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PETITIONER:LT. COL. KHAJOOR SINGH

Vs.

RESPONDENT:THE UNION OF INDIA & ANOTHER.

DATE OF JUDGMENT:05/12/1960

BENCH:SINHA, BHUVNESHWAR P.(CJ)BENCH:SINHA, BHUVNESHWAR P.(CJ)KAPUR, J.L.GAJENDRAGADKAR, P.B.SUBBARAO, K.WANCHOO, K.N.GUPTA, K.C. DASSHAH, J.C.

CITATION: 1961 AIR 532 1961 SCR (2) 828 CITATOR INFO : R 1962 SC1513 (4) D 1967 SC1244 (12) RF 1975 SC 865 (30) R 1989 SC1933 (24)

ACT:Fundamental Right, Enforcement of--Power of High Court toissue writs against the Government of India--Constitution ofIndia, Arts. 32(2A), 226.

HEADNOTE:The High Court of. Jammu and Kashmir, relying on thedecisions of this Court in Election Commission, India v.Saka Venkata Subba Rao, [1953] S.C.R. 1144 and K. S. Rashidand Son v. The Income Tax Investigation Commission etc.,[1954] S.C.R. 738, dismissed an application for a writ madeby the appellant against the Union of India and Anr. underArt. 32(2A), the relevant provisions of which are in thematter of enforcement of fundamental rights the same as inArt. 226 of the Constitution, on the preliminary objectionthat the said application was not maintainable against theUnion of India as it was outside the territorialjurisdiction of that Court. The appellant’s case was thathe was holding the substantive rank of Lieut. Col. in Jammuand Kashmir and had the right to continue in service untilhe attained the age of 53 on November 20, 1961, but wasprematurely retired by a letter issued by the Government ofIndia on July 31, 1954, without any allegation or charge andin contravention of Art. 16(1) of the Constitution.Held, that there can be no doubt as to the correctness ofthe decisions relied on by the High Court and the appealmust fail.829The jurisdiction of the High Court under Art. 226 of theConstitution, properly construed, depends not on theresidence or location of the person affected by the orderbut of the person or authority passing the order and the


place where the order has effect cannot enter into thedetermination of such jurisdiction. Since functioning of aGovernment really means giving effect to its order, suchfunctioning cannot determine the meaning of the words "anyperson or authority within these territories" occurring inthe article. A natural person, therefore, is within thoseterritories if he resides there permanently or temporarily,an authority other than the Government is within thoseterritories if its office is located there and a Governmentif its seat from which, in fact, it functions is there.It is not correct to say that the word "authority" in Art.226 cannot include a Government. That word has to be readalong with the clause "including in appropriate cases anyGovernment" immediately following it, which, properlyconstrued, means, that the word may include any Governmentin an appropriate case. That clause is not connected withthe issuance of a writ or order and is not intended toconfer discretion on the High Courts in the matter ofissuing a writ or direction on any Government, and onlymeans in such cases where the authority against whom theHigh Court has jurisdiction to issue the writ, happens to bea Government or its subordinates, the High Court may issue awrit against the Government.Election Commission, India v. Saka Venkata Subba Rao, [1953]S.C.R. II44 and K. S. Rashid and Son v. The Income-taxInvestigation 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 StaffAssociation (Calcutta Branches), I.L.R. [1954] 2 Cal. 1,referred to.Proceedings under Art. 226 are not suits covered by Art. 300of the Constitution. Such proceedings provide for extra-ordinary remedies by a special procedure and there is noscope for introducing the concept of cause of action in itin the face of the express limitation imposed by it, thatthe person or authority concerned must be within theterritories over which the High Court exercisesjurisdiction.Ryots of Garabandho v. Zamindar of Parlakimedi, (1943) L.R.70 I.A. 129, held inapplicable.The resulting inconvenience of such an interpretation ofArt. 226 to persons residing far &way from New Delhi, wherethe Government of India is in fact located, and aggrieved bysome order passed by it, may. be a reason for suitablyamending the Article but cannot affect its plain language.This Court should not, except when it is demonstrated beyondall reasonable doubt that the previous ruling, given after105830due deliberation and full hearing, was erroneous, go backupon it, particularly on a constitutional issue.Per Subba Rao, J.-The object that the framers of our Con-stitution had before them in declaring the fundamentalrights in Part III of the Constitution and empowering theHigh Courts by Art. 226 of the Constitution to enforce themwould be largely defeated if a person in a remote part ofthe country had to come to New Delhi to seek the protectionof the Punjab High Court whenever the Union Governmentinfringed his fundamental right.The power of the High Courts under Art. 226 of the Consti-tution is of the widest amplitude and it can issue notmerely writs but also directions and orders.The words "any Government" in the Article includes the UnionGovernment 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 existencethroughout India and thus within the territories of everyState. Consequently, when the Union Government infringes thelegal right and interest of a person residing within theterritorial jurisdiction of ’a High Court, the High Courthas the power under the Article to issue a writ to thatGovernment. If its orders are disobeyed by that Governmentor any of its officers, even though physically outside itsterritories, it can proceed in contempt against them underthe Contempt. of Courts Act, 1952.Election Commission, India v. Saka Venkata Subba Rao, [1953]S.C.R. 1144, held inapplicable.K....S. Rashid and Son v. Income Tax InvestigationCommission, [1954] S.C.R. 738 and Ryots of Garabandho v.Zamindar of Parlakimedi, L.R. 70 I.A. 129, considered.Maqbul-Unnissa v. Union of India, I.L.R. (1953) 2 All. 289,approved.Surajmal v. State of M.P., A.I.R. 958 M.P. 103 and Radhe-shyam Makhanlal v. Union.of India, A.I.R. 1960 Bom. 353,held inapplicable.In the instant case, therefore, the High Court had the powerto issue the writ to the Union Government under Art. 32(2A)of the Constitution.Per Das Gupta, J.-It is neither correct nor appropriate tospeak of location of any Government and there is nosatisfactory test for ascertaining the location of theGovernment of India. Since the Government functionsthroughout the territory of India, the conclusion must bethat it is within the territories under the jurisdiction ofevery High Court. The words "any Government" in Art. 226clearly indicate that the High Court was intended to giverelief against that Government as well.Even though the Government, of India is within theterritories of every High Court, it will not have to faceapplications831for relief against the same order in all the High Courts inIndia. The words "in appropriate cases" in that Article,properly construed, indicate that there can be only one HighCourt thereunder that can exercise jurisdiction under theArticle for every act or omission in respect of which reliefis claimed. It is possible in every case to ascertain theplace where the act or omission took place and that HighCourt alone, which exercises 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 ofaction determines the jurisdiction. Neither that Articlenor Art. 32(2A) of the Constitution is based on thatprinciple.Election Commission, India v. Saka Venkata Subba Rao, [1953]S.C.R. 1144, approved.

JUDGMENT:CIVIL APPELLATE JURISDICTION: Civil Appeal No. 37 of 1955.Appeal from the judgment and order dated December 7, 1954,of the Jammu and Kashmir High Court in Criminal Misc. No.76 of 2011.Vir Sen Sawhney, for the appellant.C....K. Daphtary, Solicitor-General of India, B. R. L.Iyengar, R. H. Dhebar and T. M. Sen, for the respondents.Sardar Bahadur, for the intervener.1960. December 5. The Judgment of Sinha, C. J., Kapur,


