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
December 5
The Judgment of Sinha C J Kapur Gajendragadkar Wanchoo and Shah JJ was delivered by Sinha C J Subba Rao J and Das Gupta J delivered separate judgments
SINHA C J
This appeal on a certificate of fitness 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 article 322A of the Constitution for issue of
a writ directions or
order against the Union of India through the Secretary Ministry of Defence New Delhi a the first respondent and the State of Jammu and Kashmir through the Chief Secretary Jammu and Kashmir State as the second respondent
The petition is based on the following allegations
The petitioner will be referred to as the appellant in the course of this judgment
He was aged 45 years 832 262 days on August 12 1954
He was holding a regular commission in the Jammu and Kashmir State Forces which were amalgamated with the Defence Forces of the Union with effect from September 1 1949
The appellant holding the substantive rank of Lieut
Col in the amalgamated forces had the right to continue in service until he attained the age of 53 years which event will happen on November 20 1961
The Government of India issued a letter dated July 31 1954 retiring the appellant from the service with effect from August 12 1954 This decision of the Government of India is not based on any allegations or charge of inefficiency indiscipline or any other irregularity on the part of the appellant
The aforesaid decision of the Government of India prematurely retiring the appellant is impugned as illegal unwarranted and discriminatory and as having been made in contravention of article 161 of the Constitution
The petition was opposed on behalf of the respondents aforesaid on a number of preliminary grounds of which it is only necessary to mention the first namely that the authority against whom the writ is sought that is to say respondent No 1 being outside the territorial limits of the jurisdiction of the Jammu and Kashmir High Court the same was not maintainable
This preliminary objection was heard by a Division Bench Janki Nath Wazir C J and M A Shahmiri J Jammu and Kashmir High Court
By its judgment
dated December 7 1954 the High Court upheld the preliminary objection
The High Court relying upon the decisions of this Court in Election Commission India vs Saka Venkata Subba Rao 1 and K section Rashid and Son vs The Income tax Investigation Commission etc
2 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 article 132 of the Constitution hence this appeal
The matter was first heard by a Bench of five judges
in the course of hearing it became clear to us that the appellant not only sought to distinguish 1  2  833 the two decisions aforesaid of this Court but questioned the correctness of those decisions
Hence this larger Bench was constituted in order to examine the correctness of the decisions aforesaid of this Court on the strength of which the High Court had refused to entertain the appellant s petition on merits
It has been argued on behalf of the appellant in the first instance that the previous decisions of this Court were distinguishable on the ground that they did not in terms consider the question whether the Government of India wag amenable to the jurisdiction of the High Court under article 226 or of the Jammu and  Kashmir High Court under article 322A of the Constitution
that those provisions on a true construction would not stand in the way of the appellant inasmuch as the Government of India has no location and its authority is present throughout the Union territory that the correct test is whether or not the cause of action arose within the territorial limits of the High Court s jurisdiction that the High Court was in error in holding that the term authority included a Government
In answer to these contentions on behalf of the appellant the learned Solicitor General contended that on a proper construction of the relevant provisions of the Constitution it is clear that Sastri C J s observations relating to authority in the case of Election Commission India vs Saka Venkata Subba Rao 1 applied with equal force to Government inincluding the Union Government
The Government of India functions through its officers and therefore the location contemplated means the place at which the orders impugned are ordinarily passed
The considerations in a suit with reference to the cause of action for the suit do not stand on the same footing in a writ matter because the writ has to reach the particular officers of the Government concerned
The expression in appropriate cases means that there may be cases where though the Union Government as such is not located within the territorial limits of a High Court yet a writ may be issued against it by the High 1  834 Courts because an officer of the Union Government is functioning within such limits and it is his order which is the subject matter of the controversy
Therefore it is not in every case that a High Court can issue a writ against the Union
A writ of mandamus for example is directed against a particular named person or authority
Similarly a writ of certiorari is directed against a particular record
Therefore the writ must issue to someone within the territorial limits of the High Court s jurisdiction
The question that we have to determine in this case is of far reaching importance and is not a matter of first impression
The question was first raised in this Court in 1952 and was determined by a Constitution Bench in the case of Election Commission India vs Saka Venkata Subba Rao 1
In that case a writ was applied for in the Madras High Court for restraining the Election Commission from enquiring into the alleged disqualification of the respondent
