Judgement

Appeal (No. 74 of 1945) from an order of the High Court (July 19, 1944).

The following facts are taken from the judgment of the Judicial Committee. On June 9, 1944, His Excellency the Governor of Bengal, purporting to act under the powers conferred on him by r. 51F of the defence of India Rules, made an order superseding

Law Rep. 74 Ind. App. 120 ( 1946- 1947) Moulvi Hamid Hassan Nomani V. Banwarilal Roy 79

the Commissioners of the Howrah Municipality for a period of one year, with effect from June 9, 1944, and directing that the appellant should exercise and perform all the powers and duties which might be exercised, or performed, by or on behalf of the Chairman and the Commissioners during the period of supersession.

On June 14, 1944, the High Court, on the application of the respondents, issued a rule nisi calling on the appellant to show cause why an information in the nature of quo warranto should not be exhibited against him as to by what authority he is " exercising and performing or claiming to exercise or perform the powers and duties which may be performed or exercised " by the Chairman and the Commissioners of the Howrah " Municipality.” By the said order of July 19, 1944, the High Court made absolute the rule nisi. On December 14, 1944, the High Court ordered that the appellants appeal to His Majesty in Council against the said Order of July 19, 1944, be admitted.

1947. Jan. 21, 22, 29. Sir Walter Monckton K.C. and B. MacKenna for the appellant. The main point is whether the High Court has special jurisdiction in the case of Government servants transcending the local limits of the High Courts ordinary original civil jurisdiction. The High Court has held that it does possess this special jurisdiction as a legacy from the Supreme Court of Calcutta which was abolished in 1861. The submission resisting the order absolute was that the municipality of Howrah was outside the local limits of the High Courts jurisdiction, that the appellant, a deputy magistrate, was not resident within those limits, and that therefore the High Court was without jurisdiction. The High Court said that the old Supreme Court had a special personal jurisdiction transcending the limits of its local jurisdiction in the case of servants of the East India Company; that the High Court had succeeded to that special personal jurisdiction, and that servants of the Government were for the purposes of this jurisdiction to. be treated as if they were servants of the old company. Finally, it was said that this jurisdiction enabled the High Court to issue the writ of quo warranto in the case of an office outside its local limits on the ground that the claimant to the office was a servant of Government. It is submitted, first, that the High Court has no special personal jurisdiction in the case of Government servants, and secondly, that the old Supreme Court would not have had jurisdiction to do what the High Court has done in this case—to issue the writ of quo warranto in the case of an office outside the local limits of the High Court even where the claimant had been a servant of the old company. The High Court inherited the jurisdiction from the old Supreme Court of Calcutta under the Indian High Courts Act, 1861, ss. 8, 9, 11. After 1861 there was a reduction, not an increase, in the jurisdiction. The questions are, first, what powers did the Supreme Court possess in respect of the issue of the writ, and secondly, are there any provisions in the letters patent granted under the Act of 1861 which restrict the jurisdiction of the High Court within narrower limits than that of the Supreme Court. As to the first point, the Supreme Courts charter of 1774 was granted under the provisions of the Regulating Act of 1773 ss. 13, 14 and 15; so far as the Supreme Court had power to issue writs of quo warranto or habeas corpus it came from cl. 4 of the charter and nowhere else. That clause was the same as cl. 8 of the Madras Supreme Court Charter, which was