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Report No. 58

Supreme Court's view

5.30. As the Supreme Court of India1 has observed, the jurisdiction which the High Court exercises under Article 226 is extraordinary original jurisdiction, and it is well settled that Article 226 confers a discretionary power on the High Courts to issue appropriate orders and writs. This jurisdiction is extraordinary or special original jurisdiction, as distant from the ordinary civil jurisdiction conferred by the Letters Patent.2

1. State of Uttar Pradesh v. Vijay Anand Maharaj, AIR 1963 SC 946.

2. See discussion in Venkatasubbaya v. District Collector AIR 1960 AP 381 (384, 385).

5.31. There are dicta in a case decided by the Privy Council1 to the effect that the power to issue a writ of Que Warranto is within the ordinary original jurisdiction of the High Court.2 The decision relates to the words "ordinary" and "extraordinary" as used in the Letters Patent of the Calcutta High Court, 1865.

1. Hamid Hasan v. Banwari Lal, AIR 1947 PC 90 (93) (Sir John Beaumount).

2. For case-law, see Stayanarayana Murthi v. 1.T.A.T., AIR 1957 Andh 123 (125), para. 3

5.32. We thought that having regard to this special jurisdiction, it may be1 desirable to consider the points2 raised in Q. 6. Before we proceed to a consideration of the question, the present position on the subject may be examined.

1. For history of the Jurisdiction to issue writs.

See-(a) Ryots of Garabandha v. Zamindar of Parlakimedi, AIR 1943 PC 164;

(b) Venkataratnam v. Secretary of State, AIR 1930 Mad 896 (901);

(c) AIR 1962 All 551 (557, 558);

(d) T.C. Basappa v. S. Nagga, AIR 1954 SC 440 (443), para. 5.

2. Para. 5.29, supra.

Structure and Jurisdiction of the Higher Judiciary Back

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