A single Judge of the High Court of Judicature of Madras issued a writ of prohibition restraining the Election Commission a statutory authority constituted by the President of India with its office permanently located at New Delhi when the matter was heard by the learned single Judge of the High Court
In the High Court the Election Commission demurred to the jurisdiction of the Court to issue any writ against it on the ground that the Commission was not within the territory in relation to which the High Court exercised jurisdiction apart from other objections
The learned Judge of the High Court overruled the preliminary objection and decided the case on merits and issued a writ prohibiting the Commission from  proceeding with the enquiry
The learned Judge granted the certificate under article 132 that the case involved a substantial question of law as to the interpretation of the Constitution
The Election Commission accordingly came up in appeal to this Court and challenged the jurisdiction of the Madras High Court to issue the writ it had purported to do
This Court overruled the contention on behalf of the respondent which was 1  835 based on the decision of the Privy Council in the Parlakimedi case 1 that the jurisdiction of the High Court to issue a writ is analogous to the jurisdiction of a court to grant a decree or order against persons outside the limits of its local jurisdiction provided that the cause of action arose within those limits
This Court overruled that contention in these words The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories  in relation to which the High Court exercises jurisdiction
The Constitution Bench in that case considered that the language of article 226 of the Constitution was reasoriably plain and that the exercise of the power conferred by that Article was subject to a two fold limitation namely 1 that the power is to be exercised throughout the territories in relation to which it exercises jurisdiction and 2 that the person or authority to whom the High Court is empowered to issue the writs must be within those territories
In other words the writ of the Court could not run beyond the territories subject to its jurisdiction and that the person or authority affected by the writ must be amenable to the Court s jurisdiction either by residence or location within those territories
The second case of this Court which dealt with this question is K section Rashid and Son vs The Income Tax Investigation Commission 2
That was a case on appeal from the judgment and order dated August 10 1950 of the High Court of Judicature Punjab at Simla in a number of miscellaneous matters in which the High Court had been moved under articles 226 and 227 of the Constitution praying for quashing proceedings started against the appellants under the Taxation on Income Investigation Commission Act XXX of 1947
It was prayed in the High Court that a writ of prohibition might issue against the Income Tax 1 1943 LR 70 IA 129
2  836 Investigation Commission directing it not to proceed with the investigation of cases referred to it under the provisions of the Act
The writ petitions in the High Court were opposed on behalf of the Commission on a number of grounds one of them being that the Pun
jab High Court had no jurisdiction to issue the writs prayed for under article 226 of the Constitution simply because the Commission was located in Delhi
Reliance was placed on behalf of the Commission on the decision of the Privy Council in the Parliament case 1 that the substance of the matter was that the assessees against whom the investigation had been started belonged to U P and all the assessment pro ceedings including reference to the High Court would lie in Uttar Pradesh
The High Court gave effect to this contention and dismissed the application primarily on the ground that the High Court had no jurisdiction to issue the writ to the Commission
The assessees came up in appeal to this Court and this Court substantially adopted the reasons given by it in its previous judgment in the case of Election Commission India vs Saka Venkata Subba Rao 2
It is to be noted that when the High Court of Punjab decided the case the decision of this Court referred to above had not been given
Relying upon its previous decision this Court held that the Punjab High Court was in error in holding that it had no jurisdiction to deal with the matter under article 226 of the Constitution
The appeal was dismissed by this Court on other grounds not material to this case
Learned counsel for the appellant has contended that the two decisions of this Court referred to above are distinguishable from the facts of the present case inasmuch as in those cases the Election Commission and the Income tax Investigation Commission were statutory bodies which had their location in Delhi and therefore this Court held that the Punjab High Court was the High Court within whose jurisdiction those bodies functioned and had their location and were therefore amenable to its jurisdiction
He further contended that the Union Government functioned throughout the territory of India and could 1 1943 LR 70 IA 129
2  837 not be said to be located only in Delhi simply because the capital for the time being was in Delhi
In this connection strong reliance was placed on the decision of the Full Bench of the Allahabad High Court in Maqbulunnissa vs Union of India 1
That case does lend a great deal of support to this contention on behalf of the appellant
