Govinda Menon, J.-At the close of delivery of our judgment, the learned counsel for the petitioner submitted that in view of the circumstance that the application has been practically allowed, as in our opinion the detention of the petitioner under Madras Act XXIII of 1949 after the 26th January, 1950, was illegal, the State should be directed to pay the costs of this application. Arguments were heard as to the powers of this Court to award costs in matters like this and since the point raised is bereft of authority in the Indian Courts-at least, no Indian decision was brought to our notice, we reserved judgment on the question of costs alone.

Order 35, rule 5 of the Supreme Court Rules which came into operation on the 26th January, 1950, is to the following effect:

"In disposing of any such rule, the Court may in its discretion make such order for costs as it may consider just.‘‘

Rules 1 to 5 of Order 35 deal with applications in the nature of Habeas Corpus provided for under Article 32 of the Constitution of India and rules 6 to 10 deal with Mandamus, Prohibition, Certiorari, Quo warranto, etc., applications.. From this it is clear that the Supreme Court, when hearing an application under Article 3a has the power to make such orders as to costs as the Court thinks fit. So far as the Madras High Court is concerned, no such rule has yet been framed and in the absence of any such provision, the learned counsel for the petitioner lays emphasis on the inherent powers of the Court to award costs. In Sankaralinga Mudaliar v. Narayana Mudaliar1, a Full Bench had to consider whether the High Court has jurisdiction to grant costs in criminal cases except where the Code of Criminal Procedure makes express provision and the conclusion arrived at by the learned Judges was that it has no such jurisdiction. Relying upon the maxim expressio unius est exclusio alterius, Schwabe, C.J., in his judgment has noted the provisions of the Criminal Procedure Code where the power to award costs is expressly provided for and came to the conclusion that as the Code gives specific right of granting costs in certain instances, it excludes any other right of granting costs, though the learned Chief Justice, following the decision in Guardians of West Ham Union v. Churchwardens, etc., of St.Matthew, Bethnal Green1 and In re Bombay Civil Fund Act, 1882: Pringle v. Secretary of State for India2, was of the view that though a Court may have inherent power to grant costs such a power must always be restricted and limited to this; that if the power of granting costs in any kind of proceeding is provided for in some way by statute, the Court cannot, by invoking its inherent powers, extend the powers which have been granted to it by the statute. Coutts-Trotter, J., referred to the judgment of Hardwicke, L.C., in Corporation of Burford v. Lenthall3 and held that Courts of Equity in England always asserted their possession of such jurisdiction and constantly used it. But he also held that in England the common law Courts did not attempt to assert any such inherent jurisdiction, though the House of Lords in Guardians of West Ham Union v. Churchwardens, etc., of St. Matthew Bethnal Green1 held that the House has such power. Such being the case, if the present application was founded on section 491 of the Code of Criminal Procedure, this Court would have no power to award costs. But it is contended that since the application is under Article 226 of the Constitution of India which corresponds to Article 32 relating to the powers of the Supreme Court and since the Supreme Court has made rules investing the power to grant costs, this Court must also do likewise. It cannot be disputed that the High Court has power to frame rules to award costs in such matters. But the question is whether, without any such express, rule being framed after the coming into operation of the Constitution there is an inherent power vested in the High Court to act in that manner. Their Lord