1. Challenge to premature retirement order — Writ petition under Article 32(2A) — Dispute over territorial jurisdiction of High Court against Union Government. (Para 1 , 2 )
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1960 Supreme(SC) 324
SUPREME COURT OF INDIA
B.P. SINHA, C.J.I., J.L. KAPUR, P.B. GAJENDRAGADKAR, K. SUBBA RAO, K.N. WANCHOO, K.C. DAS GUPTA AND J.C. SHAH JJ.
Lt. Col. Khajoor Singh, Appellant
Versus
Union of India and another, Respondents.
Civil Appeal No. 37 of 1955.
Advocates appeared
Mr. Vir Sen Sawhney, Advocate, for Appellant; Mr. C. K. Daphtary, Solicitor-General of India; Mr. B. R. L. Iyengar, R. H. Dhebar and T. M. Sen, Advocates, with him; for Respondents; Mr. Sardar Bahadur Advocate, for the Intervener.
Advocates:
B.R.L.Iyengar, C.K.DAFTARY, R.H.Dhebar, SARDAR BAHADUR SAHARYA, T.M.SEN, VIR SAIN SAWHNEY
B.R.L.Iyengar, C.K.DAFTARY, R.H.Dhebar, SARDAR BAHADUR SAHARYA, T.M.SEN, VIR SAIN SAWHNEY
Jurisdiction under Article 226 requires the authority to be resident or located within the High Court's territorial limits. The Union Government is located at its seat in the capital; thus, other High Courts lack jurisdiction regardless of where the cause of action arose or the order took effect.
Headnote:(A) Constitution of India - Articles 226 and 32(2A) - Jurisdiction of High Court to issue writs - Requirement of the person or authority to be "within those territories" - The exercise of power under Article 226 is subject to a two-fold limitation: first, the power is to be exercised throughout the territories in relation to which the High Court exercises jurisdiction, and second, the person or authority to whom the writ is issued must be within those territories, meaning they must be amenable to jurisdiction by residence or location. (Paras 8, 14)
(B) Location of Government - Distinction between the functioning of a government and its location - While a government may function throughout a territory, it is not located throughout that territory - The seat of the Union Government is in the capital; therefore, it is not located within the territorial jurisdiction of other High Courts. (Paras 13, 14)
(C) Cause of Action - Concept of cause of action cannot be introduced into Article 226 to determine jurisdiction - Jurisdiction depends solely on the residence or location of the person or authority passing the order, and not on where the order has effect or where the cause of action arose. (Paras 13, 15, 16)
Facts of the case:
An officer was prematurely retired by the Union Government. The officer challenged the legality of this decision in the High Court of the state where he resided, seeking a writ against the Union Government. The High Court dismissed the petition on the preliminary ground that the Union Government, being located outside its territorial limits, was not amenable to its jurisdiction.
Findings of Court:
The High Court correctly held that it lacked jurisdiction because the Union Government is located in the capital and not within the territories of the state in question. The residence of the aggrieved person or the effect of the order does not confer jurisdiction under Article 226.
Issues: Whether the Union Government is located in the capital irrespective of its authority extending throughout the country, and whether the accrual of a cause of action within a state confers jurisdiction on its High Court under Article 226.
Ratio Decidendi: The jurisdiction under Article 226 is strictly based on the residence or location of the person or authority within the territories over which the High Court exercises jurisdiction. The Union Government's seat is in the capital; thus, it is not "within" other states. The place where an order takes effect or where the cause of action arises is irrelevant for determining jurisdiction under this Article, as introducing such concepts would lead to conflict of jurisdiction.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
- constitutional law
- administrative law
- practice and procedure
Table of Contents
2. Whether Union Government is amenable to High Court jurisdiction based on functional presence or cause of action versus requirement of physical location within territorial limits. (Para 5 , 6 )
3. Distinction between functioning and location of Government — Rejection of cause of action as a basis for writ jurisdiction under Article 226. (Para 11 , 12 , 13 , 15 , 16 )
4. Jurisdiction under Article 226 depends on the residence or location of the person or authority within the High Court's territories, not on the cause of action. (Para 8 , 13 , 14 , 16 )
5. Appeal dismissed; High Court's order upholding the preliminary objection on lack of territorial jurisdiction affirmed. (Para 18 , 60 )
6. Does the term authority in Article 226 include the Government?
Yes, the court held that the phrase including in appropriate cases any Government clarifies that the word authority in the context of Article 226 can include any Government. (Para 12 )
7. Does the cause of action determine the territorial jurisdiction of a High Court for issuing writs under Article 226?
No, the court ruled that the rule of cause of action attracting jurisdiction applies to suits but not to writs under Article 226, which requires the person or authority to be within the territories. (Para 7 , 15 , 16 )
8. Is the Union Government considered within the territories of every State High Court because it functions throughout India?