Gajendragadkar, Wanchoo and Shah, JJ., was delivered bySinha, C. J. Subba Rao, J. and Das Gupta, J. deliveredseparate judgments.SINHA, C. J.-This appeal on a certificate of fitness grantedby the High Court of Judicature, Jammu and Kashmir, isdirected against the judgment and order dated December 7,1954, in an application under Art. 32(2A) of theConstitution for issue of. a writ, directions or. orderagainst the Union of India, through the Secretary, Ministryof Defence,, New Delhi, a,% the first respondent and theState of Jammu and Kashmir through the Chief Secretary,,Jammu and Kashmir State, as the second respondent.The petition is based on the following allegations. Thepetitioner will be referred to as the appellant in thecourse of this judgment. He was aged 45 years832262 days on August 12, 1954. He was holding a regularcommission in the Jammu and Kashmir State Forces, which wereamalgamated with the Defence Forces of the Union with effectfrom September 1, 1949. The appellant holding thesubstantive rank of Lieut. Col. in the amalgamated forceshad the right to continue in service until he attained theage of 53 years, which event will happen on November 20,1961. The Government of India issued a letter dated July31, 1954, retiring the appellant from the service witheffect from August 12, 1954, This decision of the Governmentof India is not based on any allegations or charge ofinefficiency, indiscipline or any other irregularity on thepart of the appellant. The aforesaid decision of theGovernment of India prematurely retiring the appellant isimpugned as illegal, unwarranted and discriminatory and ashaving been made in contravention of Art. 16(1) of theConstitution.The petition was opposed on behalf of the respondentsaforesaid on a number of preliminary grounds of which it isonly necessary to mention the first, namely, that theauthority against whom the writ is sought, that is to say,respondent No. 1, being outside the territorial limits ofthe jurisdiction of the Jammu and Kashmir High Court, thesame was not maintainable. This preliminary objection washeard by a Division Bench, (Janki Nath Wazir, C. J. and M.A. Shahmiri, J.) Jammu and Kashmir High Court. By itsjudgment. dated December 7, 1954, the High Court upheld thepreliminary objection. The High Court, relying upon thedecisions of this Court in Election Commission, India v.Saka Venkata Subba Rao (1) and K. S. Rashid and Son v. TheIncome-tax Investigation Commission etc. (2), held that ithad no jurisdiction to issue a writ against the firstrespondent and, therefore, dismissed the petition, but theHigh Court granted the necessary certificate under Art. 132of the Constitution; hence this appeal.The matter was first heard by a Bench of five judges. in thecourse of hearing it became clear to us that the appellantnot only sought to distinguish(1) [1953] S.C.R. 1144.(2) [1954] S.C.R. 738.833the two decisions aforesaid of this Court, but questionedthe correctness of those decisions. Hence this larger Benchwas constituted in order to examine the correctness of thedecisions aforesaid of this Court on the strength of whichthe High Court had refused to entertain the appellant’spetition, on merits.It has been argued on behalf of the appellant, in the firstinstance, 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 wagamenable 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 trueconstruction, would not stand in the way of the appellant,inasmuch as the Government of India has no location and itsauthority is present throughout the Union territory; thatthe correct test is whether or not the cause of action arosewithin the territorial limits of the High Court’sjurisdiction; that the High Court was in error in holdingthat the term "authority" included a Government.In answer to these contentions on behalf of the appellant,the learned Solicitor-General contended that, on a properconstruction 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 toGovernment, inincluding the Union Government. TheGovernment of India functions through its officers and,therefore, the location contemplated means the place atwhich the orders impugned are ordinarily passed. Theconsiderations in a suit with reference to the cause ofaction for the suit do not stand on the same footing in awrit matter, because the writ has to reach the particularofficers of the Government concerned. The expression "inappropriate cases" means that there may be cases wherethough the Union Government as such is not located withinthe territorial limits of a High Court yet a writ may beissued against it by the High(1) [1953] S.C.R. 1144.834Courts because an officer of the Union Government isfunctioning within such limits and it is his order which isthe subject matter of the controversy. Therefore, it is notin every case that a High Court can issue a writ against theUnion. A writ of mandamus, for example, is directed againsta particular named person or authority. Similarly, a writof certiorari is directed against a particular record.Therefore, the writ must issue to someone within theterritorial limits of the High Court’s jurisdiction.The question that we have to determine in this case is offar-reaching importance and is not a matter of firstimpression. The question was first raised in this Court in1952 and was determined by a Constitution Bench in the caseof Election Commission, India v. Saka Venkata Subba Rao (1).In that case a writ was applied for in the Madras High Courtfor restraining the Election Commission from, enquiring intothe alleged disqualification of the respondent. A singleJudge of the High Court- of Judicature of Madras issued awrit of prohibition restraining the Election Commission, astatutory authority constituted by the President of India,with its office permanently located at New Delhi, when thematter was heard by the learned single Judge of the HighCourt. In the High Court the Election Commission demurredto the jurisdiction of the Court to issue any writ againstit on the ground that the Commission was not within theterritory in relation to which the High Court exercisedjurisdiction, apart from other objections. The learnedJudge of the High Court overruled the preliminary objectionand decided the case on merits, and issued a writprohibiting the Commission from’ proceeding with theenquiry. The learned Judge granted the certificate underArt. 132 that the case involved a substantial question oflaw as to the interpretation of the Constitution. The


Election Commission accordingly came up in appeal to thisCourt and challenged the jurisdiction of the Madras HighCourt to issue the writ it had purported to do. This Courtoverruled the contention on behalf of the respondent whichwas(1) [1953] S.C.R. 1144.835based on the decision of the Privy Council in theParlakimedi case (1) that the jurisdiction of the High Courtto issue a writ is analogous to the jurisdiction of a courtto grant a decree or order against persons outside thelimits of its local jurisdiction, provided that the cause ofaction arose within those limits. This Court overruled thatcontention in these words:-"The rule that cause of action attracts jurisdiction insuits is based on statutory enactment and cannot apply towrits issuable under Art. 226 which makes no reference toany cause of action or where it arises but insists on thepresence 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 thelanguage of Art. 226 of the Constitution was "reasoriablyplain" and that the exercise of the power conferred by thatArticle was subject to a two-fold limitation, namely, (1)that the power is to be exercised "throughout theterritories in relation to which it exercises jurisdiction"and (2) that the person or authority to whom the High Courtis empowered to issue the writs must be "within thoseterritories". In other words, the writ of the Court couldnot run beyond the territories subject to its jurisdictionand that the person or authority affected by the writ mustbe amenable to the Court’s jurisdiction, either by residenceor location within those territories.The second case of this Court, which dealt with thisquestion is K. S. Rashid and Son v. The Income-TaxInvestigation Commission (2). That was a case on appealfrom the judgment and order dated August 10, 1950, of theHigh Court of Judicature, Punjab, at Simla, in a number ofmiscellaneous matters, in which the High Court had beenmoved under Arts. 226 and 227 of the Constitution prayingfor quashing proceedings started against the appellantsunder the Taxation on Income (Investigation Commission.) Act(XXX of 1947). It was prayed in the High Court that a writof prohibition might issue against the Income-Tax(1) (1943) L.R. 70 I.A. 129.(2) [1954] S.C.R. 738.836Investigation Commission directing it not to proceed withthe investigation of cases referred to it under theprovisions of the Act. The writ petitions in the High Courtwere opposed on behalf of the Commission on a number ofgrounds, one of them being that the Pun. jab High Court hadno jurisdiction to issue the writs prayed for under Art. 226of the Constitution, simply because the Commission waslocated in Delhi. Reliance was placed on behalf of theCommission on the decision of the Privy Council in theParliament case (1) that the substance of the matter wasthat the assessees against whom the investigation had beenstarted belonged to U. P. and all the assessment pro-ceedings, including reference to the High Court, would liein Uttar Pradesh. The High Court gave effect to thiscontention and dismissed the application primarily on theground that the High Court had no jurisdiction to issue thewrit to the Commission. The assessees came up in appeal tothis Court, and this Court substantially adopted the reasons


given by it in its previous judgment in the case of ElectionCommission, India v. Saka Venkata Subba Rao (2). It is tobe noted that when the High Court of Punjab decided thecase, the decision of this Court referred to above had notbeen given. Relying upon its previous decision, this Courtheld that the Punjab High Court was in error in holding thatit had no jurisdiction to deal with the matter under Art.226 of the Constitution. The appeal was dismissed by thisCourt on other grounds, not material to this case.Learned counsel for the appellant has contended that the twodecisions of this Court referred to above aredistinguishable from the facts of the present case, inasmuchas in those cases the Election Commission and the Income-taxInvestigation ’Commission were statutory bodies, which hadtheir location in Delhi, and, therefore, this Court heldthat the Punjab High Court was the High Court within whosejurisdiction those bodies functioned and had their locationand were, therefore, amenable to its jurisdiction. Hefurther contended that the Union Government functionedthroughout the territory of India and could(1) (1943) L.R. 70 I.A. 129.(2) [1953] S.C.R. 1144.837not be said to be located only in Delhi simply because thecapital for the time being was in Delhi. In thisconnection, strong reliance was placed on the decision ofthe Full Bench of the Allahabad High Court in Maqbulunnissav. Union of India (1). That case does lend a great deal ofsupport to this contention on behalf of the appellant. Itwas held by the High Court in that case that the words "anyGovernment" in Art. 226(1) of the Constitution clearly indi-cated that the Allahabad High Court had jurisdiction toentertain the petition under Art. 226, not only against theState of Uttar Pradesh, but also against the UnionGovernment for the issue of a writ in the nature ofmandamus, directing the Government to forbear from givingeffect to the order asking the petitioner to leave India.The ratio of the decision was that, even though the capitalof the Government of India is in Delhi, its executive powerextends throughout the territory of India and that the realtest to determine the jurisdiction would be the residence ofthe petitioners and the effect of the impugned order uponthem. After holding that the High Court had thejurisdiction to entertain the petition, the Court dismissedit on other grounds, not material to this case. TheAllahabad High Court distinguished the decision of aDivision Bench of the Calcutta High Court dated January 17,1951, in the case of The Lloyds Bank Limited v. The LloydsBank Indian Staff Association (Calcutta Branches) (2) whichwas unreported till then. In that case, Harries, C. J.,speaking for the Court, had held that though Art. 226 of theConstitution had gone beyond the English practice byproviding that writs in the nature of prerogative writscould issue even against a Government, that Government mostbe located within the territorial limits of the Court whichwas moved to exercise its power under that Article. Hefurther observed that the Government of India could not besaid to be located in the State of West Bengal and,therefore, writs under Art. 226 could not issue against thatGovernment by the High Court of Calcutta. That(1) I.L. R. (1953) 2 All. 289.(2) I.L.R. [1954] 2 Cal. 1.838decision of the Calcutta High Court was distinguished by theAllahabad High Court on the ground that "the effects of the


