# The appeal is allowed with costs here and in the v. High Court

- **Citation:** [1961] 2 S.C.R. 828
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-appeal-is-allowed-with-costs-here-and-in-the-v-high-court-2052
- **Pages:** 46

## Headnote

828
SUPREME COURT REPORTS
[1961]
r960
the question will now be answered in the negative. As
already stated, there is no need to answer the second
The Conirnissioner
.
h' h d
t
·
. of Juconie-tax,
question, W lC
OeS IlO
arl~e.
Bambay
The appeal is allowed with costs here and in the
v.
High Court.
Jl.1 /s. Dwarkadas
J(hetan .s- Co.
Appeal allowed.
_Hidayatullah } ,
Dece111ber I.
LT. COL. KHAJOOR SINGH
v.
THE UNION OF JftDIA & ANOTHER.
(B. P. SINHA, c. J., J. L. KAPUR,
P. B. GAJENDRAGADKAR, K. SUBBA RAO,
K. N. WANCHOO, K. C. DAS GUPTA and
J. c. SHAH, JJ.)
Fundamental Right, Enforcement of-Power of High Court to
issue writs against the Government of India-Constitution of India,
Arts. 3z(2A). 226.
The High Court of Jammu and Kashmir, relying on the
decisions of this Court in Election Commission, India v. Saka
Venkata Subba Rao, [1953] S.C.R. rr44 and K. S. Rashid and Son
v. The Income Tax Investigation Commission etc., [1954] S.C.R.
738, dismissed an applicatbn for a writ made by the appellant
against the Union of India and Anr. under Art. 32(2A), the relevant provisions of which are in the matter of enforcement of
fundamental rights the same as in Art. 226 of the Constitution,
on the preliminary objection that the said application was not
maintainable against the Union of India as it was outside the
territorial jurisdiction of that Court. The appellant's case was
that he was holding the substantive rank of Lieut. Col. in Jammu
and Kashmir and had the right to continue in service until he
attained the age of 53 on November 20, r96r, but was prematurely retired by a Jetter issued by the Government of India on
July 31, 1954, without any allegation or charge and in contravention of Art. 16(r) of the Constitution.
Held, that there can be 'no doubt as to the correctness of
the decisions relied on by the High Court and the appeal must
fail.
2 S.C.R. SUP!tEME COURT REPORTS
829
The jurisdiction of the High Court under Art. 226 of the
Constitution, properly construed, depends not on the residence
or location of the person affected by the order but of the person or authority passing the order and the place where the
order has effect cannot enter into the determination of such
jurisdiction. Since ft:inctioning of a Government really means
giving effect to its order, such functioning cannot determine the
meaning of the words "any person or authority within these
territories" occurring in the article .. A natural person, therefore, is within those territories if he resides there permanently
or temporarily, an authority other than the Government is
within those territories if its office is located there and a Government if its seat from which, in fact, it functions is there.
It is not correct to say that the word "authority" in
Art. 220 cannot include a Government. That word has to be
read along with the clause "including in appropriate cases any
Government" immediately following it, which, properly construed, means, that the word may include any Government in an
appropriate case. That clause is not connected with the issuance of a writ or order and is not intended to confer discretion
on the High Courts in the matter of issuing a writ or direction
on any Government, and only means in such cases where the
authority against whom the High Court has jurisdiction to
issue the writ, happens to be a Government or its subordinates,
the High Court may issue a writ against the Government.
Election Commission, India v. Saka Venkata Subba Rao,
[1953] S.C.R. n44 and K. S. Rashid and Son v. The Income-tax
Investigation Commission etc., [1954] S.C.R. 738, approved.
Maqbulunnissa v. Union of India, I.L.R. (1953) 2 All. 289,
overruled.
The Lloyds Bank Limited v. The Lloyds Bank Indian Staff
Association (Calcutta Branches), I.L.R. [1954] 2 Cal. I, referred to.
Proceedings under Art. 226 are not suits covered by Art.
300 of the Constitution. Such proceedings provide for extraordinary remedies by a special procedure and there is no scope
for introducing the concep

## Text

_Characters 0–39,805 of 103,826. This is a partial read: ask again with offset=39805 for what follows._

828
SUPREME COURT REPORTS
[1961]
r960
the question will now be answered in the negative. As
already stated, there is no need to answer the second
The Conirnissioner
.
h' h d
t
·
. of Juconie-tax,
question, W lC
OeS IlO
arl~e.
