# N. MASTHAN SAHIB v. CHIEF COMMISSIONER, PONDICHERRY

- **Citation:** [1962] Supp. 1 S.C.R. 981
- **Court:** Supreme Court of India
- **Decided:** 1960-09-07
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanohoo, K. C. Das Gupta, N. Raj.A.Gop.A.La Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-masthan-sahib-v-chief-commissioner-pondicherry-2581
- **Pages:** 37

## Headnote

Territory of India-Pondicherry, if part of India-Question referred to Union Governmtnt-Amwer of Union Gol!t.rament, if binding on Gourt-Ordera of authorities in Pondicherry
-Ap~l and Writ Petition, if maintainable in Supremt Gwrt--
Gon11titution of India, Arts. I (3), 32 and 136.
·
The Supreme Court referred two questions to the Union
Government viz (i) whether.Pondicherry was comprised within
the territory oflndia, and (ii) if not, what was the extent of
the jurisdiction exercised by the Union Government and the
French Government over the territory. The answers given
were that (i) Pondicherry was not comprised within the territory of India and (ii) the Union Government exercised full
jurisdiction over Pondicherry and the French Government did
not exercise any de facto jurisdiction over it. There was a
treaty of cession between France and India in respect of
Pondichcrry but it had not been ratified as required by the
French and Indian laws. The appellant contended that the
answer of the Union Government to the second question
established that Pondicherry was part of the territory of India
and that the Court was not bound by the answer to the first
question.
Hekl, that Pondichorry was not comprised within the
territory of India as specified in Art. I (3) of the Constitution.
The answer of the Union Government on this question was
binding on the Court. There was no conflict between the
answers to the two questions. Though complete administrative control over Pondicherry had been transferred to the
Government of India it could not be equated to a transfer of
territory. Unless there was ratification of the Treaty there
could legally be no transfer of'territory. Accordingly, no
appeal could be entertained by the Court under Art. 136 of
the Constitution apinst the decisions of the authorities in
Pondicherry .
1961
W61
N. M asthan Sahib
••
Chief Commissioner;
Pondicherry
982 SUPREME COURT REPORTS [1962) SUPP.
Duff Dei·elopment Company v. Government aj Kelantan
1924 A.O. 197, Government of the Republic of Spain v. Arant·
razu Mendi, (1939) A. C. 256 and Fageri,es 1927 Probate
311, applied.
Jolley v. Mainka 49 C.L.R. 242 and Fjrost v. Stevenson,
58 C.L.R. 528, distingui•hed .
. Per Gajendragadkar, Wanchoo and Ayyangar, JJ.-
Havmg regard to the nature of the relief sought no writ under
._ "'
Art. 32 of the Constitution could be issued to the authorities in
'"
~dhl~.
•
P.r Sarkar and Das Gupta, JJ.-The Supreme Court
could issue a writ under Art. 32 to the quasi-Judicial authori·
ties in Pondicherry. Article 32 was a fundamental right and the
right to obtain a writ was equally a fundamental right. If the
Constitution gave to a party a fundamental right to a writ the
Court could not refuse that right. The consideration that the
writ i1Sued may not be enforced in Pondicherry could not be
,
allowed to defeat the provisions of the Constitution. Such a
consideration is
relevant only in the case of discretionary •
orders.
K. K. Kochunni v. 'l'he
State of Madras, [1959) Supp.
2 S.C.R. 316, In re International Pulp and Paper Oo. Ltd.,
(1876) 3 Ch.U.594, Reg v. Fox, 8 E. & B. 939, R. v. OasBel,
(1916) 1 K.B. 595 and Jn re Banwari!al Roy, 48, C.W.N. 755,
referred to.
C1vn. ·APPELLATE JURISDICTION: Civil Appeal
Nos. 42 and 43 of 1961.
Appeals by special leave from the judgments
and orders dated September 7, 1960 of the Chief
Commissioner, Pondicherry in Appeals Nos. 56 and
57 of 1960.
WITH
Petitions Nos. 297 and 298 of 1960.
Petitions under Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
A. V. Viswanathr,,Sastri,R. K. Garg, M.K.Ramamurthy, S. 0. Agarwal and D.P. Singh, for the appellants/petitioners (In both the appeals and the
petitions.)
O. K. Daphtary,
Solicitor-General of India,
B. Sen, B. R. L. Iyengarand T. M. Sen, for 1he
..
)
'
(I) S.C.R.
SUPREME COURT REPORTS
983
respondent No. I (in both the appeals) and respondents Nos. I and 2 (in both the petitions).
A. S. R. Chari, K. R. Ohoudhria.nd R. Mahalingier, for res

## Text

_Characters 0–39,910 of 72,694. This is a partial read: ask again with offset=39910 for what follows._

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(l) S.C.R.
SUPREME COURT REPORTS
981
N. MASTHAN SAHIB
v.
CHIEF COMMISSIONER, PONDICHERRY
(P. B. GAJENDRAGADKAR, A. K. SARKAR, K. N.