orders of the Union Government were not operative within thejurisdiction of the Court". It may be added that thatdecision came up in appeal to this Court in Civil Appeal No.42 of 1952 but the appeal was dismissed by this Court by itsjudgment dated April 20, 1952, on other grounds. It will benoticed that when the Allahabad decision, so strongly reliedupon by the appellant, was given, the two decisions referredto above of this Court were not there. The Allahabad HighCourt may not have given that judgment if the two decisionsof 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 havea location in a particular place, viz., New Delhi,irrespective of the fact that its authority extends over allthe States and its officers function throughout India, and(ii) whether there is any scope for introducing the conceptof cause of action as the basis of exercise of jurisdictionunder Art. 226. Before, however, we deal with these twomain questions, we would like to clear the ground withrespect to two subsidiary matters which have been urged onbehalf of the appellant.The first argument is that the word "authority" used in Art.226 cannot and does not include Government. We are notimpressed by this argument. In interpreting the word"authority" we must have regard to the clause immediatelyfollowing it. Art. 226 provides for "the issue to anyperson or authority including in appropriate cases anyGovernment" within those territories. It is clear that theclause "including in appropriate cases any Government" goeswith the preceding word "authority", and on a plain andreasonable construction it means that the word " authority"in the context may include any Government in an appropriatecase. The suggestion that the said clause is intended toconfer discretion on the High Courts in the matter ofissuing a writ or direction on any Government seems to usclearly unsustainable.839To connect this clause with the issuance of a writ or orderand to suggest that in dealing with cases against Governmentthe High Court has to decide whether the case is appropriatefor the issue of the order is plainly not justified by therules of grammar. We have no hesitation in holding that thesaid clause goes with the word "authority" and that itseffect is that the authority against whom jurisdiction isconferred on the High Court to issue a writ or appropriateorder may in certain cases include a Government. Appro-priate cases in the context means cases in which orderspassed by a Government or their subordinates are challenged,and the clause therefore means that where such orders arechallenged the High Court may issue a writ against theGovernment. The position, therefore, is that under Art. 226power is conferred on the High Court to issue to any personor authority or in a. given case to any Government, writs ororders there specified for enforcement of any of the rightsconferred by Part III and for any other purpose. Havingthus dealt with the two subsidiary points raised before us,we may now proceed to consider the two main contentionswhich arise for our decision in the present appeal.This brings us to the first question, namely, whether theGovernment of India as such can be said to be located at oneplace, namely, New Delhi. The main argument in thisconnection is that the Government of India is all-pervasiveand is functioning throughout the territory of India ’andtherefore every High Court has power to issue a writ againstit, as it must be presumed to be located within the


territorial jurisdiction of all State High Courts. Thisargument in our opinion confuses the concept of location of’a Government with the concept of its functioning’ AGovernment may be functioning all over a State or all overIndia; but it certainly is not located all over the State orall over India. It is true that the Constitution has notprovided that the seat of the Government, of India will beat New Delhi. That, however, does not mean’ that theGovernment of India as such has no seat where it is located.It is common knowledge that the seat of the840Government of India is in New Delhi ’and the Government assuch is located in New Delhi. The absence of a provision inthe Constitution can make no difference to this fact. Whatwe have to see, therefore, is whether the words of Art. 226mean that the person or authority to whom a writ is to beissued has to be resident in or located within theterritories of the High Court issuing the writ? Therelevant words of Art. 226 are these-"Every High Court shall have power to issue to any person orauthority within those territories...". So far as a naturalperson is concerned, there can be no doubt that he can bewithin those territories only if he resides therein- eitherpermanently or temporarily. So far as an authority isconcerned, there can be no doubt that if its office islocated therein it must be within the territory. But dothese words mean with respect to an authority that eventhough its office is not located within those territories itwill be within those territories because its order mayaffect persons living in those territories? Now it is clearthat the jurisdiction conferred on the High Court by Art.226 does not depend upon the residence or location of theperson applying to it for relief; it depends only on theperson or authority against whom a writ is sought beingwithin those territories. It seems to us therefore that itis not permissible to read in Art. 226 the residence orlocation of the person affected by the order passed in orderto determine the jurisdiction of the High Court. Thatjurisdiction depends on the person or authority passing theorder being within those territories and the residence: orlocation of the person affected can have no relevance on thequestion of the High Court’s jurisdiction. Thus if a personresiding or located in Bombay, for example, is aggrieved byan order passed by an authority located, say, in Calcutta,the forum in which he has to seek relief is not the BombayHigh Court though the order may affect him in Bombay but theCalcutta High Court where the authority passing the order islocated. It would, therefore, in our opinion be wrong tointroduce in Art.. 226 the concept of the place where theorder841passed has effect in order to determine the jurisdiction ofthe High Court which can give relief under Art. 226. Theintroduction of such a concept may give a rise to confusionand conflict of jurisdictions. Take , for example, the caseof an order passed by an authority in Calcutta, whichaffects six brothers living, say-, in Bombay, Madras,Allahabad, Jabalpur, Jodhpur and Chandigarh. The orderpassed by the authority in Calcutta has thus affectedpersons in six States. Can it be said that Art. 226contemplates that all the six High Courts have jurisdictionin the matter of giving relief under it? The answer mustobviously be ’No’, if one is to avoid confusion and conflictof 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 tothe location or residence of the person or authority passingthe order and there can be no question of introducing theconcept of the place where the order is to have effect inorder to determine which High Court can give relief underit. It is true that this Court will give such meaning tothe words used in the Constitution as would help towards itsworking smoothly. If we were to introduce in Art. 226 theconcept of the place where the order is to have effect wewould not be advancing the purposes for which Art. 226 hasbeen enacted. On the other hand, we would be producingconflict of jurisdiction between various High Courts asalready shown by the illustration given above. Therefore,the effect of an order by whomsoever it is passed can haveno relevance in determining the jurisdiction of the HighCourt which can take action under Art. 226. Now,functioning of a Government is really nothing other thangiving effect to the orders passed by it. Therefore itwould not be right to introduce in Art. 226 the concept ofthe functioning of Government when determining the meaningof the words "any person or authority within thoseterritories". By introducting the concept of functioning inthese words we shall be creating the same conflict whichwould arise if the concept of the place where- the order isto have effect is introduced in842Art. 226. There can, therefore, be no escape from theconclusion that these words in Art. 226 refer not to theplace where the Government may be functioning but only tothe place where the person or authority is either residentor is located. So far therefore as a natural person isconcerned, he is within those territories if he residesthere permanently or temporarily. So far. as an authority(other than a Government) is concerned, it is within theterritories if its office is located there. So far as aGovernment is concerned it is within the territories only ifits seat is within those territories.The seat of a Government is sometimes mentioned in theConstitutions of various countries but many a time the seatis not so mentioned. But whether the seat of a Governmentis mentioned in the Constitution or not, there isundoubtedly a seat from which the Government as ’suchfunctions as a fact. What Art. 226 requires is residence orlocation as a fact and if therefore there is a seat fromwhich the Government functions as a fact even though thatseat is not mentioned in the Constitution the High Courtwithin whose territories that seat is located will be theHigh Court having jurisdiction under AA. 226 so far as theorders of the Government as such are concerned. Therefore,the view taken in Election Commission, India v. Saka VenkataSubba Rao (1) and K.S. Rashid and Son v. The Income-taxInvestigation Commission (2) that there is two-foldlimitation on the power of the High Court to issue writsetc. under Art. 226, namely, (i) the power is to beexercised ’throughout the territories in relation to whichit exercises jurisdiction’, that is to say, the writs issuedby the Court cannot run beyond the territories subject toits jurisdiction, and (ii) the person or authority to whomthe High Court is empowered to issue such writs must be"within those territories" which clearly implies that theymust be amenable to its jurisdiction either by residence orlocation within those territories, is the correct one.This brings us to the second point, namely, whether(1) [1953] S.C.R. 1144.(2) [1954] S.C.R. 738.


843it is possible to introduce the concept of cause of actionin Art. 226 so that the High Court in whose jurisdiction thecause of action arose would be the proper one to pass anorder thereunder. Reliance in this connection has beenplaced on the judgment of the Privy Council in Ryots ofGarabandho v. Zamindar of Parlakimedi (1). In that case thePrivy Council held that even though the impugned order waspassed by the Board of Revenue which was located in Madras,the High Court would have no jurisdiction to issue a writquashing that order, as it had no jurisdiction to issue awrit beyond the limits of the city of Madras except incertain cases, and that particular matter was not within theexceptions. This decision of the Privy Council does appa-rently introduce an element of the place where the cause ofaction arose in considering the jurisdiction of the HighCourt, to issue a writ. The basis of the at decision,however, was the peculiar history of the issue of writs bythe three Presidency High Courts as successors of theSupreme Courts, though on the literal construction of cl. 8of the Charter of 1800 conferring jurisdiction on, theSupreme Court of Madras, there could be little doubt thatthe Supreme Court would have the same jurisdiction as theJustices of the Court of King’s Bench Division in Englandfor the territories which then were or thereafter might besubject to or depend upon the Government of Madras. It willtherefore not be correct to put too much stress on thedecision in that case. The question whether the concept ofcause of action could be introduced in Art. 226 was alsoconsidered in Saka Venkata Subba Rao’s case ( 2 ) and wasrepelled in these words:-"The rule that cause of action attracts jurisdiction insuits is based on statutory enactment and cannot apply towrits issuable under Art. 226 which makes no reference toany cause of action or where it arises but insists on thepresence 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. 1144.844the accrual of cause of action and to the jurisdiction ofthe High Court depending on the place where the cause ofaction accrues being within its territorial jurisdiction.Proceedings under Art. 226 are not suits; they provide forextraordinary remedies by a special procedure and givepowers of correction to the High Court over persons andauthorities and these special powers have to be exercisedwithin the limits set for them. These two limitations havealready been indicated by us above and one of them is thatthe person or authority concerned must be within theterritories over which the High Court exercises juris-diction. Is it possible then to overlook this constitu-tional limitation and say that the High Court can issue awrit against a person or authority even though it may not bewithin its territories simply because the cause of actionhas arisen within those territories? It seems to us that itwould be going in the face of the express provision in Art.226 and doing away with an express limitation containedtherein if the concept of cause of action were to beintroduced in it. Nor do we think that it is right to saythat because Art. 300 specifically provides for suits by andagainst 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. L76 of the Government of