Bambay
The appeal is allowed with costs here and in the
v.
High Court.
Jl.1 /s. Dwarkadas
J(hetan .s- Co.
Appeal allowed.
_Hidayatullah } ,
Dece111ber I.
LT. COL. KHAJOOR SINGH
v.
THE UNION OF JftDIA & ANOTHER.
(B. P. SINHA, c. J., J. L. KAPUR,
P. B. GAJENDRAGADKAR, K. SUBBA RAO,
K. N. WANCHOO, K. C. DAS GUPTA and
J. c. SHAH, JJ.)
Fundamental Right, Enforcement of-Power of High Court to
issue writs against the Government of India-Constitution of India,
Arts. 3z(2A). 226.
The High Court of Jammu and Kashmir, relying on the
decisions of this Court in Election Commission, India v. Saka
Venkata Subba Rao, [1953] S.C.R. rr44 and K. S. Rashid and Son
v. The Income Tax Investigation Commission etc., [1954] S.C.R.
738, dismissed an applicatbn for a writ made by the appellant
against the Union of India and Anr. under Art. 32(2A), the relevant provisions of which are in the matter of enforcement of
fundamental rights the same as in Art. 226 of the Constitution,
on the preliminary objection that the said application was not
maintainable against the Union of India as it was outside the
territorial jurisdiction of that Court. The appellant's case was
that he was holding the substantive rank of Lieut. Col. in Jammu
and Kashmir and had the right to continue in service until he
attained the age of 53 on November 20, r96r, but was prematurely retired by a Jetter issued by the Government of India on
July 31, 1954, without any allegation or charge and in contravention of Art. 16(r) of the Constitution.
Held, that there can be 'no doubt as to the correctness of
the decisions relied on by the High Court and the appeal must
fail.
2 S.C.R. SUP!tEME COURT REPORTS
829
The jurisdiction of the High Court under Art. 226 of the
Constitution, properly construed, depends not on the residence
or location of the person affected by the order but of the person or authority passing the order and the place where the
order has effect cannot enter into the determination of such
jurisdiction. Since ft:inctioning of a Government really means
giving effect to its order, such functioning cannot determine the
meaning of the words "any person or authority within these
territories" occurring in the article .. A natural person, therefore, is within those territories if he resides there permanently
or temporarily, an authority other than the Government is
within those territories if its office is located there and a Government if its seat from which, in fact, it functions is there.
It is not correct to say that the word "authority" in
Art. 220 cannot include a Government. That word has to be
read along with the clause "including in appropriate cases any
Government" immediately following it, which, properly construed, means, that the word may include any Government in an
appropriate case. That clause is not connected with the issuance of a writ or order and is not intended to confer discretion
on the High Courts in the matter of issuing a writ or direction
on any Government, and only means in such cases where the
authority against whom the High Court has jurisdiction to
issue the writ, happens to be a Government or its subordinates,
the High Court may issue a writ against the Government.
Election Commission, India v. Saka Venkata Subba Rao,
[1953] S.C.R. n44 and K. S. Rashid and Son v. The Income-tax
Investigation Commission etc., [1954] S.C.R. 738, approved.
Maqbulunnissa v. Union of India, I.L.R. (1953) 2 All. 289,
overruled.
The Lloyds Bank Limited v. The Lloyds Bank Indian Staff
Association (Calcutta Branches), I.L.R. [1954] 2 Cal. I, referred to.
Proceedings under Art. 226 are not suits covered by Art.
300 of the Constitution. Such proceedings provide for extraordinary remedies by a special procedure and there is no scope
for introducing the concept of cause of action in it in the face
of the express limitation imposed by it, that the person or
authority concerned must be within the territories over which
the High Court exercises jurisdiction.
Ryots of Garabandho v. Zamindar of Parlakimedi, (1943) L.R.
70 I.A. 129, held inapplicable.
The resulting inconvenience of such an interpretation of
Art. 226 to persons residing far away from New Delhi, where
the Government of India is in fact located, and aggrieved by
some order passed by it, may be a reason for suitably amending
the Article but cannot affect its plain language.