WANOHOO, K. C. DAS GUPTA and N. RAJ.A.GOP.A.LA
AYYANGAR, JJ,)
Territory of India-Pondicherry, if part of India-Question referred to Union Governmtnt-Amwer of Union Gol!t.rament, if binding on Gourt-Ordera of authorities in Pondicherry
-Ap~l and Writ Petition, if maintainable in Supremt Gwrt--
Gon11titution of India, Arts. I (3), 32 and 136.
·
The Supreme Court referred two questions to the Union
Government viz (i) whether.Pondicherry was comprised within
the territory oflndia, and (ii) if not, what was the extent of
the jurisdiction exercised by the Union Government and the
French Government over the territory. The answers given
were that (i) Pondicherry was not comprised within the territory of India and (ii) the Union Government exercised full
jurisdiction over Pondicherry and the French Government did
not exercise any de facto jurisdiction over it. There was a
treaty of cession between France and India in respect of
Pondichcrry but it had not been ratified as required by the
French and Indian laws. The appellant contended that the
answer of the Union Government to the second question
established that Pondicherry was part of the territory of India
and that the Court was not bound by the answer to the first
question.
Hekl, that Pondichorry was not comprised within the
territory of India as specified in Art. I (3) of the Constitution.
The answer of the Union Government on this question was
binding on the Court. There was no conflict between the
answers to the two questions. Though complete administrative control over Pondicherry had been transferred to the
Government of India it could not be equated to a transfer of
territory. Unless there was ratification of the Treaty there
could legally be no transfer of'territory. Accordingly, no
appeal could be entertained by the Court under Art. 136 of
the Constitution apinst the decisions of the authorities in
Pondicherry .
1961
W61
N. M asthan Sahib
••
Chief Commissioner;
Pondicherry
982 SUPREME COURT REPORTS [1962) SUPP.
Duff Dei·elopment Company v. Government aj Kelantan
1924 A.O. 197, Government of the Republic of Spain v. Arant·
razu Mendi, (1939) A. C. 256 and Fageri,es 1927 Probate
311, applied.
Jolley v. Mainka 49 C.L.R. 242 and Fjrost v. Stevenson,
58 C.L.R. 528, distingui•hed .
. Per Gajendragadkar, Wanchoo and Ayyangar, JJ.-
Havmg regard to the nature of the relief sought no writ under
._ "'
Art. 32 of the Constitution could be issued to the authorities in
'"
~dhl~.
•
P.r Sarkar and Das Gupta, JJ.-The Supreme Court
could issue a writ under Art. 32 to the quasi-Judicial authori·
ties in Pondicherry. Article 32 was a fundamental right and the
right to obtain a writ was equally a fundamental right. If the
Constitution gave to a party a fundamental right to a writ the
Court could not refuse that right. The consideration that the
writ i1Sued may not be enforced in Pondicherry could not be
,
allowed to defeat the provisions of the Constitution. Such a
consideration is
relevant only in the case of discretionary •
orders.
K. K. Kochunni v. 'l'he
State of Madras, [1959) Supp.
2 S.C.R. 316, In re International Pulp and Paper Oo. Ltd.,
(1876) 3 Ch.U.594, Reg v. Fox, 8 E. & B. 939, R. v. OasBel,
(1916) 1 K.B. 595 and Jn re Banwari!al Roy, 48, C.W.N. 755,
referred to.
C1vn. ·APPELLATE JURISDICTION: Civil Appeal
Nos. 42 and 43 of 1961.
Appeals by special leave from the judgments
and orders dated September 7, 1960 of the Chief
Commissioner, Pondicherry in Appeals Nos. 56 and
57 of 1960.
WITH
Petitions Nos. 297 and 298 of 1960.
Petitions under Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
A. V. Viswanathr,,Sastri,R. K. Garg, M.K.Ramamurthy, S. 0. Agarwal and D.P. Singh, for the appellants/petitioners (In both the appeals and the
petitions.)
O. K. Daphtary,
Solicitor-General of India,
B. Sen, B. R. L. Iyengarand T. M. Sen, for 1he
..
)
'
(I) S.C.R.
SUPREME COURT REPORTS
983
respondent No. I (in both the appeals) and respondents Nos. I and 2 (in both the petitions).
A. S. R. Chari, K. R. Ohoudhria.nd R. Mahalingier, for respondent No. 2 (in both the appeals).
R. GcYpawkrishnan, for respondent No. 3 (in
both the petitions).
1961. December,
8.-The
Judgment
of
Gajendragadkar, Wanchoo and Ayyangar, JJ., was
delivered by Ayyangar, J. The judgment of Sarkar
and Das Gupta, JJ., was delivered by Sarkar, J .
AYYANGAR, J.-The two Civil Appeals are
by special leave of this Court and the two Writ
Petitions have been filed bj the respective appellants seeking the same relief as in the appeals, the
relief sought being the setting aside of orders passed by the Chief Commissioner of Pondicherry as
the State Transport appellate authority (under the
Motor Vehicles Act). All these four have been
heard together because of a common point raised
regarding the jurisdiction of this Court to entertain
the appeals and the petitions.