India Act, 1935, dealt with suits as such and proceedingsanalogous to or consequent upon suits and has no referenceto the extraordinary remedies provided by Art. 226 of theConstitution. The concept of cause of action cannot in ouropinion be introduced in Art. 226, for by doing so we shallbe doing away with the express provision contained thereinwhich requires that the person or authority to whom the writis to be issued should be resident in or located within theterritories over which the High Court has jurisdiction. Itis true that this may result in some inconvenience topersons residing far away from Now Delhi who are aggrievedby some order of the Government of India as such, and thatmay be a reason for making a suit. able constitutionalamendment in Art. 226. But the argument of inconvenience,in our opinion,. cannot845affect the plain language of Art. 226, nor can the conceptof the place of cause of action be introduced into it forthat would do away with the two limitations on the powers ofthe High Court contained in it.We have given our earnest consideration to the language ofArt. 226 and the two decisions of this Court referred toabove. We are of opinion that unless there are clear andcompelling reasons, which cannot be denied, we should notdepart from the interpretation given in these two cases andindeed from any interpretation given in an earlier judgmentof this Court, unless there is a fair amount of unanimitythat the earlier decisions are manifestly wrong. This Courtshould not, except when it is demonstrated beyond allreasonable doubt that its previous ruling, given after duedeliberation and full hearing, was erroneous, go back uponits previous ruling, particularly on a constitutional issue.In this case our reconsideration of the matter has confirmedthe view that there is no place for the introduction of theconcept of the place where the impugned order has effect orof the concept of functioning of a Government, apart fromthe location of its office concerned with the case, or evenof the concept of the place where the cause of action arisesin Art. 226 and that the language of that Article is plainenough to lead to the conclusion at which the two cases ofthis Court referred to above arrived. ’If any inconvenienceis felt on account of this interpretation of Art. 226 theremedy seems to be a constitutional amendment. There is noscope for avoiding the inconvenience by an interpretationwhich we cannot reasonably, on the language of the Article,adopt and which the language of the Article does not bear.In this view of the matter the appeal fails and is herebydismissed with costs.SUBBARAO, J.-I have had the advantage of perusing thejudgment prepared by my Lord the Chief Justice. I regret myinability to agree. I would not have ventured to differfrom his weighty opinion but for the fact that theacceptance of the contention of107846the respondents would practically deprive the majority ofcitizens of our country of the benefit of cheap, expeditiousand effective remedy given to them under Art. 226 of theConstitution against illegal acts of the Union Government.If the relevant provisions are clear and unambiguous, thesaid contention must prevail however deleterious the effectmay be to public interest. But if the words of the Articleare capable of two or more interpretations, one that willcarry out the intention of the Constituent Assembly and theother that would defeat it, the former interpretation must


necessarily be accepted. We must also bear in mind that theprovisions of the Constitution are not " mathematicalformulae which have their essence in mere form". It beingan organic statute, its provisions must be construed broadlyand not in a pedantic way, but without doing violence to thelanguage used.The facts have been fully stated in the judgment of my Lordthe Chief Justice and it would be redundant to restate them.It would be enough if I formulate the point of law raisedand express my opinion thereon. The question is whether theappellant, who is a citizen of India and is residing in theState of Kashmir, can enforce his fundamental right underArt 32(2A) of the Constitution by filing an appropriate writpetition in the High Court of Jammu & Kashmir, if his rightis infringed by an order of the Union Government. TheConstitution of India has been made applicable to the Stateof Jammu & Kashmir by the Constitution (Application to Jammu& Kashmir) Order, 1954 (Order No. 48 dated May 14, 1954)with certain exceptions and modifications. By the saidOrder, cl. (3) of Art. 32 of the Constitution was deleted,and a new clause (2A) was inserted after cl. (2). Thequestion falls to be decided on a true construction of thesaid el. (2A) which reads:"Without prejudice to the powers conferred by clauses (1)and (2), the High Court shall have power throughout theterritories in rotation to which it exercises jurisdictionto issue to any person or authority, including inappropriate cases any Government within these territories,directions or orders or writs,847including 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 thisPart."The operative part of this clause is in pari materia withArt. 226 of the Constitution with the difference that thewords "for any other purpose" found in the latter Articleare omitted in the former. Though the power of the HighCourt of Jammu & Kashmir is limited to that extent, in otherrespects it is as extensive as that of the other High Courtsunder Art. 226. The object of the amendment is self-evident; it was enacted to enable the said High Court toprotect the fundamental rights of the citizens of India inthat part of the country.The learned Solicitor-General broadly contends that thisCourt has construed the analogous provisons of Art. 226 ofthe Constitution and held that the writs under that Articledo not run beyond the territories in relation to which aHigh Court exercises jurisdiction and that a High Courtcannot issue a writ thereunder unless the person orauthority against whom the writ is sought is physicallyresident or located within the territorial jurisdiction ofthat High Court; and that, therefore, on the same parity ofreasoning, the High Court of Jammu & Kashmir cannot issue awrit to run beyond the territories of that State against theUnion Government functioning through its officers in NewDelhi.Learned counsel for the appellant contends, on the otherhand, that neither Art. 32(2A) nor Art. 226 bears any suchlimited construction and that on a liberal and trueconstruction of the said constitutional provisions it mustbe held that ’the High Court can issue a writ against anyGovernment, including the Union Government, exercising thefunctions within the territories of a State, if it infringesthe right of a person in that State.


Before I attempt to construe the provisions of el. (2A) ofArt. 32, I think it would be convenient to trace briefly thehistory of Art. 226, for it throws a flood of light on thelegislative intention expressed in848Art. 32(2A). In pre-independence India the High Courts,other than the High Courts in the presidency towns ofBombay, Calcutta and Madras, had no power to issueprerogative writs; even in the case of the said presidencyHigh Courts the power to issue writs was very muchcircumscribed; their jurisdiction to issue the said writswas confined only to the limits of their originaljurisdiction and the Governments were excluded from itsscope. But the framers of our Constitution with thebackground of centuries of servility, with the awareness ofthe important role played by the High Court of England inprotecting the rights of its citizens when they wereinfringed by executive action, with the knowledge of theeffective and impartial part played by the High Courts inpre-independence India within the narrow limits of theirjurisdiction to protect the rights of the citizens of ourcountry, with a vision to prevent autocracy raising its uglyhead in the future, declared the fundamental rights in PartIII of the Constitution, conferred powers on the High Courtsto issue to any person or authority, including inappropriate cases any Government, directions, orders orwrits for the enforcement of the fundamental rights or forany other purpose. In short, any person of India canapproach an appropriate High Court to protect his rightsagainst any person, authority or any Government if hisfundamental right or any other right is infringed by thesaid person, authority or Government. If the contention ofthe respondents be accepted, whenever the Union Governmentinfringes the right of a person in any remote part of thecountry., he must come all the way to New- Delhi to enforcehis right by filing a writ petition in the CircuitBench of the Punjab High Court. If a common man residingin Kanyakumari, the southern-most part of India, hisillegally detained in prison, or deprived of his propertyotherwise than by law, by an order of the Union Government,it would be a travesty of fundamental rights to expect himto come to New Delhi to seek the protection of the HighCourt of Punjab. This construction of the provisions ofArt. 226 would attribute to the framers849of the Constitution an intention to confer the right on aperson and to withhold from him for all practical purposesthe remedy to enforce his right against the UnionGovernment. Obviously it could not have been the intentionof the Constituent Assembly to bring about such an anomalousresult in respect of what they conceived to be a cherishedright conferred upon the citizens of this country. In thatevent, the right conferred turns out to be an empty one andthe object of the framers of the Constitution is literallydefeated.The scope of Art. 226 vis-a-vis the reach of the HighCourts’ power has been considered in two decisions of thisCourt, namely, Election Commission, India v. Saka VenkataRao (1) and K. S. Rashid and Son v. The Income-taxInvestigation Commission (2). As this Bench of seven Judgesis constituted to enable this Court to approach the problemwith a fresh mind unhampered by precedents, I propose toscrutinize the provisions of Art. 32(2A) free from the curbsimposed by the earlier decisions.The core of the Article is discernible in the following


