TaxTMI 
TaxTMI 
1960 (12) TMI 84
X X X X Extracts X X X X
X X X X Extracts X X X X
....ations. The petitioner will be referred to as the appellant in the course of this judgment. He was aged 45 years 262 days on August 12, 1954. He was holding a regular commission in the Jammu and Kashmir State Forces, which were amalgamated with the Defence Forces of the Union with effect from September 1, 1949. The appellant holding the substantive rank of Lieut. Col. in the amalgamated forces had the right to continue in service until he attained the age of 53 years, which event will happen on November 20, 1961. The Government of India issued a letter dated July 31, 1954, retiring the appellant from the service with effect from August 12, 1954, This decision of the Government of India is not based on any allegations or charge of inefficiency, indiscipline or any other irregularity on the part of the appellant. The aforesaid decision of the Government of India prematurely retiring the appellant is impugned as illegal, unwarranted and discriminatory and as having been made in contravention of Art. 16(1) of the Constitution. The petition was opposed on behalf of the respondents aforesaid on a number of preliminary grounds of which it is only necessary to mention the first, namely, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....servations relating to "authority" in the case of Election Commission, India v. Saka Venkata Subba Rao ([1953] S.C.R. 1144.) applied with equal force to Government, inincluding the Union Government. The Government of India functions through its officers and, therefore, the location contemplated means the place at which the orders impugned are ordinarily passed. The considerations in a suit with reference to the cause of action for the suit do not stand on the same footing in a writ matter, because the writ has to reach the particular officers of the Government concerned. The expression "in appropriate cases" means that there may be cases where though the Union Government as such is not located within the territorial limits of a High Court yet a writ may be issued against it by the High Courts because an officer of the Union Government is functioning within such limits and it is his order which is the subject matter of the controversy. Therefore, it is not in every case that a High Court can issue a writ against the Union. A writ of mandamus, for example, is directed against a particular named person or authority. Similarly, a writ of certiorari is directed again....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the presence of the person or authority 'within the territories' in relation to which the High Court exercises jurisdiction". The Constitution Bench in that case considered that the language of Art. 226 of the Constitution was "reasoriably plain" and that the exercise of the power conferred by that Article was subject to a two-fold limitation, namely, (1) that the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction" and (2) that the person or authority to whom the High Court is empowered to issue the writs must be "within those territories". In other words, the writ of the Court could not run beyond the territories subject to its jurisdiction and that the person or authority affected by the writ must be amenable to the Court's jurisdiction, either by residence or location within those territories. The second case of this Court, which dealt with this question is K. S. Rashid and Son v. The Income-Tax Investigation Commission ([1954] S.C.R. 738.). That was a case on appeal from the judgment and order dated August 10, 1950, of the High Court of Judicature, Punjab, at Simla, in a number of m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd were, therefore, amenable to its jurisdiction. He further contended that the Union Government functioned throughout the territory of India and could not be said to be located only in Delhi simply because the capital for the time being was in Delhi. In this connection, strong reliance was placed on the decision of the Full Bench of the Allahabad High Court in Maqbulunnissa v. Union of India (I.L. R. (1953) 2 All. 289.). That case does lend a great deal of support to this contention on behalf of the appellant. It was held by the High Court in that case that the words "any Government" in Art. 226(1) of the Constitution clearly indicated that the Allahabad High Court had jurisdiction to entertain the petition under Art. 226, not only against the State of Uttar Pradesh, but also against the Union Government for the issue of a writ in the nature of mandamus, directing the Government to forbear from giving effect to the order asking the petitioner to leave India. The ratio of the decision was that, even though the capital of the Government of India is in Delhi, its executive power extends throughout the territory of India and that the real test to determine the jurisdiction w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed on behalf of the appellant. The first argument is that the word "authority" used in Art. 226 cannot and does not include Government. We are not impressed by this argument. In interpreting the word "authority" we must have regard to the clause immediately following it. Art. 226 provides for "the issue to any person or authority including in appropriate cases any Government" within those territories. It is clear that the clause "including in appropriate cases any Government" goes with the preceding word "authority", and on a plain and reasonable construction it means that the word " authority" in the context may include any Government in an appropriate case. The suggestion that the said clause is intended to confer discretion on the High Courts in the matter of issuing a writ or direction on any Government seems to us clearly unsustainable. To connect this clause with the issuance of a writ or order and to suggest that in dealing with cases against Government the High Court has to decide whether the case is