Jugal Kishore Narayan, J.

1. This is an application for leave to appeal to the Supreme Court from a decision of this Court in Misc. Judicial Case No. 79 of 1951 which arose out of an application under Article 226 of the Constitution of India. The petitioner is the son of the late Maharaja Bahadur Guru Mahadvashram Prasad Sahi who was the last holder of the impartible estate commonly and compendiously known as the Hathwa Raj. On the 4th May, 1940, the late Maharaja Bahadur had made an application under section 6 (e) of the Court of Wards Act for being declared a disqualified proprietor, and on the 11th of May, 1940, the Court of Wards made a declaration that the Maharaja Bahadur was a disqualified proprietor, and on the same date a notification was issued that the Court of Wards had decided to take charge of the property of the late Maharaja Bahadur, and a direction was made that possession be taken. The present petitioner who is the eldest son of the late Maharaja Bahadur and his brother Brajeshwar Prasad Sahi were admittedly minors when the estate was taken by the Court of Wards. Acting under section 7 of the Act the Court of Wards purported to take charge of the person and the property of the two minor sons of the Maharaja Bahadur. The Maharaja Bahadur died on the 20th of January, 1951, and after his death the petitioner made an application to this Court under Article 226 of the Constitution, and his prayer was that a writ in the nature of mandamus or a direction or order be issued upon the Board of Revenue, Bihar, Patna, to withdraw from the management of the estate and to forbear from retaining charge of the estate, and a direction or order to that effect was also sought against the other respondents, namely, the State of Bihar, the Commissioner of Tirhut Division, Muzaffarpur, the Collector of Saran and the Additional Collector, Saran, who is now managing the Hathwa Raj under the direction and the supervision of the Court of Wards. This application was heard by a Bench of this Court, and it was dismissed on the '14th March, 1951'. The petitioner now prays that a certificate be granted to him as contemplated by Article 132 (1), Article 133 (1) (b) and Article 133(1) (c) of the Constitution of India.

2. According to Article 132 (1), an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a Civil, Criminal or other proceeding, if the High Court certified that the case involves a substantial question of law as to the interpretation of this Constitution. According to Article 133 (1) (a) an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that the amount or value of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees. And according to Article 133(1) (c) an appeal shall lie to the Supreme Court from any judgment, decree or final order in a Civil Proceeding of a High Court if the High Court certifies that the case is a fit one for appeal to the Supreme Court.

3. The learned Counsel appearing for the applicant contended before us that as the value of the estate known as the Hathwa Raj to which the applicant has succeeded on the death of his father is very much more than Rs. 20,000/- a certificate has to be granted under Article 133(1)(a). The learned Counsel further submitted that in view of the contention that has been raised by the applicant in this case it must be regarded as a case fit for appeal to the Supreme Court.

4. The learned Government pleader who appeared for the State of Bihar contended in reply that the proceeding that was before the High Court cannot be regarded as a civil proceeding inasmuch as the Court of Wards assumed charge of the State of the late Maharaja Bahadur in the exercise of a jurisdiction which is essentially the jurisdiction of a sovereign power. The important point that arises for determination, therefore, is whether the proceeding that was before the High Court can be regarded as a civil proceeding. For determination of this question, it is necessary to know what were the questions raised and decided in the proceeding. It had been strenuously urged on behalf of the petitioner that as he had attained the age of majority in the lifetime of his father the State of Bihar or the Board of Revenue had no right to remain in charge of the estate after the estate had descended on him on his father's death. It was asserted by the petitioner that he was neither a joint proprietor of the Hathwa Raj estate during the lifetime of his father nor had he an immediate or reversionary interest in the property of his father nor was he possessed of any such property of which the Court of Wads could take charge or did, in fact, take charge under section 7 of the Court of Wards Act. The second important contention raised by the petitioner was that section 7 of the Court of Wards Act had been amended and re-enacted in a form which abrogated altogether the power of the Court of Wards to take charge of the person or property of a minor belonging to the family of a proprietor who had been declared as a disqualified proprietor on his own application. Lastly, it was contended that the extension of the minority period to 21 years would be in derogation of the fundamental rights of the petitioner to hold and possess his property and that this extension is in violation of the guarantees of the fundamental rights as indicated in Article 14 of the Constitution. These points were, however, decided against the petitioner, and it was further held that the remedy given by Article 226 was an extraordinary one and could be invoked only in exceptional circumstances by a person who made no alternative remedy by way of suit or otherwise. Speaking for myself, I have not the least doubt that a proceeding in which the above-mentioned points were raised and determined is a "Civil Proceeding" of the nature contemplated by Article 133(1) of the Constitution.