clause and phrases: "throughout the territories in relationto which it exercises its jurisdiction", "any Government","within those territories", "directions or orders or writs,including writs in the nature of habeas corpus, etc." Thewore "throughout the territories, etc." delimit theterritorial jurisdiction of the High Courts in the matter ofissuing directions or writs. A High Court exercisesjurisdiction throughout the State in which it is located.Its writs run only through. out the State and not beyond itsterritorial limits. The main object of the powers to keepthe authorities or tribunals within their bounds and toprevent them from infringing the fundamental or other rightsof citizens. At the instance of an aggrieved person it canissue one or other of the writs or orders or directionsagainst the offending authority in respect of an act done oromitted tot be done by it. It is implicit in the,limitation that the impugned act must affect a person orproperty amenable to its territorial jurisdiction.(1) [1953] S.C.R. 1144.(2) [1954] S.C.R. 738.850This question, in a different context, has been consideredby the Judicial Committee of the Privy Council in Ryots ofGarabandho v. Zemindar of Parlaki medi (1). There the Boardof Revenue situated in the State of Madras under s. 172 ofthe Madras Estates Land Act, 1908, enhanced the rentspayable by the ryots in three villages, includingParlakimedi village, in the district of Ganjam in theNorthern Circars. The question was whether the Madras HighCourt had power to issue a writ to quash the order of theBoard. of Revenue, as the parties to that litigation werenot subject to the original jurisdiction of the Madras HighCourt. The Judicial Committee held that the Madras HighCourt had no jurisdiction to issue a writ of certiorari torun beyond the territorial limits of that High Court. Whenit was contended that, as the Revenue Board was in Madras,the High Court had jurisdiction to quash its order, theJudicial Committee repelled that contention with the follow-ing remarks at p. 164:"The Board of Revenue has always had its offices in thePresidency Town, and in the present case the CollectiveBoard, which made the order complained of, issued this orderin the town. On the other hand, the parties are not subjectto the original jurisdiction of the High Court, and theestate of Parlakimedi ties in the north of theprovince............. Their Lordships think that thequestion of jurisdiction must be regarded as one ofsubstance, and that it would not have been within thecompetence of the Supreme Court to claim jurisdiction oversuch a matter as the present by issuing certiorari to theBoard of Revenue on the strength of its location in thetown. Such a view would give jurisdiction to the SupremeCourt, in the matter of settlement of rents for ryoti-holdings in Ganjam between parties not otherwise subject toits jurisdiction, which it would not have had over theRevenue Officer who dealt with the matter at firstinstance."This decision in clear terms lays emphasis on the substanceof the matter and holds that mere physical(1) (1943) L.R. 70 I.A. 129.851presence of an authority within the jurisdiction of a HighCourt does not enable that Court to issue writs against thesaid authority in respect of an order made in a disputebetween persons residing outside the territorial


jurisdiction of the said High Court. Therefore, a HighCourt’s jurisdiction to issue an appropriate writ depends onthe co-existence of two conditions, namely, (i) the cause ofaction has accrued within the territories in relation towhich it has jurisdiction, and (ii) the said authority is"within" the said territories. This interpretation may giverise to a criticism; it may be asked, which High Court couldgive the relief if the cause of action accrues within theterritorial jurisdiction of one High Court and the authorityconcerned is located within that of another High Court?There may. be statutory authorities with all-Indiajurisdiction, but for convenience located in a particularState. In exercise of the powers conferred under statutes,they may make orders affecting the rights of partiesresiding in different States. I am prima facie of the viewthat the said authorities, in so far as their orders operatein a particular territory, will be "within" thoseterritories and the High Court, which exercises itsjurisdiction throughout that territory, can issue a suitablewrit against the said authorities. This interpretationavoids the anomaly of one High Court issuing a writ againstan authority located "within" its territorial jurisdictionin respect of a cause of action accruing in another State orterritory over which it has no jurisdiction. But thisquestion does not arise in this case, for we re mainlyconcerned with the Union Government.Article 226 of the Constitution is expressed in wide andmost comprehensive terms. There is no difficulty about. thewords "person or authority", but the phrase "including anyGovernment" gives rise to a conflict of opinion. If theframers of the Constitution intended to extend simply thepower of the High Court to issue writs only against theGovernment of the State, they could have stated "or theGovernment of the State", instead they designedly used thewords "any Government" which at first sight appear ratherinvolved but on a deeper scrutiny reveal that the words852"any Government" cannot mean only the Government of theState. The word "any" clearly presupposes the existence ofmore than one Government functioning in a State. Under theConstitution two Governments function in each State. UnderArt. 1, India shall be a Union of States and the territoryof India shall comprise, inter alia, the territories of theStates. Part 11 provides for one class of citizens, thatis, citizens of India. In whatever State a person with therequisite qualifications of a citizen may reside, he is acitizen of India and not of that particular State. All thethree departments of the Union as well as the State functionin the State; both Parliament and the Legislature of theState make laws which govern the State in respect of mattersallotted to them respectively. Both the Union and the Stateexecutive powers extend to the. State, and the former isexercised in regard to matters with respect to whichParliament has power to make laws and the latter in regardto matters with respect to which the Legislature of theState has power to make laws: see Arts. 73 and 162. TheJudiciary consists of an hierarchy of courts and all thecourts from the lowest to the Supreme Court exercisejurisdiction in respect of a cause of action arising in thatState. The demarcation between the Union Government and theState Government is, therefore, not territorial but only :subjectwise and both the Governments function within theState. With this background it is easy to perceive that"any Government" must include the Union Government, for twoState Governments cannot administer the same State, though


for convenience or as a temporary arrangement, the officesof one State may be located in another State. Then it isasked why the Article confers power to issue writs againstany Government only in appropriate cases. There are twoanswers to this question. Till the Constitution was framedthere was no power in a High Court to issue a writ evenagainst the Provincial Government. The Constitutionconferred for the first time a power on the High Court toissue a writ not only against the State Government but alsothe Union Government. As the853Union Government has sway over not only the State inquestion but beyond it, it became necessary to administer acaution that a writ can only be issued in appropriate cases.The High Court’s jurisdiction is limited in the matter ofissuing writs against the Union Government, for it cannotissue writs against it in respect of a cause of actionbeyond its territorial jurisdiction. There may also be acase where the secretariat of one of the State Governmentsis located in another State temporarily. In such a casealso the High Court of the latter State cannot issue writsagainst that State Government as it is not appropriate toissue such writs, for the cause of action accrues’ withinthe former State.I have, therefore, no doubt that the words "any Government"must necessarily take in the Union Government.Much of the argument turns upon the words "within thoseterritories". It is said that the Union Government is notwithin the territories of the State, for its headquartersare in Delhi. The Article does not use the word"headquarters", "resident" or "location". The dictionarymeaning of the word "within" is "inside of, not out of orbeyond". The connotation of the words takes colour from thecontext in which they are used. A person may be said to bewithin a territory if he resides therein. He may also bewithin a territory if he temporarily enters the saidterritory or is in the course of passing through theterritory. Any authority may be in a territory if itsoffice is located therein. It may also be said to be withina territory if it exercises its powers therein and if it canmake orders to bind persons for properties therein. So tooa Government may be within a State if it has a legal situsin that State. It may also be said to be within a State ifit administers the State, though for convenience some of itsexecutive authorities are residing outside the territory.We must give such meaning to these words as would help theworking of the Constitution rather than retard it. To putit differently, can it be said that the Union Government108854is within a particular State? Union Government in thepresent context means the executive branch of theGovernment. Where is it located? To answer this questionit is necessary to consider what is "Union Government". TheConstitution in Part V under the heading. "The Union" dealswith separate subjects, namely, the executive, theParliament and the Union judiciary. Under Art. 53, theexecutive power of the Union shall be vested in thePresident and shall be exercised by him either directly orthrough officers subordinate to him in accordance with theConstitution. Article 74 provides for a council ofMinisters with the Prime Minister at the head to aid andadvise the President in the exercise of his functions. ByArt. 77, all executive action of the Government of Indiashall be expressed to be taken in the name of the President;


and el. (3) thereof authorizes the President to make rulesfor the more convenient transaction of the business of theGovernment of India, and for the allocation among Ministersof the said business. Article 73 says that subject to theprovisions of the Constitution, the executive power of theUnion shall extend to the matters with respect to whichParliament has power to make laws and to the exercise ofsuch rights, authority and jurisdiction as are exercisableby the Government of India by virtue of any; treaty oragreement. The Constitution nowhere fixes the seat of theUnion Government or even that of the President. Shortlystated, the Union Government is the President acting on theadvise of the Ministers directly or through officerssubordinate to him in accordance with the Constitution andthe jurisdiction of the said Government extends, so far asis relevant to the present purpose, to matters in respect ofwhich Parliament has power to make laws. The question thatimmediately arises is, what is the situs of such aGovernment? There is no statutory situs. For convenienceof administration, the officers of such Government may stayat one place,, or they may be distributed in differentplaces; the President may. reside in one place, the PrimeMinister in another, the855Ministers in a third place and the officers through whom thePresident exercises his powers in a place different from therest. What happens when the Secretariat remains in NewDelhi and the President resides for some months in a yearin, say,, Hyderabad? Contrary-wise, what would be theposition if the President stays in New Delhi and the entireor part of the Secretariat or some of the Ministers stay inHyderabad? It is, therefore, not possible to apply ’thetest of residence or location in the absence of anystatutory situs. The Union Government has no fixed legalabode; it is present throughout the territories over whichit exercises jurisdiction and in respect whereof it can makeeffective and binding orders in the field allotted to it bythe Constitution. The constitutional situs of the UnionGovernment is the entire territories of the Union and it is"within" the territories of India and,, therefore, withinthe territories of every State.Let us look at the problem from another standpoint. UnderArt. 300 of the Constitution, the Government of India maysue or be sued by the name of the Union of India. The word"sued" is used in a general sense and cannot be narrowlyconstrued in the Constitution as to comprehend only actionby way of filing a suit in a civil court. According toWebster, it means to seek justice or right by legal process.Generally speaking, it includes any action taken in a court.The practice followed in the various High Courts and theSupreme Court is also consistent with the wide meaningattributed to it, for writs are filed against the Governmentof India only in the name of the Union of India. Union ofIndia is a juristic person and it is impossible to predicateits residence in a particular place in the Union. Itspresence Synchronizes with the limits of the Unionterritories. That is the reason why that Order XXVII, rule3, Code of Civil Procedure, says that in suits by or againstthe Government instead of inserting in the plaint the nameand description and place of residence of the plaintiff ordefendant, it shall be sufficient to insert the appropriatename as provided in s. 79 Section 79 of the856Civil Procedure Code is in terms analogous to Art. 300 ofthe Constitution, and under that section,