appropriate for the issue of the order is plainly not justified by the rules of grammar. We have no hesitation in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ll have power to issue to any person or authority within those territories...". So far as a natural person is concerned, there can be no doubt that he can be within those territories only if he resides therein- either permanently or temporarily. So far as an authority is concerned, there can be no doubt that if its office is located therein it must be within the territory. But do these words mean with respect to an authority that even though its office is not located within those territories it will be within those territories because its order may affect persons living in those territories? Now it is clear that the jurisdiction conferred on the High Court by Art. 226 does not depend upon the residence or location of the person applying to it for relief; it depends only on the person or authority against whom a writ is sought being within those territories. It seems to us therefore that it is not permissible to read in Art. 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence: or lo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e right to introduce in Art. 226 the concept of the functioning of Government when determining the meaning of the words "any person or authority within those territories". By introducting the concept of functioning in these words we shall be creating the same conflict which would arise if the concept of the place where- the order is to have effect is introduced in Art. 226. There can, therefore, be no escape from the conclusion that these words in Art. 226 refer not to the place where the Government may be functioning but only to the place where the person or authority is either resident or is located. So far therefore as a natural person is concerned, he is within those territories if he resides there permanently or temporarily. So far. as an authority (other than a Government) is concerned, it is within the territories if its office is located there. So far as a Government is concerned it is within the territories only if its seat is within those territories. The seat of a Government is sometimes mentioned in the Constitutions of various countries but many a time the seat is not so mentioned. But whether the seat of a Government is mentioned in the Constitution or not,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urts, though on the literal construction of cl. 8 of the Charter of 1800 conferring jurisdiction on, the Supreme Court of Madras, there could be little doubt that the Supreme Court would have the same jurisdiction as the Justices of the Court of King's Bench Division in England for the territories which then were or thereafter might be subject to or depend upon the Government of Madras. It will therefore not be correct to put too much stress on the decision in that case. The question whether the concept of cause of action could be introduced in Art. 226 was also considered in Saka Venkata Subba Rao's case ([1953] S.C.R. 1144) and was repelled in these words:- "The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Art. 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories' in relation to which the High Court exercises jurisdiction." Article 226 as it stands does not refer anywhere to the accrual of cause of action and to the jurisdiction of the High Court depending on the place where the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and the two decisions of this Court referred to above. We are of opinion that unless there are clear and compelling reasons, which cannot be denied, we should not depart from the interpretation given in these two cases and indeed from any interpretation given in an earlier judgment of this Court, unless there is a fair amount of unanimity that the earlier decisions are manifestly wrong. This Court should not, except when it is demonstrated beyond all reasonable doubt that its previous ruling, given after due deliberation and full hearing, was erroneous, go back upon its previous ruling, particularly on a constitutional issue. In this case our reconsideration of the matter has confirmed the view that there is no place for the introduction of the concept of the place where the impugned order has effect or of the concept of functioning of a Government, apart from the location of its office concerned with the case, or even of the concept of the place where the cause of action arises in Art. 226 and that the language of that Article is plain enough to lead to the conclusion at which the two cases of this Court referred to above arrived. 'If any inconvenience is felt on account of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... falls to be decided on a true construction of the said el. (2A) which reads: "Without prejudice to the powers conferred by clauses (1) and (2), the High Court shall have power throughout the territories in rotation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government within these territories, directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by this Part." The operative part of this clause is in pari materia with Art. 226 of the Constitution with the difference that the words "for any other purpose" found in the latter Article are omitted in the former. Though the power of the High Court of Jammu & Kashmir is limited to that extent, in other respects it is as extensive as that of the other High Courts under Art. 226. The object of the amendment is self- evident; it was enacted to enable the said High Court to protect the fundamental rights of the citizens of India in that part of the country. The learned Solicitor-General broadly contends that this ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r authority, including in appropriate cases any Government, directions, orders or writs for the enforcement of the fundamental rights or for any other purpose. In short, any person of India can approach an