5. The expression "Civil Proceeding" has been defined in Stroud's judicial Dictionary, and the definition given there is:

Is a process for the recovery of individual right or redress of individual wrong; inclusive, in its proper legal sense, of suits by the Crown." In Halsbury's Laws of England the grant of a peremptory mandamus is described as a determination of the right according to the merits of a case. In Joseph chitty's Treatise on the Law of the Prerogative of the Crown the leaded author says that there must be a specific legal right, as well as the want of a specific legal remedy, in order to form an application for a mandamus and that this is substantial a civil remedy for the subject. In Stephen's Commentaries of the Laws of England it has been said that the action of Mandamus will only lie when the plaintiff has a right of action not necessarily for damages) against the defendant and that the dividing line between the prerogative writ of mandamus and the statutory action of mandamus has not been clearly drawn but that the letter is sometimes used when it is desired to compel a local authority to levy a late in order to satisfy the debt or other liability owing to the plaintiff. I should like to quote the following passage from the well-known book Dicey's Introduction to the study of the Law of the Constitution.

The particular cases in which a party aggrieved by the decision of a State Court has a right of appeal to the Supreme Court of the United States are regulated by an Act of Congress of 24th September, 1739, the twenty fifth section of which provides that 'a final judgment or decree, in any suit, in the highest court of law or equity of a State, may be brought up on error in point of law, to the Supreme Court of the United States, provided the validity of a treaty, or statute of, or authority exercised under the United States, was drawn in question in the State Court, and the decision of any State authority was drawn in question, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision was in favour of its validity; or provided the construction of any clause of the Constitution or of a treaty, or statute of, or commission held under the United States, was drawn in question, and the decision was against the title, right privilege, or exemption, specially claimed under the authority of the Union.' (Kent, Commentaries, 1. (12th rd.) pp. 299, 300). Strip this enactment of its technicalities and it comes to this. A party to a case in the highest Court, say of New York, who bases his claim or defence upon an article in the Constitution or law made under it, stands in this position: If judgment be in his favour there is no further appeal; if judgment goes against him, i.e has a right of appeal to the Supreme Court of the United States. Any lawyer can see at a glance how well devised is the arrangement to encourage State Courts in the performance of their duty as guardians of the Constitution, and further that the Supreme Court thereby becomes the ultimate arbiter of all matters affecting the Constitution.

6. As was pointed out by his Lordship Mahajan J. in the 'Province of Bombay v. Kusaldas S. Advani', 1950 SCR 621, the expression "Sue" means the enforcement of a claim or a civil right by means of legal proceedings. His Lordship further observed that when a right is in jeopardy, and proceedings that can be adopted to put it out of jeopardy fall within the expression "Sue". The expression "suit" in the above quotation from Dicey's Law of the Constitution should, therefore, be given the meaning that has been given to the expression by his Lordship Mahajan J. Under section 45 of the Specific Relief Act the High Courts of Calcutta, Madras and Bombay could make an order requiring any specific act to be done or forborne, within the local limits of its ordinary original civil jurisdiction, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or inferior Court of Judicature, and the conditions to be specified before making an order under Section 45 are laid down in Clauses (a) to (e) of the proviso to the section. If an application is made by some person whose property, franchise or personal right would be injured by the forbearing or doing, (as the case may be) of the act complained of, it cannot be urged that such an application is not an application for the redress of a civil wrong.