It was held by the High Court in that case that the words any Government in article 2261 of the Constitution clearly indi cated that the Allahabad High Court had jurisdiction to entertain the petition under article 226 not only against the State of Uttar Pradesh but also against the Union Government for the issue of a writ in the nature of mandamus directing the Government to forbear from giving effect to the order asking the petitioner to leave India
The ratio of the decision was that even though the capital of the Government of India is in Delhi its executive power extends throughout the territory of India and that the real test to determine the jurisdiction would be the residence of the petitioners and the effect of the impugned order upon them
After holding that the High Court had the jurisdiction to entertain the petition the Court dismissed it on other grounds not material to this case
The Allahabad High Court distinguished the decision of a Division Bench of the Calcutta High Court dated January 17 1951 in the case of The Lloyds Bank Limited vs The Lloyds Bank Indian Staff Association Calcutta Branches 2 which was unreported till then
In that case Harries C J speaking for the Court had held that though article 226 of the Constitution had gone beyond the English practice by providing that writs in the nature of prerogative writs could issue even against a Government that Government most be located within the territorial limits of the Court which was moved to exercise its power under that Article
He further observed that the Government of India could not be said to be located in the State of West Bengal and therefore writs under article 226 could not issue against that Government by the High Court of Calcutta
That 1 IL R 1953 2 All 289
2 ILR 838 decision of the Calcutta High Court was distinguished by the Allahabad High Court on the ground that the effects of the orders of the Union Government were not operative within the jurisdiction of the Court
It may be added that that decision came up in appeal to this Court in Civil Appeal No 42 of 1952 but the appeal was dismissed by this Court by its judgment dated April 20 1952 on other grounds
It will be noticed that when the Allahabad decision so strongly relied upon by the appellant was given the two decisions referred to above of this Court were not there
The Allahabad High Court may not have given that judgment if the two decisions of this Court had then been in existence
The two main questions which arise therefore are i whether the Government of India as such can be said to have a location in a particular place viz New Delhi irrespective of the fact that its authority extends over all the States and its officers function throughout India and ii whether there is any scope for introducing the concept of cause of action as the basis of exercise of jurisdiction under article 226
Before however we deal with these two main questions we would like to clear the ground with respect to two subsidiary matters which have been urged on behalf of the appellant
The first argument is that the word authority used in article 226 cannot and does not include Government
We are not impressed by this argument
In interpreting the word authority we must have regard to the clause immediately following it
article 226 provides for the issue to any person or authority including in appropriate cases any Government within those territories
It is clear that the clause including in appropriate cases any Government goes with the preceding word authority and on a plain and reasonable construction it means that the word  authority in the context may include any Government in an appropriate case
The suggestion that the said clause is intended to confer discretion on the High Courts in the matter of issuing a writ or direction on any Government seems to us clearly unsustainable 839 To connect this clause with the issuance of a writ or order and to suggest that in dealing with cases against Government the High Court has to decide whether the case is appropriate for the issue of the order is plainly not justified by the rules of grammar
We have no hesitation in holding that the said clause goes with the word authority and that its effect is that the authority against whom jurisdiction is conferred on the High Court to issue a writ or appropriate order may in certain cases include a Government
Appro priate cases in the context means cases in which orders passed by a Government or their subordinates are challenged and the clause therefore means that where such orders are challenged the High Court may issue a writ against the Government
The position therefore is that under article 226 power is conferred on the High Court to issue to any person or authority or in a given case to any Government writs or orders there specified for enforcement of any of the rights conferred by Part III and for any other purpose
Having thus dealt with the two subsidiary points raised before us we may now proceed to consider the two main contentions which arise for our decision in the present appeal
This brings us to the first question namely whether the Government of India as such can be said to be located at one place namely New Delhi
The main argument in this connection is that the Government of India is all pervasive and is functioning throughout the territory of India and therefore every High Court has power to issue a writ against it as it must be presumed to be located within the territorial jurisdiction of all State High Courts
This argument in our opinion confuses the concept of location of a Government with the concept of its functioning  A Government may be functioning all over a State or all over India but it certainly is not located all over the State or all over India