This Court should not, except when it is demonstrated beyond all reasonable doubt that the previous ruling, given after
105
Lt. Col. Khnjoor
Singh
v.
The Union of
India & A not her
Ig6o
Lt. Col. Khajoor
Singh
v.
The Union of
India 0-- A not her
830
SUPREME COURT REPORTS
[1961]
due deliberation and full hearing, was erroneous, go back upon
it, particularly on a constitutional issue.
Per Subba Rao, J.-The object that the framers of our Constitution had before them in declaring the fundamental rights in
Part III of the Constitution and empowering the High Courts by
Art. 226 of the Constitution to enforce them would be largely
defeated if a person in a remote part of the country had to come
to·New Delhi to seek the protection of the Punjab High Court
whenever the Union Government infringed his funda1nental
right.
The power of the High Courts under Art. 226 of the Constitution is of the widest amplitude and it can issue not merely
writs but also directions and orders.
The words "any Government" in the Article includes the
Union Government which has no constitutional situs in a particular place and exercises its powers throughout India and must,
therefore, be deemed in law to have functional existence
throughout India and thus within the territories of every State.
Consequently, whon the Union Government infringes the legal
right and interest of a person residing within the territorial
jurisdiction of a High Court, the High Court has the power
under the Article to issue a writ to that Government. If its
orders are disobeyed by that Government or any of its officers,
even though physically outside Its territories, it can proceed in
contempt against them under the Contempt of Courts Act, 1952.
Election Commission, fodia v. Saka Venkata Subba Rao, [1953]
S.C.R. rr44, held inapplicable.
K. S. Rashid and Son v. Income Tax Investigation Commission, (1954] S.C.R. 738 and Ryots of Garabandho v. Zamindar of
Parlakimedi, L.R. 70 I.A. 129, considered.
Maqbul-Un-Nissa v. Union of India, I.LR. (1953) 2 All. 289,
approved.
Surajmal v. State of M.P., A.I.R. 1958 M.P. 103 and Radheshyam Makhanlal v. Union of India, A.LR. 1960 Born. 353, held
inapplicable.
In the instant case, therefore, the High Court had the
power to issue the writ to the Union Government under Art.
32(2A) of the Constitution.
Per Das Gupta, J.-It is neither correct nor appropriate to
speak of location of any Government and there is no satisfactory test for ascertaining the location of the Government of
India. Since the Government functions throughout the territory
of India, the conclusion must be that it is within the territories
under the jurisdiction of every High Court. The words "any
Government" in Art. 226 clearly indicate that the High Court
was intended to give relief aguinst th,at Government as well.
Even though the Government of India is within the territories of every High Court, it will not have to face applications
2 S.C.R. SUPREME COURT REPORTS
831
for relief against the same order in all the High Courts in India.
1960
The words "in appropriate cases" in that Article, properly construed, indicate that there can be only one High Court there- Lt. Col. Khajoor
under that can exercise jurisdiction under the Article for every
Singll
act or omission in respect of which relief is claimed. It is posv.
sible in every case to ascertain the place where the act or omisThe Union of
sion took place and that High Court alone, which exercises India 6- Another
jurisdiction over that place, can have jurisdiction to.grant relief
under the Article.
•
It is not correct , to say that under Art. 226 the cause of
action determines the jurisdiction. Neither that Article nor
Art. 32(2A) of the Constitution is based on that principle.
Election Commission, India v. Saka Venkata Subba Rao, [1953]
S.C.R. n44, approved.
CrvIL APPELLATE JURISDICTION: Civil Appeal No.
37of1955.
Appeal from the judgment and order dated December 7, 1954, of the Jammu and Kashmir High Court
in Criminal Misc. No. 76 of 2011.
V ir Sen Sawhney, for the appellant.
0. K. Daphtary, Solicitor-General of India, B. R. L.
Iyengar, R.H. Dhebar and T. M. Sen, for the respondents.
-
Sardar Bahad,ur, for the intervener.
1960. December 5. The Judgment of Sinha, C. J.,
Kapur, Gajendragadkar, Wanchoo and Shah, JJ., was
delivered by Sinha, C. J. Subba Rao, J. and Das
Gupta, J. delivered separate judgments.