It is manifest that the preliminary point
about the jurisdiction of this Court should have
first to be considered before dealing with the
merits of the contentions raised in the appeals and
petitions. It might be convenient to state a few
faots to appreciate the context in which the questions debated before us arise and the point concerned in the order now passed.
Sivarama Reddiar the appellant in Civil
Appeal 43 of 1961 and the petitioner in Writ Petition 298 of 1960, is a citizen of India and is engaged. in ~he business of motor transport. By a
notification dated December 27, 1958 in the Official
G~z~tte of Pond!cherry .th~ State Traniport Comm1BB10n of Pondicherry mv1ted applications for the
grant of stage carriage p'!rmits to be submitted
before February 27, 1959, including the route from
Pondicherry to Karaikal, the latter being another
1961
N. Masthan Sahi~
v.
Chit/ Commissioner,
Pondielwry
Ayyanear ..
984 SUPREME COUR'l' REPORTS [1962] SUPP·
former French possession. In response to this
N. Masthan Sahib
notification, Sivarama Reddiar as well as one Gopal
v.
Pillai who is the second respondent to the appeal
1961
Chief Go'.•mi.,fon.,, and the second respondent in the Writ Petition
P ondicherry
Ayyangar J,
were two of the 19 persons who made applications
for the grant of this permit to them. Before the
State Transport Commission dealt with these applications, the Government. of India in the exercise
of its powers under s. 4 of the Foreign Jurisdiction
Act, 194 7 published a notification in the Offici11tl
Gazette of Pondicherry extending the provisions of
the Indian Motor Vehicles Act, 1939 as in force in
Delhi to Pondicherry with effect from June 19,
1959. Rules 3(4) and 4 of this order promulgated
under the Foreign Jurisdiction Act provided :
"3( 4). Any Court, tribunal or authority
required or empowered to enforce the said
Act in Pondicherry may for the purpose of
facilitating its application in relation to
Pondicherry construe the said Act with such
alteration not affecting the substance as may
be necessary or proper with respect to the
matter before the Court, tribunal or authority
as the case may be."
Rule 4 effected a repeal of existing laws in these
terms:
"Repeal of existing laws :-All laws in
force in Pondicherry immediately before the
commencement of the Order which correspond
to the Act and the rules, notifications and
'Orders applied to Pondicherry by this order
shall, except in so far as such laws relate to
the levy of any fee, cease to have effect save
as respects things done or omitted to be done
before such commencement."
On July 21, 1959, the Chief Commissioner of Pondicherry, in exercise of the powers conferred on him
by s. 44 of the Motor Vehicles Act, 1939 collBtituted
a Sta.te Transport Authority for Pondicherry
Thu
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(1) S.C.R. SUPREME COURT REPORTS
985
State Transport Authority, Pondicherry thus created, issued a notification on August 1, 1959 by which
it required persons who had applied for Stage
Carriage permits in response to the notification
dated December 27, 1958 to furnish particulars with
regard to a number of matters which were relevant
for being considered for the grant of a Stage Carriage permit under the Motor Vehicles Act. Both
~he appellant-petitioner Sivarama Reddia.r as
well
as
inter
alia.
the respondent
Gopal
Pillai
furnished
the
required
particulars.
The Particulars supplied by the parties were
checked and verified by designated authorities
and thereafter the State Transport Authority
by an order
on
April
30,
1960
directed
the grant of the permit to the appellant-petitioner
Sivarama Reddiar rejecting the claims of all others
including the respondent Gopala Pillai. Though
the Motor Vehicles Act which had been extended
to Pondicherry included s. 64, whereby persons aggrieved by an order of a State Transport Authority
could file appeals against such order, no appellate
authority had been constituted by the Chief Commissioner. This situation was remedied by a notification by the Chief Commissioner dated May 4,
1960 whereby he constituted himself under s. 68 of
the Act as the appellate authority for the purpose
of exercising jurisdiction under 11. 64 thereof. Several of the aggrieved operators including Gopala
Pillai preferred appeals to the Chief Commissioner.
By an order dated September 5, 1960 the Chief
Commissioner, Pondicherry allowed the appeal of
the respondent GopRla Pillai, set aside the order of
th., State Transport Authority granting the permit
to the appellant Siva.ram a Reddiar and directed that
the permit for the route Pondicherry to Karaikal
be issued in favour of the respondent Gopala Pillai.
Writ Petition 293 of 1960 has been filed to 11ecure
the setting aside of this order of the Chief Commissioner on the ground that the order violates the
fundamental rights guaranteed to the petitioner b;y
1961
N, M1sthan S.Jiib
••
Chi,j Commissioner,
Pondicherry
.4yyangar J.
1961
N. M as<han Saliib
v.
':hie f Commissioner,
Pondichtrryj
A))'antar J,
986 SUPREME COURT REPORTS [1962] SUPP.
Part III of the Constitution and Civil Appeal No. 43
of 1961 is directed to obtain the same relief. It is not
necessary at this stage to set out. the facts of the
other appeal and petition by Masthan Sahib, because
except that the route is different and so are the
grounds on which the order of the Chief Commissioner is sought to be impu11ged, the other material
facts relevant for the consideration of the preliminary point to which we adverted are exactly the
same.