7. The learned Government pleader, however, relied on a decision of the Calcutta High Court in Secretary of State v. Shreegobinda Chaudhuri', 59 Cal 1289 , in which it was held that the jurisdiction exercised by the Court of Wards is the exercise essentially of sovereign power, and that a suit for damages does not lie against the Secretary of State for India in Council for misfeasance, wrongs, negligence or omissions of duties of managers appointed by the Court of wards. In my opinion, this ruling has got no application in this present case before us in which it was strenuously contended by the applicant that the provisions of the Court of Wards Act as also of the Indian Majority Act in so far as they purport to extend the period of minority of a person to 21 years have become void from the date the Constitution came into force, because these provisions are in conflict with the provisions of Article 14 of the Constitution. It is certainly open to a citizen of the State to contend that a particular provision of law in void because it conflicts with a particular provision of the Constitution of India and a proceeding in which such a question comes to be determined must be regarded as a civil proceeding. The petitioner also contended that he had no reversionary or immediate interest in the impartible estate of the Hathwa Raj within the meaning of Section 7 of the Court of Wards Act and that the expression "reversionary interest" cannot cover the right, if any, available to the petitioner during the lifetime of his father. A proceeding in which this and the other contentions raised came to be determined must be regarded as a civil proceeding, and in this connection I may also refer to Article 31 of the Patna High Court Letters Patent according to which any person could appeal to His Majesty from any final judgment, decree or order of this Court made on appeal or made in any final decree, judgment or order in the exercise of the original jurisdiction by the Judges of this Court.

8. Recently, a Full Bench of this Court had to consider the question as to whether the aggrieved party in a Sales Tax case decided by the High Court has the right to apply for leave to appeal to the Supreme Court, and Article 133 of the Constitution of India came to be considered by their Lordships (See Tobacco Manufacturers (India Ltd.) v. the State', 30 Patna 174. The majority decision is that any judgment which the High Court pronounces in regard to the question of law referred to it by the Revenue authorities is not a judgment in the technical sense of the term but merely a sort of opinion or advice given to the Revenue-authorities. Sarjoo Prosad, J., who delivered the majority judgment observed that the words "judgment" "decree" and "final order" are common to both the Articles 132 and 133 of the Constitution and that it cannot be doubted that Article 132 applies to all proceedings, civil and criminal. His Lordship further observed that the term "Judgment" in Article 133 has been used in the same sense as it was used in Section 205 of the Government of India Act and the dropping of the word "final" before the word "judgment" did not make any difference whatsoever. For reasons which are not relevant to the point raised and agitated before us their Lordships held that a judgment of the High Court pronounced on a reference under Section 21 (3) of the Bihar Sales Tax Act 1944 cannot be called a judgment within the meaning of Article 133 of the Constitution of India so as to give the aggrieved party a right to appeal to the Supreme Court and that the proceedings in the Sales Tax case are not civil proceedings within the meaning of Article 133 of the Constitution, hut the principles indicated in the judgment undoubtedly go to support my view that a proceeding of the nature with which we are concerned in this case must be regarded as a civil proceeding. Shearer, J. who differed from the two other Judges observed that in construing any Constitution Act the Courts are bound to give it a broad and liberal interpretation, and that for that reason the words 'judgment", "decree" and "order" in Article 133 (1) are not to be construed distributively. His Lordship further pointed out that the phrase "any judgment, decree or final order made in a civil proceedings" must be regarded as a single compendious phrase, embracing every decision in a civil proceeding which is not a final but is merely a preliminary or an interlocutory order. We are not here concerned with the question whether the expression embraces a decision which is a preliminary or an interlocutory order. Here we are concerned with the final order in a proceeding, and the only question is whether it is a civil proceeding or a proceeding of another nature. The view which has been taken by all the three Judges in this Sales Tax case leaves no room for doubt that a proceeding of the nature with which we are concerned in this present application must be regarded as a civil proceeding.