SINHA, C. J.-This appeal on a certificate of fitness
Sinha c. J.
granted by the High Court of Judicature, Jammu and
Kashmir, is directed against the judgment and order
dated December 7, 1954, in an application under Art.
32(2A) of the Constitution for issue of a writ, directions or order against the Union of India, through the
Secretary, Ministry of Defence, New Delhi, as the
first respondent and the State of Jammu and Kashmir
through the Chief Secretary, Jammu and Kashmir
State, as the second respondent.
The petition is based on the following allegations.
The petitioner will be referred to as the appellant in
the course of this judgment. He was aged 45 years
832
SUPREME COURT REPORTS
[1961]
1960
262 days on August 12, 1954. He was holding a reguL c 1 Kh .
Jar commission in the Jammu and Kashmir State
•
1
·
~ingh •
100' Forces, which were amalgamated with the Defence
v.
Forces. of the Union with effect from September 1,
The Union of 1949. The appellant holding the substantive rank of
India &- Another Lieut. Col. in the amalgamated forces had the right to
-
continue in service until he attained the age of 53
~inha c. J.
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, that the authority against whom the
writ is sought, that is to say, respondent No. 1, being
outside the territorial limits of the jurisdiction of the
Jammu and Kashmir High Court, the same was not
maintainable. This preliminary objection was heard
by a Division Bench, (Janki Nath Wazir, C. J. and
M.A. Shahmiri, J.) Jammu and Kashmir High Court.
By its judgment dated December 7, 1954, the High
Court upheld the preliminary objection. The High
Court, relying upon the decisions of this Court in Election Commission, India v. Saka Venkata Subba Rao (1)
and K. S. Rashid and Son v. The Income-tax Investigation Commission etc. ('), held that it had no jurisdiction to issue a writ against the first respondent and,
therefore, dismissed the petition, but the High Court
granted the necessary certificate under Art. 132 of the
Constitution; hence this appeal.
The matter was first heard by a Bench of five
judges. In the course of hearing it became clear to
us that the appellant not only sought to distinguish
(1) [19531 s.c.R. n4.,
(2) [I9l4] S,C,R. 738.
2 S.C.R. SUPREME COURT REPORTS
833
the two decisions aforesaid of this Court, but questioned the correctness of those decisions. Hence this
larger Bench was constituted in order to examine the
correctness of the decisions aforesaid of this Court on
the strength of which the High Court had refused to
entertain the appellant's petition, on merits.
It has been argued on behalf of the appellant, in the
first instance, that the previous decisions of this Court
were distinguishable on the ground that they did not,
in terms, consider the question whether the Government of India was amenable to the jurisdiction of the
High Court under Art. 226 or of the Jammu and
Kashmir High Court under Art. 32(2A) of the Constitution; that those provisions, on a true construction,
would not stand in the way of the appellant, inasmuch
as the Government of India has no location and its
authority is present throughout the Union territory;
that the correct test is whether or not the cause of
action arose within the territorial limits of the High
Court's jurisdiction; that the High Court was in error
in holding that the term "authority" included a
Government.
In answer to these contentions on behalf of the
appellant, the learned Solicitor-General contended
that, on a proper construction of the relevant provisions of the Constitution, it is clear that Sastri C. J.'s
observations relating to "authority" in the case of
Election Commission, India v. Saka Venkata Subba
Rao (1) applied with equal force to Government, m
eluding the Union Government. The Government of
India functions through its officers and, therefore, t4e
locatiori 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
(1) [1953] S.C.R. 1144.
Lt. Col. Khajoor
Singh
v.
The Union of
India & A not her
Sinha C. ].
Lt. Col. Khajoor
Singh
v.
The Union of
India & Another
Sinha C. ].
834
SUPREME COURT REPORTS
[196] J
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 pariticular named
person or authority. Similarly, a writ of certiorari is
directed against a particular record. Therefore, the
writ must issue to someone within the territorial limits
of the High Court's jurisdiction.
The question that we have to determine in this case
is of far-reaching importance and is not a. matter of
first impression.
The question was first raised in this
Court in 1952 and was determined by a Constitution
Bench in the case of Election Commission, India v.