The preliminary objection that is raised to the
entertainment of the appeal is shortly as follows :
.Art. 136 (1) of the Constitution under which
the appellant has obtained special leave reads :
"136 (1). Notwithstanding anything
in this
Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from
any judgment, decree, determination, sentence
or order in any cause or matter passed or
made by any court or tribunal in the territory
of India."
In order, therefore, that this Court might have
jurisdiction to entertain the appeal it is a prerequisite that the Court or tribunal from whose judgment or order the appeal is preferred should be one
in the territory of India. It is urged on behalf of
the respondent that Pondicherry is not part of the
territory of India, with the con~equence that the
Chief Commissioner whose order is impugned in the
appeal is not "a Court or tribunal in the territory of
India." The question thus raised is of great poli·
tical and constitutional significance and it is not
disputed that if this area were not part of the terri·
tory of India, this Court would have no jurisdiction
in the absence of any legislation by Parliament
under Art. 138 ( l), and the Civil Appeal would have
to be dismissed as incompetent.
It was common ground that this was the posi·
tion in regard to the maintainability of the appeal
4
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.:.._~
(1) S.C.R.
SUPREME COURT REPORTS
987
,
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but in regard to the Writ Petition Mr. Vishwanatha.
Sha.stri-learned Counsel for the petitioner-sought
to sustain its maintainability on slightly different
grounds. He invited our attention to the terms of
Art. 12 of the Constitution which reads:
"In this Part, unless the context otherwise requires, "the State" includes the Government
and Parliament of India and the Government
and the Legislature of each of the States and
all local or other authorities within the terri·
tory of India or under the control of the
Government of India."
Learned Counsel pointed out tha.t for the purpose
of the exercise of this Court's powers under Art.
32 of the Constitution for the enforcement of the
fundamental rights its jurisdiction was not limited
to the authorities functioning within the territory
of India but that it extended also to the giving of
directions and the issuing of orders to authorities
functioning even outside the territory of Indi11.,
provided that such authorities were subject to the
oontrol of the Government of India. This submission
appears to us well-founded and that the powers of
this Court under Art. 32 of the Constitution are not
circumscribed by any territorial limitation. It extends not merely over every authority within the
territory of India but also those functioning outside
provided that such authorities are under the control of the Government of India.
The po.wer. conferred on this Court by Part III
of the Const1tut1on has, however, to be read in conjunction with Art. 142 of the Constitution which
reads:
"142 (1) The Supreme Court in the exercise of
the jurisdiction may pass such decree or make
~uo~ or~r as is necessary for doing complete
JUSt1ce m any cause or matter pending before
it, and any decree so passed or order so made
shall be enforceable throughout the territory
1961
N. Mastlian Sahib
v.
Chi.f Commissiolllf,
Pontfich1rry
A.,,..,., J.
1961
N. !4.astha,, Sahib
v.
ChUJ Commijsioner,
Pondielurry
Ayyangat J.
)>
988 SUPREME COURT REPORTS [1962] SUPP.
~---
of India in such manner as may be prescribed
by or under any law made by Parliament and
until provision in that behalf is so made, in
such manner as the President may by order
prescribe.
(2) Subject to the provi:-ions of any law made
in this behalf by Parliament, the Supreme
Court shall, as respects the whole of the territory of India, have all and every power to
make any order for the purpose of securing
the attendance of any person, the discovery
or production of any documents, or the investigation or punishment of any contempt of
itself."
It would be seen that Art. 142 brings in a limitation
as regards the territory which the orders or directions
of this Court could be enforced.
It is manifest
that there is an anomaly or a discordance between
the powers of this Court under .Art. 32 read with
Art. 12 and the executability or enforceability of
the orders under Art. 142. It is possible that this
has apparently arisen because the last words of
Art. 12 extending the juri1diction of this Court
to authorities "under the control of the Government
of India" were added at a late stage of the constitution making while Arts. 142 and 144, the latter
reading:
"All authorities, civil and judicial, in the
territory of India shall act in aid of the
Supreme Court".
were taken, in whole or in part, from s. 210 of the
Government of India Act, 1935 and that no necessary changes were made in Art. 142 to bring it
into line with Art. 12 as it finally emerged and
the powers of this Court under Art. 32.
But this
however oflers us no solution to the question which
is whether, in view of the limitation imposed by
Art. 142 on the area within which alone the directions or orders of this Court could be directly
•
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"'--'- ·(I) S.C.R. SUPREME COURT REPORTS
989
I
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•
enforced, the Court could issue a writ in the
nature of certiorari or other appropriate writ or
direction to quash a quasi-judicial order passed
by an authority outside the territory of India,
though such authority is under the control of the
Government of India.
If the order of the authority under the control of the GovArnment of India
but functioning outside the territory of India. was
of an executive or administrative nature, relief
could be afforded to a. petitioner under Art. 32 by
passing suitable orders against the Government of
India directing them to give effect to the decision
of this Court by the exercise of their powers of
control over the authurity outside the territory of
India..