"In a suit by or against the Government, the authority to benamed as plaintiff or defendant, as the case may be, shallbe-(a)..in the case of a suit by or against the CentralGovernment, the Union of India, and(b)..in the case of a suit by or against a State Government,the State."As the Union of India has no statutory situs, Order XXVII,rule 3, Code of Civil Procedure, exempts its place ofresidence being given in the plaint or the writtenstatement, as the case may be. The suit by or against theUnion Government shall be filed in a court which hasjurisdiction to entertain such a suit, having regard to theprovisions of ss. 15 to 20 of the said Code. On the sameanalogy, it may be held that the Union of India has no legalsitus in a particular place and a writ petition can be filedagainst it in a place within the jurisdiction of the HighCourt wherein the cause of action accrues.It is said that the limits of the power to issue a writ areimplicit in the nature of a particular writ. What is thenature of the principal writs, namely, habeas corpus,mandamus, prohibition, quo warranto and certiorari? Thewrit of habeas corpus "is a prerogative process for securingthe liberty of the subject by affording an effective meansof immediate release from unlawful or unjustifiabledetention whether in prison or in private custody". Thewrit of mandamus "is, in form, a command directed to anyperson, corporation or inferior tribunal, requiring him orthem to do some particular thing therein specified whichappertains to his or their office and is in the nature of apublic duty." An order of prohibition is an order directedto an inferior tribunal forbidding it to; continue with theproceedings pending therein. An information in the natureof a quo warranto lies against a person who claimed orusurped an office, franchise, or liberty, to inquire by whatauthority he supported his claim. A certiorari is directedto an authority "requiring the record of the proceedings insome cause or matter to857be 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 beprohibited, the credentials of a person to hold office bequestioned, the records of a proceeding be directed to betransmitted to the High Court, if the authority concernedwag located, or the person directed resided, outside. theterritorial jurisdiction of the High Court? It was alsoasked how, if the said authority, or person, disobeyed theorder of the High Court, it could be enforced against thesaid authority or person. On the parity of the samereasoning the argument proceeded that, as the officersacting for the Government of India reside in Delhi, a writwhich would become brutum fulmen could not be issued by theHigh Court.The questions so posed are based on a misapprehension of therelevant provisions of the Constitution. They also mix upthe nature of the writs with the procedure in dealing withthe writs or enforcing the orders made therein. As I havealready indicated, the Article confers a power on the HighCourt to issue writs against the Union Government. If thesaid Government is "within the State", is it an answer to itthat an officer of the Government dealing with a particularpaper or papers is residing outside the territorialjurisdiction of the High Court? If the Union Government is


bound by the order of the High Court, the question ofservice of notice on a particular officer acting for theGovernment or to enforce an order against him is a matterpertaining to the realm of procedure and appropriate rulescalf be framed by the High Court or the requisite law madeby the Parliament. If the Union Government disobeys theorder it would certainly be liable for contempt of courtunder the Contempt of Courts Act, 1952. Even if the con-temner happens to be an officer of the said Governmentresiding outside the territorial limits of the High Court,the High Court has ample power to reach him under s. 5 ofthe said Act.858The analogy drawn from English law is rather misleading.England is comparatively a small country and it has only oneGovernment functioning throughout the State. The problemthat has arisen now could not have arisen in England, forthe jurisdiction of the Queen’s Bench Division of the HighCourt extends throughout England. In England the manner ofthe exercise of the jurisdiction was also regulated by aprocedure brimming with technicalities, but later onsimplified by statute. The framers of our Constitutiontherefore designedly used the words "in the nature of"indicating that they were not incorporating in theConstitution the entire procedure followed in England, forthe procedure will have to be evolved having regard to thefederal structure of our Government. How can the procedurallaw of England in the matter of writs be bodily lifted andimplanted in India? This Court shall have to put areasonable construction on the words without being undulyweighed down by the historical background of these writs andconstrue the Article in such a way, if legally permissible,to carry out the intention of the Constitution-makers. Thatapart, Article 226 of the Constitution is not confined tothe prerogative writs in vogue in England. The Articleenables the appropriate High Court to issue also directionsor orders, and there is no reason why the High Court couldnot, in an appropriate case, give a suitable direction to,or make a proper order on, the Union Government. Suchdirections or orders are certainly free from the proceduraltechnicalities of the said writs.I shall now notice briefly the decisions cited at the Bar.The first is the decision of this Court in ElectionCommission, India v. Saka Venkata Rao(1). There theGovernor of Madras referred to the Election Commission,which had its offices permanently located in New Delhi, thequestion whether the respondent was disqualified and couldbe allowed to sit and vote in the Assembly. The respondentthereupon applied to the High Court of Madras under Art. 226of the Constitution for a writ restraining the ElectionCommission(1) [1953] S.C.R. lI44.859from enquiring into his alleged disqualification formembership of the Assembly. This Court held that the powerof the High Court to issue writs under Art. 226 of theConstitution was subject to the two-fold limitation: (i)that such writs cannot run beyond the territories subject toits jurisdiction; and (ii) that the person or authority towhom the High, Court is empowered to issue writs must beamenable to the jurisdiction of the High Court either byresidence or location within the territories subject to itsjurisdiction. On that basis the writ petition wasdismissed. At the outset it may be noticed that there isone obvious difference between that case and the present


one. In that case the respondent was not the Union of Indiabut an authority which could have and had its location in aplace outside the Madras State. The present case satisfiesboth the conditions: the writ does not run beyond theterritorial jurisdiction of the High Court, as the UnionGovernment must be deemed to be "within" the saidterritories; the second condition is also satisfied, as theUnion Government, being within the State, is also amenableto its jurisdiction.The next case relied upon by the learned Solicitor Generalis a converse one. It is the decision of this Court in K.S. Rashid & Son v. The Income-tax Investigation Commission(1). In that case the Income-tax Investigation Commissionlocated in Delhi was investigating the case of thepetitioners under section 5 of the Taxation on Income(Investigation Commission) Act 1947, although thepetitioners were assessees belonging to Uttar Pradesh andtheir original assessments were made by the Income-taxauthorities of that State. It was contended that the PunjabHigh Court had no jurisdiction to issue a writ under Art.226 of the Constitution to the said Commission. This Court,after restating the two limitations on the power of the HighCourt to issue a writ, held that the Commission was amenableto the jurisdiction of the Punjab High Court and, therefore,the Punjab High Court had jurisdiction to issue the writ.This decision also(1) [1954] S.C.R. 738.860deals with a case of statutory authority located in Delhiand it has no application to the case of the UnionGovernment. The question whether the principles that applyto the Government of India would equally apply to statutoryauthorities situate in one State but exercising jurisdictionin another, does not arise for consideration in this case;though, as I have already expressed, I am prima facie of theview that there is no reason why they should not.Now coming to the decision of the High Courts, there is aclear enunciation of the relevant principles in Maqbul- Un-Nissa v. Union of India(1). The Full Bench of the AllahabadHigh Court directly decided the point now raised before us.The importance of the decision lies in the fact that thelearned Judges approached the problem without beingoppressed by the decision of this Court in Saka VenkataRao’s case (2), which was decided only subsequent to thatdecision. After considering the relevant Articles of theConstitution’ Sapru, J., speaking for the Full Bench,observed at pp. 293-294 thus:"The analogy between a government and a corporation or ajoint stock company which has its domicile in the placewhere its head office is situate is misleading. To holdthat the jurisdiction of this Court does not extend to theUnion Government as it has its capital at Delhi and must bedeemed to have its domicile at Delhi would be to place theUnion Government not only in respect of the rights concededin Part III but for any other purpose also beyond thejurisdiction of all State High Courts except the Punjab HighCourt."The learned Judge proceeded to state at p. 294-"In our opinion, the jurisdiction of this Court to interveneunder Article 226 depends not upon where the Headquarters orthe Capital of, the Government is situate but upon the factof the effect of the act done by Government, whether Unionor State being within the territorial limits of this Court.,Adverting to the words "any Government" in Art. 226, thelearned Judge observed at p. 292 thus:


(1) I.L.R. [1953] 2 AR. 289.(2) [1953] S.C.R. 1144.861"They indicate that the founding fathers knew that more thanone government would function within the same territory.))I entirely agree with the observations of the learned Judge,for they not only correctly construe the provisions of Art.226 but also give effect to the intention of theConstitution-makers.After the decision of this Court in Saka Yenkata Rao’s case(1) the High Court of Madhya Pradesh considered the questionin Surajmal v. State of M. P. (2). There, the CentralGovernment rejected an application for a mining lease andthe order rejecting the application was communicated to theapplicant who was residing in the State of Madhya Pradesh.It was held by the High Court that the writ asked for couldnot be issued so as to bind the Central Government because,"(a) the Central Government could not be deemed to bepermanently located or normally carrying on its businesswithin the jurisdiction of the High Court; (b) the record ofthe case which the Central Government decided was not beforethe High Court and could not be made available from anylegal custody within the State; (c) the order of the StateGovernment must be deemed to have merged in that of theCentral Government; (d) the order of the State Governmentcould not be touched unless the order of the CentralGovernment could be brought before the High Court andquashed." We are concerned here with the first and secondgrounds. The learned Chief Justice, who delivered thejudgment on behalf of the Full Bench, applied the principleof the decision of this Court in Saka Venkata Rao’s(1) tothe Union Government; and for the reasons already mentionedI am of opinion that the decision Is not applicable to thecase of the Union Government. The second reason in effectplaces the procedure ’on a higher pedestal than thesubstantive law. It is true that in a writ of certiorarithe records would be called for; but, if once it is heldthat the Union Government is within the State within themeaning of Art. 226 of the Constitution, I do not think whythe High Court in exercise(1) [1953] S.C.R. 1144. (2) A.I.R. 1958 M.P. 103,862of its constitutional power cannot direct the UnionGovernment to bring the records wherever its officers mighthave kept them. This second ground is really corollary tothe first, viz., that the Union Government is not within theterritorial jurisdiction of the High Court concerned.The Bombay High Court in Radheshyam Makhanlal v. The Unionof India (1) also held that a writ cannot issue against theUnion Government whose office is located outside theterritorial jurisdiction of the High Court. Shah, J.,applying the principle of the decision in Saka Venkata Rao’scase (2 ) to the Union Government hold that as the office ofthe Union Government was not located within the State ofBombay, the Bombay High Court could not issue a writ to theUnion Government. But S. T. Desai, J.,, was not willing togo so far, and he based his conclusion on a narrower ground,namely, that even if the writ was issued it could not beenforced. I have already pointed out that both the groundsare not tenable. The Union Government is within the Stateof Bombay in so far as it exercises its powers in that Stateand the High Court has got a constitutional power to issuewrites to the Union Government and, therefore, theirenforceability does not depend upon its officers residing ina particular place.