Saka Venkata Subba Rao (1). In that case a writ was
applied for in the Madras High Court for restraining
the Election Commission from enquiring into the
alleged disqualification of the respondent. A single
Judge of the High Court of Judicature of Madras
issued a writ of prohibition restraining the Election
Commission, a statutory authority constituted by the
President of India, with its office permanently located
at New Delhi, when the matter was heard by the
learned single Judge of the High Court. In the High
Court the Election Commission demurred to the jurisdiction of the Court to issue any writ against it on the
ground that the Commission was not within the territory in relation to which the High Court exercised
jurisdiction, apart from other objections. The learned
Judge of the High Court overruled the preliminary
objection and decided the case on merits, and issued a.
writ prohibiting the Commission from proceeding with
the enquiry. The learned Judge granted the certificate under Art. 132 that the case involved a substantial question of law as to the interpretation of the
Constitution. The Election Commission accordingly
came up in appeal to this Court and challenged the
jurisdiction of the Madras High Court to issue the
writ it had purported to do. This Court overruled the
contention on behalf of the respondent which was
(1) [1953] S.C.R. 1144.
2 S.C.R. SUPREME COURT REPORTS
835
based on the decision of the Privy Council in the
Parlakimedi case (1) that the jurisdiction of the High
Court to issue a writ is analogous to the jurisdiction
of a court to grant a decree or order against persons
outside the limits of its local jurisdiction, provided
that the cause of action arose within those limits.
This Court overruled that contention 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".
The Constitution Bench in that case considered that
the language of Art. 226 of the Constitution was "reasonably 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 (g).
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 miscellaneous matters, in which
the High Court had been moved under Arts. 226 and
227 of the Constitution praying for quashing proceedings started against the appellants under the Taxation on Income (Investigation Commission) Act (XXX
of 1947). It was prayed in the High Court that a writ
of prohibition might issue against the Income-Tax
(1) (1943) L.R. 70 I.A. 129.
(2) [1954) S.C.R. 738.
1960
U. Col. Khajoor
Singh
v.
The Union of
India & A not her
Sinha C. ].
1960
Lt. 'Col. Khajoor
Singh
v.
The Union of
India & Another
Sinha C. ) 1•
836
SUPREME COURT REPORTS
[i961)
Investigation Commission directing it not to proceed
with the investigation of cases referred to it under the
provisions of the Act. The writ petitions in the High
Court were opposed on behalf of the Commission on
a number of grounds, one of them being that the Punjab High Court had no jurisdiction to issue the writs
prayed for under Art. 226 of the Constitution, simply
because the Commission was located in Delhi. Reliance was placed on behalf of the Commission on the
decision of the Privy Council in the Parlakimed,i
case(') that the substance of the matter was that the
assessees against whom the investigation had been
started belonged to U. P. and all the assessment proceedings, including reference to the High Court, would
lie in Uttar Pradesh. The High Court gave effect to
this contention and dismissed the application primarily on the ground that the High Court had no jurisdiction to issue the writ to the Commission. The asses.
sees came up in appeal to this Court, and this Court
substantially adopted the reasons given by it in its
previous judgment in the case of Election Commission,
India v. Saka Venkata Subba Rao('). Itis to be noted
that when the High Court of Punjab decided the case,
the decision of this Court referred to above had not
been given. Relying upon its previous decision, this
Court held that the Punjab High Court was in error
in holding that it had no jurisdiction to deal with the
matter under Art. 226 of the Constitution. The appeal
was dismissed by this Court on other grounds, not
material to this case.
Learned counsel for the appellant has contended
that the two decisions of this Court referred to above
are distinguishable from the facts of the present case,
inasmuch as in those cases the Election Commission
and the Income-tax Investigation Commission were
statutory bodies, which had their location in Delhi,
and, therefore, this Court held that the Punjab High
Court was the High Court within whose jurisdiction
those bodies functioned and had their location and
were, therefore, amenable to its jurisdiction.
He
further contended that the Union Government functioned throughout the territory of India and could
(I) (1943) L.R. 70 I.A. 129.
(z) [1953] S.C.R. 1144.
2 S.C.R. SUPREME COUR'l' REPORTS
837
not be said to be located only in Delhi simply because
1 960
the capital for the time being was in Delhi.