Such an order could be enforceable by
virtue of Art. 144, as also Art. 142. But in a case
where the order of the outside authority is of a
quasi-judicial nature, as in the case before us,
we consider that resort to such a procedure is not
possible and that if the orders or directions of
this Court could not be directly enforced against the
authority in Pondicherry, the order would be ineffective and the Court will not stultify itself by passing
such an order .
In these circumstances it becomes imperative
that we should ascertain the constitutional and
political status of Pondicherry in relation to the
Union of India. Certain documents have been placed before us and in particular an agreement dated
October 21, 1954 entered into between the Government of India and of France by which the adminis-
- 1
tration of Pondioherry was ceded to the Government of India.
Mr. Viswanatha Sastri, learned
Counsel for the appellant-petitioner contended that
on the terms and convenants contained in this
agreement, Pondioherry was a part of the territory
of India.
On the other hand, Mr. Chari-learned
Counsel for the respondents urged that the reservations contained in the agreement were such as to
preclude the Court from reaching the conclusion
1'~1
N. M asthan Sohi6
v.
O/,ief CommUsiotllf',
Pondiche"y
Ayyangar J.
1981
N. Mmthan Sahib
v.
Clrilf Commissioner,
Pandi<htrry
A.vllllgar J.
990 SUPREME OOURT REPORTS [1962] SUPP. , i..-"·
that there had been a. transfer of complete sovereignty, which according to him was necessary in
order to constitute the area. a.s part of the territory
of India. The learned Solicitor-General who appeared in response to the notice to the Union of India,
submitted that the Union Government was agreeable to the respective contentions urged by the
parties being decided by the Court.
We have considered the matter urged before
us with great care and desire to make the following observations: So far as the Constitution of
Im'· d is cc;ncerned, we have an express definition of
w nat the phrase "territory of India" means.
Art.
1 (3) enacts :
"l. ( 3)
The territory of India. shall comprise -
(a) the territories of the Stu,tes;
(b) the Union territories specified in the
First Schedule ; and
(c) such other territories as may be acquired."
There might be little difficulty about locating the
territories which are set out in els. (a) & (b) but
when one comes to (c) the question arises as to
when a territory is "acquired" and what constitutes
"acquisition". Having regard to the subject dealt
with, the expression "acquired" should be taken
to be a reference to "acquisition" as understood
in Public
International Law.
If there were
any public notification assertion or declaration by
which the Government of this country had declared or treated a territory as part and parcel of the
territory of India, the Courts would be bound to
recognise an "acquisition" as having taken place,
with the consequence that that territory would be
part of the territory of the Union within Art.1(3)(c).
In the present case, we have this feature that the
administration of the territory is being conducted
under the powers vested in the Government under
the Foreign Jurisdiction Act.
The preamble to
that Act recites that it was :
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-~-1 (1) S.C.R. SUPREME CJOURT REPORTS
991
"An Act to provide for the exercise of
certain foreign jurisdiction of the Central
Government".
and accordingly the e::q:iression "foreign jurisdiction"
is defined in its s. 2(&) to mean "the jurisdiction
which the Central Government has for the time
being in or in relation io any territorv outside
India.'' Thus this would prima facie show that
' Pondicherry has not been ''acquired" but still
~ntinues to be outside the territory of India.
In
*r opinion, however, though this might be
very strong evidence th1t the territory has not been
"acquired" and so not part of the "territory of
India", it is still not conclusive.
In this state of
circumstances two courses would be open to us:
(1) to decide for our11elves on the material that bas
• been placed before us in the shape of the agreement
between the two Governments etc. Whether Pondicherry has been "acquired" so as to become part
of the territory of India, or (2) to invoke the assistance of the Government of India by inviting
them to state whether the territory has been acquired within Art. 1(3) of the Constitution and whether
• Pondicherrv is thus now part of the "territory of
India". We originally_ proposed to avail IWlelves
only of the procedure indicated in s.6 of the ?o"reign
Jurisdiction Act 1947 which enacts:
-i
"6. (1) If in any proceeding, civil or
criminal, in a Court established in India or
by the authority of the Central Government outside India, any question arises
as
to
the
existence
or extent
of
any foreign
jurisdiction
of the Central
Government, the Secretary to the Government
of India in the appropriate department shall
on the application of the Court,' send to th~
Court the decision of the Central Government
on the question, and that decision shall for
the purposes of the proceeding be final.
IHI
N. M ul/ra• B•lli6,
v.
C/tuf Commissio"'!,
PonJiehmy
A,, .. ,.,J.
-
1961
N. 11 asthan Sahib
v.
Chkj Commissioner,
Pondichmy
A.JJ""l• J.
992
SUPREME COURT REPORTS [1962] SUPP.
,,,_..
(2) The Court shall send to the said Seoretary
in a document under the seal of the Court or
signed by a Judge of the Court, questions
framed so as properly to raise the question,
and
sufficient
answers to those
questions shall be returned to the Court by the
Secretary and those answers shall on production thereof be conclusive evidence of the
~
matters therein contained."