The foregoing discussion may be summed up in the followingpropositions: (1) The power of the High Court under Art. 226of the Constitution is of the widest amplitude and it is notconfined only to issuing of writs in the nature of habeascorpus, etc., for it can also issue directions or ordersagainst any person or authority, including in appropriatecases any Government. (2) The intention of the framers ofthe Constitution is clear, and they used in the Articlewords "any Government" which in their ordinary significancemust include the Union Government. (3) The High Court canissue a writ to run throughout the territories in relationto which it exercises jurisdiction. and to the person orauthority or Government within the said territories. (4) TheUnion Government has(1) A.I.R. 1960 Bom. 353.(2) [1953] S.C.R. 1144.863no constitutional situs in a particular place, but itexercises its executive powers in respect of matters towhich Parliament has power to make laws and the power inthis regard is exercisable throughout India; the UnionGovernment must, therefore, be deemed in law to havefunctional existence throughout India. (5) When byexercise of its powers the Union Government makes an orderinfringing the legal right or interest of a person residingwithin the territories in relation to which a particularHigh Court exercises jurisdiction, that High Court can issuea writ to the Union Government, for in law- it must bedeemed to be "within" that State also. (6) The High Court byissuing a writ against the Union Government is nottravelling beyond its territorial jurisdiction, as the orderis issued against the said Government "within" the State.(7) The fact that for the sake of convenience a particularofficer of the said Government issuing an order staysoutside the territorial limits of the High Court is not ofany relevance, for it is the Union Government that will haveto produce the record or carry out the order, as the casemay be. (8) The orders issued by the High Court cancertainly be enforced against the Union Government, as it isamenable to its jurisdiction, and if they are disobeyed itwill be liable to contempt. (9) Even if the Officersphysically reside outside its territorial jurisdiction, theHigh Court can always reach them under the Contempt ofCourts Act, if they choose to disobey the orders validlypassed against the Union Government which cannot easily byvisualized or ordinarily be expected. (10) The difficultiesin communicating the orders pertain to the rules ofprocedure and adequate and appropriate rules can be male forcommunicating the same to the Central Government or itsofficers.For the aforesaid reasons, I hold that Art. 32(2A) of theConstitution enables the High Court of Jammu & Kashmir toissue the writ to’ the Union Government in respect of theact done by it infringing the fundamental rights of theparties in that State.In the result,, I allow the appeal, set aside the order ofthe High Court and direct’ it to dispose of the864matter in accordance with law. The appellant will have hiscosts.DAS GUPTA, J.-I have had the advantage of reading thejudgments prepared by my Lord the Chief Justice and Mr.Justice Subba Rao. I agree with the conclusions reached bythe Chief Justice ’that the appeal should be dismissed. As,however, I have reached that conclusion by a slightly


different process of reasoning I propose to indicate thosereasons briefly.The facts have been fully stated in the judgment of My Lordthe Chief Justice and it is not necessary to repeat them.It is sufficient to state that the appellant filed anapplication to the High Court of Jam-mu & Kashmir underArticle 32(2A) of the Constitution for the issue of anappropriate writ, order or directions restraining the Unionof India and the State of Jammu & Kashmir from enforcing anorder conveyed in the Government of India’s letter datedJuly 31, 1954, whereby the Government of India ordered thepremature compulsory retirement of the appellant with effectfrom August 12, 1954. A preliminary objection was raised onbehalf of the respondents that Government of India is not aGovernment within the territorial limits of the jurisdictionof the Jammu and Kashmir High Court and so the applicationwas not maintainable. The High Court accepted thisobjection as valid and dismissed the application. The solequestion in controversy in appeal is whether the High Courthad jurisdiction, on the’facts and circumstances of thiscase, to issue a writ to the Government of India under Art.32(2A) of the Constitution.Article 32(2A) of the Constitution under which the appellantasked the High Court for relief is in the following words:-"Without prejudice to the powers conferred by clauses (1)and (2), the High Court shall have power throughout theterritories in relation to which it exercises jurisdictionto issue to any person or authority, including inappropriate cases, any Government within the territories,directions or orders or writs,865including 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 thisPart."Except for the fact that "the High Court" in this Articlemeans only the High Court of the State of Jammu & Kashmir,while Art. 226 of the Constitution refers to all other HighCourts and the further fact that power granted by thisArticle is for the enforcement only of the rights conferredby Part III of the Constitution while Art. 226 gives powerto the High Courts in the Union for the enforcement not onlyof the rights conferred by Part III but for any otherpurpose, the provisions of the two articles are exactly thesame. Power is given to the High Court to give relief incertain matters by issuing appropriate writs and orders to(1) any person; (2) any authority other than the Governmentand (3) any Government. The exercise of this power issubject to the existence of the condition precedent that theperson or the Government or the authority other than theGovernment must be "within the territories in relation towhich the High Court exercises jurisdiction". A speciallimitation in respect of the issue of writs or orders to aGovernment is introduced by the words "in appropriate cases"before the words "any Government". Leaving for laterconsideration the effect of the words "in appropriate cases"we have first to examine the question: when is a Governmentwithin the territories under the jurisdiction of aparticular High Court ? On behalf of the first respondent,the Union of India, it is urged that to be within the terri-tories under the jurisdiction of a High Court the Governmentmust be located within those territories. It is pointed outthat "any person"’ to be within any specified territorieshas to be present within those territories; an authorityother then Government has also, before it can be said to be


within any particular territories, a physical existencewithin those territories by having its office therein. Thesame requirement of location within the particularterritories, it is argued, should apply to the case ofGovernments. The866argument is no doubt attractive and at first sight evenplausible. On closer examination however it becomes evidentthat this argument oversimplifies the problem by slurringover the fallacious assumption that a, Government has alocation in the same way as any person or any authorityother than Government. Has the Government any location in asimilar sense in the same way as a person has a location atany point of time by being present at a particular place oran authority other than the Government can be said to belocated at the place where its office is situated ? There isno doubt that when we think of a Government, whether of theStates or of the Union we are thinking of the executiveorgan of the State. The executive power of the Union isunder Art. 53 vested in the President and is to be exercisedby him. The executive power of the States is vested in theGovernors of the States and has to be exercised by them.Does it follow however that the Government of India islocated at the place where the President resides andsimilarly the Government of each State is located at theplace where the Governor resides ? It has to be noticed thatwhile the Constitution contains specific provisions in Art.130 as to where the Supreme Court shall sit, no suchprovision is made as to where the President of India shallreside or exercise his executive power vested in him. Art.231 of the Constitution speaks of a principal seat for theHigh Court of each State. We search in vain however for anymention of any principal seat "for the President of India orthe Governors of the States". The fact that the Presidentof India has a special place of residence, the RashtrapatiBhawan in Delhi and the Governors of States have alsospecial places of residence at some places in the Stateknown as Rai Bhavan is apt to make us forget that theConstitution does not provide for any place ’of residencefor the President or Governors. There is nothing to preventthe President of India from having more than one permanentplace of residence within the Union. If this happens andplaces of residence are provided for the President of Indiain, say, Bombay, Calcutta and867Madras in addition to the residence at Delhi, can it be saidthat the Government of India is located in Delhi when thePresident of India resides in Delhi, it goes to Calcuttawhen he resides in Calcutta, it goes to Bombay when thePresident resides in Bombay and to Madras when the Presidentgoes and resides in Madras? This may seem at first sight afantastic illustration; but when we remember that in fact inthe days of British rule, the Viceroy had a permanent placeof residence at Simla for part of the year and anotherpermanent place of residence at Calcutta for part of theyear before 1911 and after 1911 one permanent place ofresidence in Delhi and another in Simla, it is easy to seethat what has been said above by way of illustration is byno means improbable. If therefore a Government is to beheld to be located at the place where the head of the State-the President of India in the case of the Government ofIndia and the Governor in the case of each State-resides, itmay well become impossible to speak of any particular placeas the place where the Government is located throughout theyear. This may not affect the question of any State


