N. Sattanathan and others reported in 1955 Bombay 113. The Chief Justice observed: "It cannot be suggested that the doctrine of obiter dicta was so far extended as to make the Courts bound by any and every expression of opinion either of the Privy Council or of the Supreme Court whether the question did or did not arise for the determination of the higher judicial authority. Obiter dicta must lay down a rule. It is not sufficient that they should be merely dicta of a superior Court, but from the dicta one must be in a position to deduce a rule laid down by the higher authority." 9. We think that there is such a rule discernible from the dicta of the Supreme Court. 10. Counsel for the appellant has invited our attention to the decision of the Supreme Court in Premchand Garg and another v. Excise Commissioner, U. P. and others reported in AIR. 1963 SC. 996.
We think that there is such a rule discernible from the dicta of the Supreme Court. 10. Counsel for the appellant has invited our attention to the decision of the Supreme Court in Premchand Garg and another v. Excise Commissioner, U. P. and others reported in AIR. 1963 SC. 996. This decision has been noticed by the Supreme Court in Para.50 of the judgment in Naresh v. State of Maharashtra reported in 1967 SC. 1: "It would thus be seen that the main controversy in the case of Prem Chand Garg, (1963) Supp. (1) SCR 885: (AIR. 1963 SC. 996) (supra), centred round the question as to whether Art.145 conferred powers on this Court to make Rules though they may be inconsistent with the constitutional provisions prescribed by Part III. Once it was held that the powers under Art.142 had to be read subject not only to the fundamental rights, but to other binding statutory provisions, it became clear that the Rule which authorised the making of the impugned order was invalid. It was in that context that the validity of the order had to be incidentally examined. The petition was mads not to challenge the order as such, but to challenge the. validity of the Rule under which the order was made. Once the Rule was struck down as being invalid, the order passed under the said Rule had to be vacated. It is difficult to see how this decision can be pressed into service by Mr. Setaivad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself. What was held by this Court was that Rule made by it under its powers conferred by Art.145 which are legislative in character, was invalid; but that is quite another matter." The decision in Prem Chand Garg v. Excise Commissioner did not stand in the way of the Supreme Court taking the view it did. The view they took is that a writ could not be issued to a Civil Court. This was so held notwithstanding the decision in 1963 SC. 996.
The view they took is that a writ could not be issued to a Civil Court. This was so held notwithstanding the decision in 1963 SC. 996. We are therefore unable to take a different view and the prayer in the writ application which we already extracted indicates that the relief sought is to quash an order passed by the Administrator who is a Civil Court as stated in the Laccadive Islands and Minicoy Regulations, 1912. 11. Other points have been urged before us and some of them have been dealt with by the teamed judge in the order under appeal. In the view that we have taken the matter cannot be agitated in proceedings under Art.226 of the Constitution. So we express no opinion whatever on those points, some dealt with by the learned judge, and others taken for the first time before us. We dismiss this writ appeal but in the circumstances of the case without any order as to costs. Dismissed.