In -
this connection, strong reliance was placed on the Lt. Col. Khajoor
decision of the Full Bench of the Allahabad High
s;:~h
Court in Maqbulunnissa v. Union of India (1).
That
The Union of
case does lend a great deal of support to this conten- Jndia & Another
tion on behalf of the appellant. It was held by the
High Court in that case that the words "any GovernSinha c. J.
ment" in Art. 226(1) of the Constitution clearly indicated that the Allahabad High Court had jurisdiction
to entertain the fetition under Art. 226, not only
against the State o 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 would be the residence of the petitioners
a.nd the effect of the impugned order upon them. After
holding that the High Court had the jurisdiction to
entertain the petition, the Court dismissed it on other
grounds, not material to this case. The Allahabad
High Court distinguished the decision of a Division
Bench of the Calcutta High Court dated January 17,
1951, in the case of The Lloyds Bank Limited v. The
Lloyds Bank Indian Staff .Association (Calcutta Branches) (2) which was unreported till then. In that case,
Harries, C. J., speaking for the Court, had held that
though Art. 226 of the Constitution had gone beyond
the English practice by providing that writs in the
nature of prerogative writs could issue even against a
Government, that Government must be located within the territorial limits of the Court which was moved
to exercise its power under that Article. He further
observed that the Government of India could not be
said to be located in the State of West Bengal and,
therefore, writs under Art. 226 could not issue against
that Government by the High Court of Calcutta. That
(1) I.L.R. (1953) 2 All. 289.
1o6
(2) l.L.R. [1954] 2 Cal. I.
838
SUPREME COURT REPORTS
(1061]
decision of the Calcutta High Court was distinguished
by the Allahabad High Court on the ground that "the
Lt. Col. Khajoor
....,
effects of the orders of the Union Government were
Singh
v.
The lfnio11 of
India & Another
Sinha C . .f.
not operative within the jurisdiction of the Court".
It may be added that that decision came up in appeal
to this Court in Civil Appeal No. 42 of 1952 but the
appeal was dismissed by this Court by its judgment
dated April 20, 1952, on other grounds. It will be
noticed that when the All11habad decision, so strongly
relied upon by t,he appellant, was given, the two decisions referred to above of this Court were not there.
The Allahab11d High Court may not have given that
judgment if the two decisions of this Court had then
been in existence.
The two main questions which arise, therefore, are:
(i) whether the Government of India as such can be
said to have a location in a particular place, viz., New
Delhi, irrespective of the fact that its authority extends over all the States and its officers function
throughout India, and (ii) whether there is any scope
for introducing the concept of cause of action as the
basis of exercise of jurisdiction under Art. 226. Before,
however,-we deal with these two main questions, we
would like to clear the ground with respect to two subsidiary matters which have been urged 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.
2 S.C.R. SUPREME COURT REPORTS
839
To connect this clause with the issuance of a writ or
ry6o
order and to suggest that in dealing with cases against Lt c 1---;., .
h H. h C
h
d "d
h th
'
0 · "''a;oor
Government t e
ig
ourt
as to ec1 e w e er
Singh
the case is appropriate for the issue of the order is
v.
plainly not justified by the rules of grammar.· We
T~• Union of
have no hesitation in holding that the said clause goes llldia & Another
with the word "authority" and that its effect is that
-
the authority against whom jurisdiction is conferred
Sinha c. 1·
on the High Court to issue a writ or appropriate ofder
may in certain cases include a Government. Appropriate cases in the context means cases in which
orders passed by a Government or their subordinates
are challenged, and the clause therefore means that
where such orders are challenged the High Court may
issue a writ against the Government. The position,
therefore, is that under Art. 226 power is conferred on
the High Court to issue to any person or authority or
in a given case to any Government, writs or orders
there specified for enforcement of any of the rights
conferred by Part III and for any other purpose.
Having thus dealt with the two subsidiary points
raised before us, we may now proceed. to consider the
two main contentions which arise for our decision in
the present appeal.