•
But the learned Solicitor-General very properly
pointed out that an answer to the question which
could be referred under this provision would relate
merely to "the existence or extent of jurisdiction"
and that information on these points might not be
sufficient to solve the problem posed by the
preliminary question raised in the appeals and
petitions as to whether Pondicherry is a part of '
the "territory of India" or not. We agree with
the learne<l Solicitor-General that information
relating to the "existence or extent" of the jurisdiction exerciseable by the Union Government in the
territory might not completely solve the question
for our decision as to whether Pondicherry is part
of the territory of India or not, but still if the •
extent of the jurisdiction veEted in the Union
Gove~nt by the arrangements entered into
between the two Governments virtually amounts
to a transfer of sovereignty for every practical
purpose, it would be possible to contend that such
a transfer or cession was so incompatible with the
existence of any practical sovereignt,y in the French
Government as to detract from the surrender or t -
transfer being other than complete. It is for this
reason that we consider it proper to exercise the
powers vested in the Court under s. 6 of the }foreign
Jurisdiction Act,
It would be observed from what has been
stated above that it would be more satisfactory
and more useful for the disposal of the proceedings
(J) S.C.R. SUPREME COURT REPORTS
993
before us if we ascertain from the Union Government an answer to the question whether they do or
do not consider that Pondicherry is. part of the
territory of India. We have only to add that on
the decisions in England, the Court has jurisdiction
to invite the Government to assist it by information
as to whether according to Government any
territory was part of Her Majesty's Dominion or
' not (vide The Fagernes L. R. 1927 Probate 311).
Besides, the learned Solicitor-General agreed thai
the Government would assist us by answering our
reference. In view of the matters set out above we
direct that the following questions shall be forwarded to the Union of India under the seal of this
Court for the submission of their answers :
(1) Whether Pondicherry which was a former
' French Settlement is or is not at present comprised
within the territory of India as specified in Art. I ( 3)
of the Constitution by virtue of the Articles of the
Merger Agreement dated October 21, 1954 between
the Governments of India and France and other
relevant agreements,
arrangements,
act1 and
conduct of the two Governments.
'
(2) If the answer to Question 1 is that
Pondicherry is not within the territory of India,
what is the extent of the jurisdiction exercised by
the Union Government over the said territory and
whether it extends to making all and every arrangement for its civil administration, its defence and in
regard to its foreign affairs. The Government of
India might also state the extent of jurisdiction
' i
which France possesses over the area and which
operates as a diminution of the jurisdiction ceded
to or enjoyed by the Government of India.
On the receipt of the answers to these
que1tions the appeals will be posted for further
hearing.
S111,x1R J.-Four matters came up for hearing together. Two of these are appeals brought with leave
1951
JV. Masthan So/lib
••
ChU/Commission•r,
Pondich.1T.J
.fJ!1ongOT J•
--
--~~- --·
994
SUPRE~IE COURT REPORTS [1962] SUP!'.
granted by this Court and two are petitions under
.v. Masthan Sahib
Art. 32 of the Constitution. One appeal and one
petition are by one party and the other appeal and
petition are by another. The appeal and the
Sarkar-J. - -,'petition by each party challenge an order made by
1961
v.
Chitf Commi.rsioner.
Pondiclurry
•
· the Chief Commissioner of Pondicherry under the
Motor Vehicles Act, HJ39.
Each of the two orders
challenged was ma.de on applications for the grant
of bus permits. By one of the orders a. permit for
a c:ertain route had been given to a person other
than one of the parties who has moved us, in
preference to him. By the other order, similarly,
-the claim of the other party movivg us, to a permit
for a different route was rejected;- All- the matters
raise substantially the same question concerning
the validity of the Chief Commissioner's orders.
Now, Pondicherry was earlier a French posses·
sion administered by the Government of France.
By an agreement between _ the Governments of
India and France, the administration of Pondi·
'cherry· was transferred to the Government of
India as from November l, 1954. The Government
_ of India had been exercising power in Pondicherry
since, under the Foreign Jurisdiction Act, 194 7.
The Chief Commissioner of Pondicherry is an officer
of the Government of India appointed under the
powers derived as a result of the agreement.
With regard to the appe11.ls, a. question aro3e
- at the hearing before us_ as to whether they were
competent. The appeals had been filed with
leave granted under Art. 136 of the Constitution. It
was said that the appeals were incompetent be-
: ·cause Pondicherry was outside the Indian territories and under Art. 136 no appeal from any
-court outside such territories lay to this Court.
It was, however, contended on behalf of the appellants that
since - the
Inclo-French agreement
or very soon
thereafter, Pondicherry became
p11.rt of the Iriclian territories as a territory acquired by India and, therefor£'_. t]Jf' arrrr. 1:- '"HJ
,
•
• 'I
t
•
::I
l
l
•
'
(1) S.C.R. SUPREME COURT REPORTS
995"
competent. As the most satisfactory way of
deciding the question whether Pondicherry is within India or not is to seek information from the
Government on the point, the majority of the
members of the bench are of opinion that the
Government of India should be approached to
enlighten us about it.
The learned SolicitorGeneral, appearing for the Government, ha.a not
objected to this procedure being adopted.