No, the court distinguished between functioning and location. While the Union Government functions throughout India, its seat is in New Delhi, making it amenable only to the High Court within whose jurisdiction New Delhi falls. (Para 13 , 14 )
9. Does the fact that a government order has an effect within a state grant that state's High Court jurisdiction to issue a writ?
No, the court held that the residence or location of the person affected by the order is irrelevant; jurisdiction depends solely on the location of the person or authority passing the order. (Para 13 )
Judgment
SINHA, C.J.I. (For himself and Kapur, Gajendragadkar, Wanchoo and J. C. Shah JJ.) : This appeal on a certificate of fitness granted by the High Court of Judicature, Jammu and Kashmir, is directed against the judgment and order dated December 7, 1954, in an application under Art. 32(2A) of the Constitution for issue of a writ, directions or order against the Union of India, through the Secretary, Ministry of Defence, New Delhi, as the first respondent and the State of Jammu and Kashmir through the Chief Secretary, Jammu and Kashmir State, as the second respondent.
2. The petition is based on the following allegations. The petitioner will be referred to as the appellant in the course of this judgment. He was aged 45 years 262 days on August 12, 1954. He was holding a regular commission in the Jammu and Kashmir State Forces, which were amalgamated with the Defence Forces of the Union with effect from September 1, 1949. The appellants holding the substantive rank of Lieut. Col, in the amalgamated forces had the right to continue in service until he attained the age of 53 years, which event will happen on November 20, 1961. The Government of India issued a letter dated July 31, 1954, retiring the appellant from the service with effect from August 12, 1954. This decision of the Government of India is not based on any allegations or charge of inefficiency, indiscipline or any other irregularity on the part of the appellant. The aforesaid decision of the Government of India prematurely retiring the appellant is impugned as illegal, unwarranted and discriminatory and as having been made in contravention of Art. 16(1) of the Constitution.
3. The petition was opposed on behalf of the respondents aforesaid on a number of preliminary grounds of which it is only necessary to mention the first, namely, that the authority against whom the writ is sought, that is to say, respondent No. 1, being outside the territorial limits of the jurisdiction of the Jammu and Kashmir High Court, the same was not maintainable. This preliminary objection was heard by a Division Bench, (Janki Nath Wazir, C. J. and M. A. Shahmiri, J.), Jammu and Kashmir High Court. By its judgment dated December 7, 1954, the High Court upheld the preliminary objection. The High Court, relying upon the decisions of this Court in Election Commission, India v. Saka Venkata Subba Rao , 1953 SCR 1144 and K. S. Rashid and son v. The Income Tax Investigation Commission etc. , 1954 SCR 738 held that it had no jurisdiction to issue a writ against the first respondent and, therefore, dismissed the petition, but the High Court granted the necessary certificate under Art. 132 of the Constitution; hence this appeal.
4. The matter was first heard by a Bench of five judges. In the course of hearing it became clear to us that the appellant not only sought to distinguish the two decisions aforesaid of this Court, but questioned the correctness of those decisions. Hence this larger Bench was constituted in order to examine the correctness of the decisions aforesaid of this Court on the strength of which the High Court had refused to entertain the appellant s petition, on merits.
5. It has been argued on behalf of the appellant, in the first instance, that the previous decisions of this Court were distinguishable on the ground that they did not, in terms, consider the question whether the Government of India was amenable to the jurisdiction of the High Court under Art. 226 or of the Jammu and Kashmir High Court under Art. 32(2A) of the Constitution; that those provisions, on a true construction, would not stand in the way of the appellant, inasmuch as the Government of India has no location and its authority is present throughout the Union territory: that the correct test is whether or not the cause of action arose within the territorial limits of the High Courts jurisdiction; that the High Court was in error in holding that the term "authority" included a Government.