This brings us to the first question, namely, whether
the Government of India. as such can be said to be
located at one place, namely, New Delhi. The main
argument in this connection is that the Governme~t of
India is all-pervasive and is functioning throughout
the territory of India and therefore every High Court
has power to issue a writ against it, as it must be presumed to be located within the territorial jurisdiction
of all State High Courts. This argument in our opinion
confuses the concept of location of a Government with
the concept of its fun<{tioning. A Government may be
functioning all over a State or all over India; but it
certainly is not located all over the Sh1.te or all over
India. It is true that the Constitution has not provided that the seat of the Government of India will be at
New Delhi. That, however, does not mean that the
Government of India as such has no seat where it is
located. It is common knowledge that the seat of the
840
SUPREME COURT REPORTS
[1961]
1960
Government of India is in New Delhi and the GovernLt c 1 Kh .
ment as such is located in New Delhi.
The absence
·
~inch •Joor of a provision in the Constitution can make no differv.
ence to this fact. What we have to see, therefore, is
The Union of whether the words of Art. 226 mean that the person
India &- Another or authority to whom a writ is to be issued has to be
resident in or located within the territories of the
Si11ha C. ].
T
High Court issuing the writ?
he relevant words of
Art. 226 are these-
"Every High Court shall 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 location of the
person affected can have no relevance on the question
of the High Court's jurisdiction. Thus if a person
residing or located in Bombay, for example, is aggrieved by an order passed by an authority located, say, in
Calcutta, the forum in which he has to seek relief is
not the Bombay High Court though the order may
affect him in Bombay but the Calcutta High Court
where the authority passing the order is located. It
would, therefore, in our opinion be wrong to introduce
in Art. 226 the concept of the place where the order
•
2 S.C.R. SUPREME COURT REPORTS
841
passed has effect in order to determine the jurisdiction
I960
of the High Court which can give relief under ~rt. Lt. Col. J(Jtajoor
226. The introduction of such a concept may give
Singh
rise to confusion and conflict of jurisdictions. Take,
v.
for example, the case of an order passed by an authoT~e Union of
rity in Calcutta, which affects six brothers living, say, Tnd•a & Another
in Bombav, Madras, Allahabad, Jabalpur, Jodhpur
•
b
h .
Sinha C. ].
and Chandigarh. The order passed y the aut or1ty
in Calcutta has thus affected persons i~ six States.
Can it be said that Art. 226 contemplates that all the
six High Courts have jurisdiction in the matter of
giving relief under it? The answer must obviously be
'No', if one is to avoid confusion and conflict of jurisdiction. As we read the relevant words of Art. 226
(quoted above) there can be no doubt that the jurisdiction conferred by that Article on a High Court is with
respect to the location or residence of the person or
authority passing the order and there can be no question of introducing the concept of the place where the
order is to have effect in order to determine which
High Court can give relief under it. It is true that
this Court will give such meaning to the words used
in the Constitution as .would help towards its working
smoothly. If we were to introduce in Art. 226 the
concept of the place where the order is to have effect
we would not be advancing the purposes for which
Art. 226 has been enacted. On the other hand, we
would be producing conflict of jurisdiction between
various High Courts as already shown by the illustration given above. Therefore, the effect of an order by
whomsoever it is passed can have no relevance in
determining the jurisdiction of the High .Court which
can take action under Art. 226.
Now, functioning of
a Government is really nothing other than giving
effect to the orders passed by it. Therefore it would
not be r!gh.t to introduce in Art. 226 the concept of
the funct10nmg 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
Lt. Col. f\hajoor
Singh
v.
The Union of
India &- Anol/u1·
Sinh2 C. ].
842
SUPREME COURT REPORTS
[1961]
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
eit.her 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
territ-0ries.
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, there is undoubtedly a seat from which
the Government as such functions as a fact. What
Art. 226 requires is residence or location as a fact and
if therefore there is a seat from which the Government functions as a fact even though that seat is not
mentioned in the Constitution the High Court within
whose territories tha,t Reat is located will be the High
Court having jurisdiction under Art. 226 so far as the
orders of the Government as such arc concerned.
Therefore, the view taken in Election Commission,
India v. Saka Vcnkata Subba Rao (1) and K.S. Rashid
a.ncl Son v. The Income-ta.-r; Investigation Commission(')
that there i3 two-fold limitation on the power of the
High Court to issue writs etc. under Art. 226, namely,
(i) the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction',
that is to say, the writs issued by the Court cannot
run beyond the territories subject to its jurisdiction,
rtnd (ii) the person or authority to whom the High
Court is emnowered to issue such writs must be
"within tho;e territories" which clearly implies that
they must be amenable to its jurisdiction either by
residence or location within those territories, is the
correct one.