appropriate High Court to protect his rights against any person, authority or any Government if his fundamental right or any other right is infringed by the said person, authority or Government. If the contention of the respondents be accepted, whenever the Union Government infringes the right of a person in any remote part of the country., he must come all the way to New- Delhi to enforce his right by filing a writ petition in the Circuit Bench of the Punjab High Court. If a common man residing in Kanyakumari, the southern-most part of India, his illegally detained in prison, or deprived of his property otherwise than by law, by an order of the Union Government, it would be a travesty of fundamental rights to expect him to come to New Delhi to seek the protection of the High Court of Punjab. This construction of the provisions of Art. 226 would attribute to the framers of the Constitution an intention to confer the right on a person and to withhold from him for all practical pur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e rents payable by the ryots in three villages, including Parlakimedi village, in the district of Ganjam in the Northern Circars. The question was whether the Madras High Court had power to issue a writ to quash the order of the Board. of Revenue, as the parties to that litigation were not subject to the original jurisdiction of the Madras High Court. The Judicial Committee held that the Madras High Court had no jurisdiction to issue a writ of certiorari to run beyond the territorial limits of that High Court. When it was contended that, as the Revenue Board was in Madras, the High Court had jurisdiction to quash its order, the Judicial Committee repelled that contention with the follow- ing remarks at p. 164: "The Board of Revenue has always had its offices in the Presidency Town, and in the present case the Collective Board, which made the order complained of, issued this order in the town. On the other hand, the parties are not subject to the original jurisdiction of the High Court, and the estate of Parlakimedi ties in the north of the province............. Their Lordships think that the question of jurisdiction must be regarded as one of substance, and that it would not ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....terms. There is no difficulty about. the words "person or authority", but the phrase "including any Government" gives rise to a conflict of opinion. If the framers of the Constitution intended to extend simply the power of the High Court to issue writs only against the Government of the State, they could have stated "or the Government of the State", instead they designedly used the words "any Government" which at first sight appear rather involved but on a deeper scrutiny reveal that the words "any Government" cannot mean only the Government of the State. The word "any" clearly presupposes the existence of more than one Government functioning in a State. Under the Constitution two Governments function in each State. Under Art. 1, India shall be a Union of States and the territory of India shall comprise, inter alia, the territories of the States. Part 11 provides for one class of citizens, that is, citizens of India. In whatever State a person with the requisite qualifications of a citizen may reside, he is a citizen of India and not of that particular State. All the three departments of the Union as well as the State func....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rns upon the words "within those territories". It is said that the Union Government is not within the territories of the State, for its headquarters are in Delhi. The Article does not use the word "headquarters", "resident" or "location". The dictionary meaning of the word "within" is "inside of, not out of or beyond". The connotation of the words takes colour from the context in which they are used. A person may be said to be within a territory if he resides therein. He may also be within a territory if he temporarily enters the said territory or is in the course of passing through the territory. Any authority may be in a territory if its office is located therein. It may also be said to be within a territory if it exercises its powers therein and if it can make orders to bind persons for properties therein. So too a Government may be within a State if it has a legal situs in that State. It may also be said to be within a State if it administers the State, though for convenience some of its executive authorities are residing outside the territory. We must give such meaning to these words as would help the working of the C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Secretariat remains in New Delhi and the President resides for some months in a year in, say,, Hyderabad? Contrary-wise, what would be the position if the President stays in New Delhi and the entire or part of the Secretariat or some of the Ministers stay in Hyderabad? It is, therefore, not possible to apply 'the test of residence or location in the absence of any statutory situs. The Union Government has no fixed legal abode; it is present throughout the territories over which it exercises jurisdiction and in respect whereof it can make effective and binding orders in the field allotted to it by the Constitution. The constitutional situs of the Union Government is the entire territories of the Union and it is "within" the territories of India and,, therefore, within the territories of every State. Let us look at the problem from another standpoint. Under Art. 300 of the Constitution, the Government of India may sue or be sued by the name of the Union of India. The word "sued" is used in a general sense and cannot be narrowly construed in the Constitution as to comprehend only action by way of filing a suit in a civil court. According to Webster, it mean....