Government being within the territories of the High Court ofthe State. For whatever place the Governor may have for hisresidence is bound to be within the territories of theState. The position will however become wholly uncertainand difficult as regards the Government of India beingwithin the territorial jurisdiction of any particular HighCourt. For part of the year it may be, if the residence ofthe President be the criterion for ascertaining the locationof the Government, that the Government of India will bewithin the territories of one High Court and for other partsof the year in another High Court. It will be whollyunreasonable therefore to accept the test of residence ofthe President of India for deciding where the Government ofIndia is located.Finding the test of the President’s residence illusory, onemay try to say that the Government of India or of a State issituated at the place *here the offices of the Ministry aresituated. Under Art. 77, the President allocated thebusiness of the. Government of India868among the Ministers while under Art. 166 the Governor of aState allocates the business of the Government of a Stateexcept business with respect to which the Governor isrequired to act in his discretion among the Ministers of theState. If therefore it was correct to say that all theMinisters of the Government of India had to perform theirfunctions in respect of the business allocated to them atone particular place, it might be reasonable to say that theGovernment of India is located at that place. Similarly ifall the Ministers of a State had to perform their functionsin respect of the business allocated to them at oneparticular place the Government of the State might well besaid to be located at that place. The Constitution howevercontains no provision that all the Ministers of a Stateshall perform their functions at one particular place in theState nor that the Ministers of the Union will perform theirfunctions at one particular place in the State. Situationsmay arise not only in an emergency, but even in normaltimes, when some Ministers of the Government may find itnecessary and desirable to dispose of the business allocatedto them at places different from where the rest of theMinisters are doing so. The rehabilitation of refugees fromPakistan is part of the business of the Government of Indiaand for the proper performance of this business there is aMinistry of Rehabilitation for Refugees. It is well-knownthat the Minister in this Ministry has to perform a greatportion of his business at Calcutta ’in West Bengal andstays there for a considerable part of the year. Many ofthe offices of this Ministry are situated in Calcutta. Whatis true of this Ministry, may happen as regards otherMinistries also. Special circumstances may require thatsome portion of the business of the Minis. try of Commercebe performed at places like Bombay, Calcutta or Madras inpreference to Delhi, and if this happens the Minister towhom the business of Government of India in respect ofcommerce has been allocated will be transacting his businessat these places instead of at Delhi. If public interestrequires that the greater portion of the business of theMinistry of869Defence should for reasons of security or other reasons becarried on at some place away from Delhi the DefenceMinister will have to transact its business at that place.It is clear therefore that while at any particular point oftime it may be possible to speak of any Ministry of the


Government of India being located at a particular place, theGovernment of India as a whole may not necessarily belocated at that place. In my opinion, it is thereforeneither correct nor appropriate to speak of location of anyGovernment. Nor is it possible to find any othersatisfactory test for ascertaining the location of theGovernment of India.In Election Commission v. Saka Venkata Subba Rao (1) thisCourt held that before a writ under Art. 226 could issue toan authority, the authority must be located within theterritories under the jurisdiction of the High Court. Therehowever the Court was not concerned with the case of anyGovernment, and had no occasion to consider whether aGovernment could be said to have a location. The decisionin that case and in the later case of K. S. Rashid and Sonv. The Income-tax Investigation Commission, etc., (2) doesnot therefore bind us to hold that a Government has alocation in the same way as an authority like an ElectionCommission or an Income-tax Investigation Commission. Itappear,% reasonable therefore to hold that all that isrequired to satisfy the condition of a Government beingwithin the territories under the jurisdiction of a HighCourt is that the Government must be functioning withinthose territories. The Government of India functionsthroughout the territory of India. The conclusion cannottherefore be resisted that the Government of India is withinthe territories under the jurisdiction of every High Courtincluding the High Court of Jammu and Kashmir.The use of the words "any Government" appears to me to be anadditional reason for -thinking that the Government of Indiais within the territories under the jurisdiction of theJammu & Kashmir High Court. "Any Government" in the contextcannot but mean(1)[1953] S.C.R. 1144.(2) [1954] S.C.R. 738.870every Government. If the location test were to be appliedthe only Government within the territories of the State ofJammu and Kashmir would be the Government of Jammu andKashmir. It would be meaningless then to give the HighCourt the power to give relief against "any Government"within its territories. These words "any Government" wereused because the Constitution-makers intended that the HighCourt shall have power to give relief against the Governmentof India also.But, contends the respondent, that will produce anintolerable position which the Constitution-makers could nothave contemplated. The result of the Government of Indiabeing within the territories of every High Court in Indiawill, it is said, be that the Government of India would besubjected to writs and orders of every High Court in India.A person seeking relief against the Government of India willnaturally choose the High Court which is most convenient tohim and so the Government of India may have to faceapplications for relief as against the same order affectinga number of persons in all the different High Courts inIndia. If a position of such inconvenience to theGovernment of India’ though of great convenience to thepersons seeking relief, did in fact result from the wordsused by the Constitution-makers, I for one, would refuse toshrink from the proper interpretation of the words merely tohelp the Government. I do not however think that thatresult follows. For, on a proper reading of the words "inappropriate cases", it seems to me that there will be, forevery act or omission in respect of which relief can be


claimed, only one High Court that can exercise jurisdiction.It has first to be noticed that the limitation introduced bythe use of these words "in appropriate cases’ has not beenplaced in respect of issue of writs to persons and toauthorities other than government. It has been suggestedthat the effect of these words is that in issuing writsagainst any Government the High Court has not got the samefreedom as it has when issuing writs against any person orauthority other than871Government and that when relief is asked against aGovernment the High Court has to take special care to seethat writs are not issued indiscriminately but only inproper cases. I have no hesitation in rejecting thissuggestion. It cannot be seriously contemplated for amoment that the Constitution-makers intended to lay downdifferent standards for the courts when the relief is askedfor against the Government from when the relief is asked foragainst other authorities. In every case where relief underArt. 226 is sought the High Court has the duty to exerciseits discretion whether relief should be given or not. It isequally clear that in exercising such discretion the HighCourt will give relief only in proper cases and not in caseswhere the relief should not be granted.Why then were these words "in appropriate cases" used atall? It seems to me that the Constitution makers beingconscious of the difficulties that would arise if all theHigh Courts in the country were given jurisdiction to issuewrits against the Central Government on the ground that theCentral Government was functioning within its territorieswanted to give such jurisdiction only to that High Courtwhere the act or omission in respect of which- relief wassought had taken ’ place. In every case where relief issought under Art. 226 it would be possible to ascertain theplace where the act complained of was performed or when therelief is sought against an omission, the place where theact ought to have been performed. Once this place isascertained the High Court which exercises jurisdiction overthat place is the only High Court which has jurisdiction togive relief under Art. 226. That, in my view, is thenecessary result of the words "in appropriate cases".On behalf of the appellant it Was contended on the authorityof the decision of the Privy Council in Ryots of Garabandhov. Zemindar of Parlakimedi (1) that all that is necessary togive, jurisdiction to a High Court to act under Art. 226 isthat a part of the cause of action has arisen within the’;territories in relation to which it exercisesjurisdiction. The question whether the cause of actionattracts jurisdiction for relief(1) (1943) L.R. 70 I.A. 129.872under Art. 226 of the Constitution as in the case of suitswas considered by this Court in Saka Venkata Subba Rao’sCase (1) and the answer given was in the negative.Referring to the decision of the Privy Council inParlakimedi’s Case (2) this Court pointed out that thedecision did not turn on the construction of a statutoryprovision similar in scope, purpose or wording to Art. 226of the Constitution, and is not of much assistance in theconstruction of that article. Delivering the judgment ofthe Court Patanjali Sastri C. J. also observed:-"The rule that cause of action attracts jurisdiction insuits is based on statutory enactment and cannot apply towrits issuable under Art. 226 which makes no reference toany 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."This decision is binding on us, and I may respectfully addthat I find no reason to doubt its correctness.It is true that in that case the Court had to consider thequestion of jurisdiction in respect of an authority otherthan Government. It is difficult to see however why ifcause of action could not attract jurisdiction againstpersons and authorities other than Government it wouldattract jurisdiction as against a Government. It seems tome clear that the principle of basing jurisdiction on causeof action has not been introduced in the Constitution underArt. 226 or Art. 32(2A) of the Constitution.It may seem at first sight that to hold that the High Courtwithin whose jurisdiction the action or omission, complainedof took place will have jurisdiction, is in effect to acceptthe accrual of cause of action as the basis of jurisdiction.This however is not correct. The High Court within. thejurisdiction of which the act or omission takes place, hasjurisdiction, not because a part of the: cause of actionarose there, but in consequence of the use of the words "inappropriate cases".(1) [1953] S.C.R. 1144. (1) (1943) L.R. 70 I.A. 129.873The several cases in the High Court in which the questionnow before us has been considered have been referred to inthe majority judgment and also in the judgment of Mr.Justice Subba Rao and no useful purpose would be served indiscussing them over again.For the reasons discussed above I have reached theconclusion that while the Government of India is within theterritories of every High Court in India the only High Courtwhich has jurisdiction to issue a writ or order ordirections under Art. 226 or Art. 32 (2A) against it is theone within the territories under which the act or omissionagainst which relief was sought took place.In the present case the act against which the relief hasbeen sought was clearly performed at Delhi which is withinthe territories under the jurisdiction of the Punjab HighCourt and the Jammu and Kashmir High Court cannot thereforeexercise its jurisdiction under Art. 226.In the result, I agree with my Lord the Chief Justice thatthe appeal should be dismissed with costs.BY COURT. In accordance with the opinion of the majority ofthe Court, this appeal is dismissed with costs. Appeal dismissed.874

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