9. There are certain other observations of Shearer, J., with which I find myself in respectful agreement, and they are as follows:

The Constitution, it appears to me, proceeds on the assumption that proceedings are either civil proceedings or criminal proceedings. In England proceedings arising out of references made under fiscal statutes are governed by a special procedure and are heard by the King's Bench Division on the revenue side. Nevertheless, they are, I believe, regarded as a civil proceeding. It has to be remembered that the Constituent Assembly was legislating not for today, nor for tomorrow, but for an indefinite future, and it presumably realised that at some time or other a question might be raised as to whether a proceeding was or was not a civil proceeding. More particularly, it may perhaps have considered that such a doubt might arise regarding proceedings in connection with one of the writs which the High Courts are empowered to issue under Article 226 (1). In England, a doubt appears at one time to have arisen as to whether proceedings in 'quo warranto' were civil proceedings and Section 15 of the Supreme Court of Judicature Act, 1884, was in consequence, enacted providing that they should be deemed to be civil proceedings, whether for purposes of appeal or otherwise." Thus, in my opinion, this Full Bench decision is a decision which lends considerable support, to the view that the proceeding arising out of the application of the present applicant for a writ of mandamus was a civil proceeding. In this view of the matter. I would grant leave to appeal under Article 133 (1) (a) of the Constitution, and it is no more necessary to determine whether a certificate should or should not be granted under Article 132 (1) or Article 133 (1) (c).
10. In the result, I would allow the application and grant leave to the applicant to appeal to the Supreme Court against the decision in Miscellaneous Judicial Case No. 79 of 1951. The applicant's counsel prayed for expediting the matter, and the applicant is prepared to deposit the security and the necessary costs at once. After the deposit is made the matter should be expedited, and the paper-book should be prepared as early as possible.

David Ezra Reuben, J.

11. I agree. The fact that the proceeding in relation to which this petition has been filed was a proceeding under Article 226 of the Constitution does not by itself make Article 133 inapplicable. Bihar-Bukhtearpur Light Railway Co. v. District Board of Patna', S. C. Appeal No. 57 of 1950, related to such a proceeding. The Light Railway Co. had applied to this Court under Article 226 for a mandamus against the District Board restraining the District Board from taking physical possession of the Light Railway. At the hearing, the parties came to an agreement and the case was disposed of without an adjudication. In spite of the agreement, the District Board subsequently took possession of the Railway and the Light Railway Co. applied to this Court for a writ' of contempt against the District Board for an alleged breach of an undertaking given to the High Court and for a mandamus to direct the District Board to restore possession of the Light Railway to the Company. The petition of the Light Railway Co., was dismissed by the High Court and leave to appeal against this order was given to it under Article 133, Clause (1), sub-clause (c) of the Constitution. It has been sought to distinguish that case on the ground that it was between private parties whereas in the present case the proceeding was directed against the State of Bihar in relation to action under the Court of Wards Act, that is action which it is empowered to take in its sovereign capacity (vide 'Secretary of State v. Shreegobinda Chaudhuri', 59 Cal 1289 .) I cannot agree that the capacity in which the State is empowered to perioral the action which is challenged will determine the nature of the proceeding in which that action is challenged. For instance, in the case just cited it was held that a Civil Suit would not lie against the State because the action taken by it under the Court of Wards Act was taken in its sovereign capacity. The suit, however, was a civil proceeding nevertheless. So also was it in 'East India Co. v. Syed Ali', 7 M I A 555, where it was held for a similar reason that the suit would not lie.

12. In the Letters Patent of the Patna High Court there are provisions relating to the different kinds of jurisdiction which the High Court has authority to exercise, namely, civil jurisdiction, criminal jurisdiction, admiralty jurisdiction, testamentary and intestate jurisdiction and matrimonial jurisdiction. A provision for appeals to the Privy Council is contained in Clause 31 of the Letters Patent, similar to the provision in Clause (1) of Article 133 of the Constitution except that the limiting valuation is Rs. 10,000 instead of Rs. 20,000. The provision in the Letters Patent relates to "any matter not being of criminal jurisdiction." Similar provisions are contained in the Letters Patent of the other High Courts in India. The provisions for appeals to the Privy Council, therefore, were not confined to proceedings in the High Court in the exercise of its ordinary civil jurisdiction as defined in the Letters Patent. Taking this into account, I do not think the words "a civil proceeding" in Article 133 of the Constitution should be interpreted in this narrow sense. There is no reason why the words should not be interpreted in their natural sense as meaning a proceeding of a civil nature.