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty." An order of prohibition is an order directed to an inferior tribunal forbidding it to; continue with the proceedings pending therein. An information in the nature of a quo warranto lies against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim. A certiorari is directed to an authority "requiring the record of the proceedings in some cause or matter to be transmitted into the High Court to be dealt with there." (See Halsbury's Laws of England, Vol. II, 3rd edition). It was asked how could the liberty of a subject be secured, the command be issued, the proceedings of an inquiry be prohibited, the credentials of a person to hold office be questioned, the records of a proceeding be directed to be transmitted to the High Court, if the authority concerned wag located, or the person directed resided, outside. the territorial jurisdiction of the High Court? It was also asked how, if the said authority, or person, disobeyed the orde....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and implanted in India? This Court shall have to put a reasonable construction on the words without being unduly weighed down by the historical background of these writs and construe the Article in such a way, if legally permissible, to carry out the intention of the Constitution-makers. That apart, Article 226 of the Constitution is not confined to the prerogative writs in vogue in England. The Article enables the appropriate High Court to issue also directions or orders, and there is no reason why the High Court could not, in an appropriate case, give a suitable direction to, or make a proper order on, the Union Government. Such directions or orders are certainly free from the procedural technicalities of the said writs. I shall now notice briefly the decisions cited at the Bar. The first is the decision of this Court in Election Commission, India v. Saka Venkata Rao([1953] S.C.R. lI44.). There the Governor of Madras referred to the Election Commission, which had its offices permanently located in New Delhi, the question whether the respondent was disqualified and could be allowed to sit and vote in the Assembly. The respondent thereupon applied to the High Court of Madras unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ia would equally apply to statutory authorities situate in one State but exercising jurisdiction in another, does not arise for consideration in this case; though, as I have already expressed, I am prima facie of the view that there is no reason why they should not. Now coming to the decision of the High Courts, there is a clear enunciation of the relevant principles in Maqbul- Un- Nissa v. Union of India(I.L.R. [1953] 2 AR. 289.). The Full Bench of the Allahabad High Court directly decided the point now raised before us. The importance of the decision lies in the fact that the learned Judges approached the problem without being oppressed by the decision of this Court in Saka Venkata Rao's case ([1953] S.C.R. 1144. ), which was decided only subsequent to that decision. After considering the relevant Articles of the Constitution' Sapru, J., speaking for the Full Bench, observed at pp. 293-294 thus: "The analogy between a government and a corporation or a joint stock company which has its domicile in the place where its head office is situate is misleading. To hold that the jurisdiction of this Court does not extend to the Union Government as it has its capital at Delh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e reasons already mentioned I am of opinion that the decision Is not applicable to the case of the Union Government. The second reason in effect places the procedure 'on a higher pedestal than the substantive law. It is true that in a writ of certiorari the records would be called for; but, if once it is held that the Union Government is within the State within the meaning of Art. 226 of the Constitution, I do not think why the High Court in exercise of its constitutional power cannot direct the Union Government to bring the records wherever its officers might have kept them. This second ground is really corollary to the first, viz., that the Union Government is not within the territorial jurisdiction of the High Court concerned. The Bombay High Court in Radheshyam Makhanlal v. The Union of India () A.I.R. 1960 Bom. 353.) also held that a writ cannot issue against the Union Government whose office is located outside the territorial jurisdiction of the High Court. Shah, J., applying the principle of the decision in Saka Venkata Rao's case ([1953] S.C.R. 1144.) to the Union Government hold that as the office of the Union Government was not located within the State of Bombay, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orial limits of the High Court is not of any relevance, for it is the Union Government that will have to produce the record or carry out the order, as the case may be. (8) The orders issued by the High Court can certainly be enforced against the Union Government, as it is amenable to its jurisdiction, and if they are disobeyed it will be liable to contempt. (9) Even if the Officers physically reside outside its territorial jurisdiction, the High Court can always reach them under the Contempt of Courts Act, if they choose to disobey the orders validly passed against the Union Government which cannot easily by visualized or ordinarily be expected. (10) The difficulties in communicating the orders pertain to the rules of procedure and adequate and appropriate rules can be male for communicating the same to the Central Government or its officers. For the aforesaid reasons, I hold that Art. 32(2A) of the Constitution enables the High Court of Jammu & Kashmir to issue the writ to' the Union Government in respect of the act done by it infringing the fundamental rights of the parties in that State. In the result,, I allow the appeal, set aside the order of the High Court and direct&#....