With regard to the Petitions under Art. 32,
it was contended that the Chief Commissioner of
Pondicherry was a State within the meaning of
Art. 12 of the Constitution as under that article
&ny authority under the control of the Government of India outside the territory of India was
a St&te for the purpose of Part III of the Constitution. On this basis it was contended on behalf
of the petitioners that the pt'titions under Art. 32
uking for certain writs to quash the orders of the
Chier Commissioner of Pondicherry were alllo
competent. A further question then arises aa to
whether in view of Art. 142 of the Constitution the
writs, if issued, could be enforced against an au-
~ority under the control of Government of India
at Pondicherry, if Pondicherry was outside India
and if they could not, whether the Court should
issueithe writs as it would only be stultifying itself
by doing so.
It seems to us that it is unnecessary to
~eoide these questions at this stage, for we are gomg to ask the Government to inform us whether
Po~dioherry. w~s at the relevant time part of
Indian terr1tor1es. If the Government inform u1
~at Pondichei:y was part. of India, then no quest1~n. would a~1se concermng the powers or juried1ct1on of th18 court in any of the matters now
before us. If the information from the Governme!1t is that. Pondicherry is not within the territone1 of India, that will, in our opinion, be the
1961
N, Masthan Sahib
v.
Chkf Commissittntr,
Pondilherry
SarkOT J,
1961
N. Mast.Ian Salii6
v.
Chi.f Commission, r,
J> .. dic,,,,,y
a1k01 J.
996
SUPREME COURT REPORTIS [19112] SUPP.
~
proper time to consider whether the Court oan
still give the p(·titioners the relief which they
ask.
These cases involve other questions of dilliculty and importance on which it would be proper,
in our view, to make a pronouncement after the
Government of India's answer to our request is
received.
As to none of these are indeed any
question arising in these cases we express any '
opinion. at this stage.
We wish, however, to
observe now that it seems to us exceedingly strange
that if this Court finds that a party's fundamental
right has been violated, from which it would follow
that that party has a right to move this Court
under Art. 32 and to obtain the necessary writ,
this Court could refuse to issue it for the reason
that it would' thereby be stultifying itself. If a •
party is entitled to a writ under Art. 32, then we
are not awarfl that there is any discretion in the
Court to refuse the writ on the ground that the wri~
cannot be enforced. Even assuming that in view
of Art. 142 of the Constitution, a writ cannot be enforced outside India-as to· which we pronounce
no opinion now-might is not be said with justi-
, '
fication that it is not necessary for us to be unduly
pressed by considerations of the difficulties of the
enforcement of the writ and that if ·would be
reasonable for us to think that the Government of
India has sufficient respect for this Court to do
all that is in its power to give effect to this Court's
order, whether or not there might be technical
dilliculties in the way of its enforcement by this t ...,
Court. In view of these doubts; we are unable,
as at present advised, to concur in the opinion
expressed in the Judgment of the majority of the
learned
Judges
constituting the Bench that
Art .. 142 stands in the way of this Court iBBuing
a writ under Art. 32 in this case.
We would
'reserve our opinion till a later stage and till it becomes necessary to expresa any opinion at alL
•
•
(1) S.C.R.
SUPREME OOURT REPORTS
997
1gs1
BY CouRT: We direct that the two questions set out in the
majority judgment be forwarded to the Union of India under the seal of
this Court for submission of their answers.
N. Mast"4n Sc.\w
v.
Chilf Commissitfur,
On receipt of the amwers to the questions the
appeals will be posted for further hearing.
The Judgment of Gajendragadkar, Wanchoo
and Ayyangar, JJ., was delivered by Ayyangar J.
The Judgment of Sarkar and Das Gupta, JJ., was
delivered by Sarkar J.
AYYANGAR, J.-In compliance with our directions the two questions were forwarded to the
Union Government
and they submitted
their
answers to them in the following terms:
"Questian No. (1)-Whether Pondicherry
which was a former French Settlement is or
is not at present comprised within the territory
India as specified in Article 1(3) of the
Constitution by virtue of
th~ Articles of the
Merger Agreement dated October 21, 195i
between the Governments of India and France
and other relevant agreements; arrangements,
acts and conduct of the two Governments .
Answer--The French Settlement (Establishment) of Pondicherry is at present not comprised
within the territory of India as specified in clause (3)
of Article l of the Constitution by virtue of the
Agreement dated the 21st October, 1954, made
between the Go-vernment of :France and the Government of India or by any other agreement or
arrangement. By the aforesaid Agreement, dated
the 2;lst October, J 954, the Government of France
transferred, and the Government of India took over,
administration of the territory of all the
French
Establishments in India, including Pondicherry,
with effect from the 1st November, 1954. A copy
of the Agreement is enclosed. This is expressed to
be & 4e facto transfer and was intende4
~o \l\l
'•""""'"'
s.ur J,
1961
N. M asthan Sahib
v.
Chief Commissioner,
Pondiche"y
AyyangarJ.
998 SUPREME COURT,REPORTS [1962) SUPP.
_.--..-
followed up by a de jure transfer. A treaty of
Cession providing for de jure transfer has been
signed by the Government of France and the
Government of India on the 28th May, 1956, but
has not been so fa:r ratified in accordance with the
French Law as well as in accordance with the article
:n of the Treaty. A copy of the Treaty is also
enclosed. The Government of India has been
administering
Pondicherry under
the
Foreign
Jurisdiction Act, 1947, on the basis that it is
outside India and does not form part of the territory
of India.