It is true that the Constitution has not provided that the seat of the Government of India will be at New Delhi
That however does not mean  that the Government of India as such has no seat where it is located
It is common knowledge that the seat of the 840 Government of India is in New Delhi and the Government as such is located in New Delhi
The absence of a provision in the Constitution can make no difference to this fact
What we have to see therefore is whether the words of article 226 mean that the person or authority to whom a writ is to be issued has to be resident in or located within the territories of the High Court issuing the writ The relevant words of article 226 are these Every High Court shall have power to issue to any person or authority within those territories 
So far as a natural person is concerned there can be no doubt that he can be within those territories only if he resides therein either permanently or temporarily
So far as an authority is concerned there can be no doubt that if its office is located therein it must be within the territory
But do these words mean with respect to an authority that even though its office is not located within those territories it will be within those territories because its order may affect persons living in those territories Now it is clear that the jurisdiction conferred on the High Court by article 226 does not depend upon the residence or location of the person applying to it for relief it depends only on the person or authority against whom a writ is sought being within those territories
It seems to us therefore that it is not permissible to read in article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court
That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court s jurisdiction
Thus if a person residing or located in Bombay for example is aggrieved by an order passed by an authority located say in Calcutta the forum in which he has to seek relief is not the Bombay High Court though the order may affect him in Bombay but the Calcutta High Court where the authority passing the order is located
It would therefore in our opinion be wrong to introduce in article 226 the concept of the place where the order 841 passed has effect in order to determine the jurisdiction of the High Court which can give relief under article 226
The introduction of such a concept may give a rise to confusion and conflict of jurisdictions
Take  for example the case of an order passed by an authority in Calcutta which affects six brothers living say  in Bombay Madras Allahabad Jabalpur Jodhpur and Chandigarh
The order passed by the authority in Calcutta has thus affected persons in six States
Can it be said that article 226 contemplates that all the six High Courts have jurisdiction in the matter of giving relief under it The answer must obviously be No  if one is to avoid confusion and conflict of jurisdiction
As we read the relevant words of article 226 quoted above there can be no doubt that the jurisdiction conferred by that Article on a High Court is with respect to the location or residence of the person or authority passing the order and there can be no question of introducing the concept of the place where the order is to have effect in order to determine which High Court can give relief under it
It is true that this Court will give such meaning to the words used in the Constitution as would help towards its working smoothly
If we were to introduce in article 226 the concept of the place where the order is to have effect we would not be advancing the purposes for which article 226 has been enacted
On the other hand we would be producing conflict of jurisdiction between various High Courts as already shown by the illustration given above
Therefore the effect of an order by whomsoever it is passed can have no relevance in determining the jurisdiction of the High Court which can take action under article 226
Now functioning of a Government is really nothing other than giving effect to the orders passed by it
Therefore it would not be right to introduce in article 226 the concept of the functioning of Government when determining the meaning of the words any person or authority within those territories
By introducting the concept of functioning in these words we shall be creating the same conflict which would arise if the concept of the place where the order is to have effect is introduced in 842 article 226
There can therefore be no escape from the conclusion that these words in article 226 refer not to the place where the Government may be functioning but only to the place where the person or authority is either resident or is located
So far therefore as a natural person is concerned he is within those territories if he resides there permanently or temporarily
So far
as an authority other than a Government is concerned it is within the territories if its office is located there
So far as a Government is concerned it is within the territories only if its seat is within those territories
The seat of a Government is sometimes mentioned in the Constitutions of various countries but many a time the seat is not so mentioned
But whether the seat of a Government is mentioned in the Constitution or not there is undoubtedly a seat from which the Government as such functions as a fact
What article 226 requires is residence or location as a fact and if therefore there is a seat from which the Government functions as a fact even though that seat is not mentioned in the Constitution the High Court within whose territories that seat is located will be the High Court having jurisdiction under AA