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l other High Courts and the further fact that power granted by this Article is for the enforcement only of the rights conferred by Part III of the Constitution while Art. 226 gives power to the High Courts in the Union for the enforcement not only of the rights conferred by Part III but for any other purpose, the provisions of the two articles are exactly the same. Power is given to the High Court to give relief in certain matters by issuing appropriate writs and orders to (1) any person; (2) any authority other than the Government and (3) any Government. The exercise of this power is subject to the existence of the condition precedent that the person or the Government or the authority other than the Government must be "within the territories in relation to which the High Court exercises jurisdiction". A special limitation in respect of the issue of writs or orders to a Government is introduced by the words "in appropriate cases" before the words "any Government". Leaving for later consideration the effect of the words "in appropriate cases" we have first to examine the question: when is a Government within the territories under the jurisdict....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rnors of States have also special places of residence at some places in the State known as Rai Bhavan is apt to make us forget that the Constitution does not provide for any place 'of residence for the President or Governors. There is nothing to prevent the President of India from having more than one permanent place of residence within the Union. If this happens and places of residence are provided for the President of India in, say, Bombay, Calcutta and Madras in addition to the residence at Delhi, can it be said that the Government of India is located in Delhi when the President of India resides in Delhi, it goes to Calcutta when he resides in Calcutta, it goes to Bombay when the President resides in Bombay and to Madras when the President goes and resides in Madras? This may seem at first sight a fantastic illustration; but when we remember that in fact in the days of British rule, the Viceroy had a permanent place of residence at Simla for part of the year and another permanent place of residence at Calcutta for part of the year before 1911 and after 1911 one permanent place of residence in Delhi and another in Simla, it is easy to see that what has been said above by way ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m their functions at one particular place in the State. Situations may arise not only in an emergency, but even in normal times, when some Ministers of the Government may find it necessary and desirable to dispose of the business allocated to them at places different from where the rest of the Ministers are doing so. The rehabilitation of refugees from Pakistan is part of the business of the Government of India and for the proper performance of this business there is a Ministry of Rehabilitation for Refugees. It is well-known that the Minister in this Ministry has to perform a great portion of his business at Calcutta 'in West Bengal and stays there for a considerable part of the year. Many of the offices of this Ministry are situated in Calcutta. What is true of this Ministry, may happen as regards other Ministries also. Special circumstances may require that some portion of the business of the Minis. try of Commerce be performed at places like Bombay, Calcutta or Madras in preference to Delhi, and if this happens the Minister to whom the business of Government of India in respect of commerce has been allocated will be transacting his business at these places instead of at Del....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uld be meaningless then to give the High Court the power to give relief against "any Government" within its territories. These words "any Government" were used because the Constitution-makers intended that the High Court shall have power to give relief against the Government of India also. But, contends the respondent, that will produce an intolerable position which the Constitution-makers could not have contemplated. The result of the Government of India being within the territories of every High Court in India will, it is said, be that the Government of India would be subjected to writs and orders of every High Court in India. A person seeking relief against the Government of India will naturally choose the High Court which is most convenient to him and so the Government of India may have to face applications for relief as against the same order affecting a number of persons in all the different High Courts in India. If a position of such inconvenience to the Government of India' though of great convenience to the persons seeking relief, did in fact result from the words used by the Constitution-makers, I for one, would refuse to shrink from the proper in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....only High Court which has jurisdiction to give relief under Art. 226. That, in my view, is the necessary result of the words "in appropriate cases". On behalf of the appellant it Was contended on the authority of the decision of the Privy Council in Ryots of Garabandho v. Zemindar of Parlakimedi ([1953] S.C.R. 1144.) that all that is necessary to give, jurisdiction to a High Court to act under Art. 226 is that a part of the cause of action has arisen within the ';territories in relation to which it exercises jurisdiction. The question whether the cause of action attracts jurisdiction for relief (1) (1943) L.R. 70 I.A. 129. under Art. 226 of the Constitution as in the case of suits was considered by this Court in Saka Venkata Subba Rao's Case and the answer given was in the negative. Referring to the decision of the Privy Council in Parlakimedi's Case (((1943) L.R. 70 I.A. 129.)) this Court pointed out that the decision did not turn on the construction of a statutory provision similar in scope, purpose or wording to Art. 226 of the Constitution, and is not of much assistance in the construction of that article. Delivering the judgment of the Court Patanjali Sa....