This brings us to the second point, namely, whether
(x) ['953] S.C.R. n44.
(Z) [1954] S.C,R. 738.
2 S.C.R. SUPREME COURT REPORTS
843
it is possible to introduce the concept of cause of
r96o
action in Art. 226 so that the High Court in whose Lt c 1•· Kh .
jurisdiction the cause of action arose would be the
· ~lngh aJoor
proper one to pass an order thereunder. Reliance in
"·
this connection has been ' placed on the judgment of
The Union of
the Privy Council in Ryots of Garabandho v. Zarnindar India & Anothar
of Parlakimedi (1).
In that case the Privy Council
held that even though the impugned order was passed
Sinha c. J.
by the Board of Revenue which was located. in
Madras, the High Court would have no jurisdiction
to issue a writ quashing that order, as it had rio
jurisdiction to issue a ·writ beyond the limits of
the city of Madras except in certain cases, and
that particular matter was not within the exceptions. This decision of the Privy Council does apparently introduce an element of the place where the
cause of action arose in considering the jurisdiction
of the High Court, to issue a writ. The basis of that
decision, however, was the peculiar history_of the
issue of writs by the three Presidency High Courts as
successors of the Suprem~ Courts, though on the literal construction of cl. 8 of the Charber 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 ca.use of action could be introduced in Art. 226
was also considered in Saka Venkata Subba Rao's
case (2) 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
. (1) (1943) L.R. 70 I.A. 129.
(2) [1953] S.C.R. n44 .
----------------~----
~
844
SUP.REME COURT REPORTS
[1961]
1960
the accrual of cause of action and to· the jurisdiction
of the High Court depending on the place where the
LI. Col. Khajoor cause of action accrues being within its territorial
Sing/,
·
. v.
jurisdiction. Proceedings under Art. 226 are not smts;
TAe Union of · they provide for extraordinary remedies by a special
India<>- Ano11 .. , procedure and give powers of ·correction to the High
Court over persons and authorities and these special
.Sinha c. J.
powers have to be exercised within the limits set for
them. These two limitations have already been indi- ·
cated by us above and one of them is that the
person or authority concerned must be within: the
· territories over which the High Court exercises Junsdiction. Is it possible then to overlook this constitu- .
tional limitation and say that the High Court can
issue a writ against a person or authority even though
it may not be within its territories simply because the
ca use of action has arisen within those territories?. lt
seems to us that it would be going in the face of the
express provision in Art. 226 and doing away with an
express limitation contained therein if the concept of
cause of action were to be introduced in.it. Nor do we
think that it is right to say that because Art. 300
specifically provides for suits by and against the Government of India, the proceedings under Art. 226 are
also covered by Art. 300. It seems to us that Art. 300
which is on the same line as s. 176 of the Government
of India Act, 1935, dealt with suits as such and proceedings analogous to or consequent upon suits and
has no reference to the extraordinary remedies provided by Art. 226 of the ,Constitution. The concept of
cause of action cannot in our opinion be introduced in
Art. 226, for by doing so we shall be doing away with
the express provision contained therein which requires
that the person or authority to whom the.writ is to be
issued should be resident in or located within the
. territories over which the High Court hag jurisdiction.
It is true that this may result in some inconvenience
to.persons residing far away from New Delhi who are ~
aggrieved by some order of the Government of India
as such, and that may be a reason for. making a suitable constitutional amendment in Art. 226. But the
argument of inconvenience, in our opinion, _cannoE
:1
~ .
II
I
·'
•
-
2 S.C.R. SUPREME COURT REPORTS
84:5
affect the plain language of Art. 226, nor can the con1960
cept of the place of cause of action be introduced into Lt c 1 J(h .
it for that would do away with the two limitations
· ~inch a;oor
on the powers of the High Court contained in it.
v.
We have given our earnest consideration to the
The Union of
language of Art. 226 and the two decisions of this India &- Another
Court referred to above. We are of opinion that
.