226 so far as the orders of the Government as such are concerned
Therefore the view taken in Election Commission India vs Saka Venkata Subba Rao 1 and KS Rashid and Son vs The Income tax Investigation Commission 2 that there is two fold limitation on the power of the High Court to issue writs etc
under article 226 namely i the power is to be exercised throughout the territories in relation to which it exercises jurisdiction  that is to say the writs issued by the Court cannot run beyond the territories subject to its jurisdiction and ii the person or authority to whom the High Court is empowered to issue such writs must be within those territories which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories is the correct one
This brings us to the second point namely whether 1  2  843 it is possible to introduce the concept of cause of action in article 226 so that the High Court in whose jurisdiction the cause of action arose would be the proper one to pass an order thereunder
Reliance in this connection has been placed on the judgment of the Privy Council in Ryots of Garabandho vs Zamindar of Parlakimedi 1
In that case the Privy Council held that even though the impugned order was passed by the Board of Revenue which was located in Madras the High Court would have no jurisdiction to issue a writ quashing that order as it had no jurisdiction to issue a writ beyond the limits of the city of Madras except in certain cases and that particular matter was not within the exceptions
This decision of the Privy Council does appa rently introduce an element of the place where the cause of action arose in considering the jurisdiction of the High Court to issue a writ
The basis of the at decision however was the peculiar history of the issue of writs by the three Presidency High Courts as successors of the Supreme Courts though on the literal construction of cl 8 of the Charter of 1800 conferring jurisdiction on the Supreme Court of Madras there could be little doubt that the Supreme Court would have the same jurisdiction as the Justices of the Court of King s Bench Division in England for the territories which then were or thereafter might be subject to or depend upon the Government of Madras
It will therefore not be correct to put too much stress on the decision in that case
The question whether the concept of cause of action could be introduced in article 226 was also considered in Saka Venkata Subba Rao s case  2  and was repelled in these words The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories  in relation to which the High Court exercises jurisdiction
 Article 226 as it stands does not refer anywhere to 1 1943 LR 70 IA 129
2  844 the accrual of cause of action and to the jurisdiction of the High Court depending on the place where the cause of action accrues being within its territorial jurisdiction
Proceedings under article 226 are not suits they provide for extraordinary remedies by a special procedure and give powers of correction to the High Court over persons and authorities and these special powers have to be exercised within the limits set for them
These two limitations have already been indicated by us above and one of them is that the person or authority concerned must be within the territories over which the High Court exercises juris diction
Is it possible then to overlook this constitu tional limitation and say that the High Court can issue a writ against a person or authority even though it may not be within its territories simply because the cause of action has arisen within those territories It seems to us that it would be going in the face of the express provision in article 226 and doing away with an express limitation contained therein if the concept of cause of action were to be introduced in it
Nor do we think that it is right to say that because article 300 specifically provides for suits by and against the Government of India the proceedings under article 226 are also covered by article 300
It seems to us that article 300 which is on the same line as section L76 of the Government of India Act 1935 dealt with suits as such and proceedings analogous to or consequent upon suits and has no reference to the extraordinary remedies provided by article 226 of the Constitution
The concept of cause of action cannot in our opinion be introduced in article 226 for by doing so we shall be doing away with the express provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction
It is true that this may result in some inconvenience to persons residing far away from Now Delhi who are aggrieved by some order of the Government of India as such and that may be a reason for making a suit
able constitutional amendment in article 226
But the argument of inconvenience in our opinion
cannot 845 affect the plain language of article 226 nor can the concept of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it
We have given our earnest consideration to the language of article 226 and the two decisions of this Court referred to above
We are of opinion that unless there are clear and compelling reasons which cannot be denied we should not depart from the interpretation given in these two cases and indeed from any interpretation given in an earlier judgment of this Court unless there is a fair amount of unanimity that the earlier decisions are manifestly wrong
This Court should not except when it is demonstrated beyond all reasonable doubt that its previous ruling given after due deliberation and full hearing was erroneous go back upon its previous ruling particularly on a constitutional issue