Question No.( 2)-If the answer to question
1 is that Pondicherry is not within the
territory of India, what is the extent of the
jurisdiction exercised by the Union Government over the said territory and whether it
extends to making all and every arrangement
for its civil administration, its defence and in
regard to its foreign affairs. The Government
of India might also state the extent of jurisdiction which France posseBSes over the area and
which operates as a diminution of the jurisdiction ceded to or enjoyed by the Government of
India.
Answer-The Government of India has been
exercising full jurisdiction over Pondicherry in executive, legislative and judicial matters in accordance
with Foreign Jurisdiction Act, 1947. In doing so it
has followed the aforesaid Agreement. The Government of France has not also exercised any executive,
legislative or judicial authority since the said
Agreement.
The jurisdiction of the Government of India
over Pondicherry extends to making all arrangements
for its civil administration. The administration of
the territory is being carried on under the Foreign
Jurisdiction Act, 1947, and in accordance with the
French Establishments (Administration} Order, 1954,
, .
'
'
•
-~·
(l} S.C.R.
SUPREME COURT REPORTS
999
1961
and other Orders made under sections 3 and 4 of that
Act. The Government of India have been aiming at
conducting the administration of Pondicherry so as
to conform to the pattern of administration obtaining
to in India consistent with the said Agreement. Accordingly a large number of Acts in force in India have
already been extended to Pondicherry.
.iY. Masthan 81.hib
v.
Cbit.f Commissio111f',
P ondicherry
The Government of India hold the view that
the sole responsibility in regard to arrangements
for the defence of
Pondicherry devolves on
themselves.
Pondioherry has no foreign relations of its own.
No claims have been made by the Government of
France in this matter nor have the Government of
India recognized the existence of any such claim.
The Government of France do not possess any
de facto
jurisdiction over Pondicherry which would
imply any diminution of the jurisdiction exercised by
the Government of India."
The appeals and the writ petitions were thereafter posted for further hearing before us on October
9, 1961.
Mr. N. C. Chatterji-learned Counsel for Shri
Masthan Sahib, appellant in Civil Appeal No. 42 of
1961 and petitioner in writ petition No. 297 of 1960,
urged before us two contentions. The first was that
the answer to the second question clearly established that the French establishments incbiding Pondicherry were part of the territory of India, having
been acquired by the Union Government within the
meaning of Art.
1(3)( c) and that in view of this
position it was not necessary to consider nor proper
for us to accept the views expressed by the Union
Government in their answer to the first question
wherein they had expressly stated that they did not
consider the French "establishments" covered by
the agreement between the Union Government and
the Government of France dated October 21, 1954
as being within the territory of
India within
Ayyangar J.
11161
N. M asth,n Sahib
v.
CAilf Commiss~tur
'l> .. dieh'"y
AyyonglWJ.
1000 SUPREME COURT REPORTS [1962] SUPP. .-
Art.1(3) of the Constitution of India. Secondly, a. po·
int which was necessarily involved in the first one just
set out-that this Court was not bound bv the sta.tement of the Government of India in its ·answer to
Question No. land that it should disregard such an
answer and investigate for it8elf on the materials
placed before it as to whether Pondicherry was part
of th'· territory of India or not.
In support of the first submission Mr. Cha.tterji
,
placed considerable reliance on the passage in our
judgment rendered on April 28, 1961 reading :
"Still if the extent of the jurisdiction vested
in the Union Government by the arrangements
entered into between the two Governments
virtually amounts to a transfer of sovereignty
for every practical purpose, it would be possi.
hie to contend that such a transfer or cession ,
was so incompatible with the existence of any
prautical sovereignty in the French Government as to detract from the surrender or t.ransfer being other than complete."
The argument was that the anPwer to the
second question showed
( 1) positively that the
Government of India exercised complete jurisdiction •
over the territory-executive, legislative and judicial, its authority being plenary and extending to
the making of laws. Their execution and the administration of justice with complete power over its
defence and foreign affairs and (2) negatively that
the Government of France possessed no authority
4
in the territory, so much so that it could not be
predicated that there
had been any retention of '--=
even a. vestigal
sovereignty to detract from the
completeness of the transfer. In the circumstanoes,
learned Counsel urged that he was justified in inviting us to ignore or disregard the answer to the
first question and instead answer the question as to
whether these .l<'rench establishments were within
the territory of India or not on the basis of the
second question.
a
( 1) S.C.R. SUPREME COURT :REPORTS
1001
Having regard to the nature of this argument
it is necessary to state briefly the circumstances in
which we felt it necessary to frame the two questions
that we did.
At the stage of the hearing of the
petitions on the first occasirin, notice was issued t<>
the Union Government and the learned Solicitor·
General appearing in response to the notice did not
• convey to us arty definite views on the part of the
Government as to whether Pondicherry was or was
not considered by t·hem to be part of the territory
of India hut invited the Court to decide th0 ques·
tion on the materials that might be placed by the
parties before us.