In this case our reconsideration of the matter has confirmed the view that there is no place for the introduction of the concept of the place where the impugned order has effect or of the concept of functioning of a Government apart from the location of its office concerned with the case or even of the concept of the place where the cause of action arises in article 226 and that the language of that Article is plain enough to lead to the conclusion at which the two cases of this Court referred to above arrived If any inconvenience is felt on account of this interpretation of article 226 the remedy seems to be a constitutional amendment
There is no scope for avoiding the inconvenience by an interpretation which 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 hereby dismissed with costs
SUBBARAO J I have had the advantage of perusing the judgment prepared by my Lord the Chief Justice
I regret my inability to agree
I would not have ventured to differ from his weighty opinion but for the fact that the acceptance of the contention of 107 846 the respondents would practically deprive the majority of citizens of our country of the benefit of cheap expeditious and effective remedy given to them under article 226 of the Constitution against illegal acts of the Union Government
If the relevant provisions are clear and unambiguous the said contention must prevail however deleterious the effect may be to public interest
But if the words of the Article are capable of two or more interpretations one that will carry out the intention of the Constituent Assembly and the other that would defeat it the former interpretation must necessarily be accepted
We must also bear in mind that the provisions of the Constitution are not  mathematical formulae which have their essence in mere form
It being an organic statute its provisions must be construed broadly and not in a pedantic way but without doing violence to the language used
The facts have been fully stated in the judgment of my Lord the Chief Justice and it would be redundant to restate them
It would be enough if I formulate the point of law raised and express my opinion thereon
The question is whether the appellant who is a citizen of India and is residing in the State of Kashmir can enforce his fundamental right under Art 322A of the Constitution by filing an appropriate writ petition in the High Court of Jammu  Kashmir if his right is infringed by an order of the Union Government
The Constitution of India has been made applicable to the State of 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 said Order cl
3 of article 32 of the Constitution was deleted and a new clause 2A was inserted after cl
The question falls to be decided on a true construction of the said el
2A which reads Without prejudice to the powers conferred by clauses 1 and 2 the High Court shall have power throughout the territories in rotation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within these territories directions or orders or writs 847 including writs in the nature of habeas corpus mandamus prohibition quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by this Part
 The operative part of this clause is in pari materia with article 226 of the Constitution with the difference that the words for any other purpose found in the latter Article are omitted in the former
Though the power of the High Court of Jammu  Kashmir is limited to that extent in other respects it is as extensive as that of the other High Courts under article 226
The object of the amendment is self evident it was enacted to enable the said High Court to protect the fundamental rights of the citizens of India in that part of the country
The learned Solicitor General broadly contends that this Court has construed the analogous provisons of article 226 of the Constitution and held that the writs under that Article do not run beyond the territories in relation to which a High Court exercises jurisdiction and that a High Court cannot issue a writ thereunder unless the person or authority against whom the writ is sought is physically resident or located within the territorial jurisdiction of that High Court and that therefore on the same parity of reasoning the High Court of Jammu  Kashmir cannot issue a writ to run beyond the territories of that State against the Union Government functioning through its officers in New Delhi
Learned counsel for the appellant contends on the other hand that neither article 322A nor article 226 bears any such limited construction and that on a liberal and true construction of the said constitutional provisions it must be held that the High Court can issue a writ against any Government including the Union Government exercising the functions within the territories of a State if it infringes the right of a person in that State
Before I attempt to construe the provisions of el
2A of article 32 I think it would be convenient to trace briefly the history of article 226 for it throws a flood of light on the legislative intention expressed in 848 article 322A
In pre independence India the High Courts other than the High Courts in the presidency towns of Bombay Calcutta and Madras had no power to issue prerogative writs even in the case of the said presidency High Courts the power to issue writs was very much circumscribed their jurisdiction to issue the said writs was confined only to the limits of their original jurisdiction and the Governments were excluded from its scope
But the framers of our Constitution with the background of centuries of servility with the awareness of the important role played by the High Court of England in protecting the rights of its citizens when they were infringed by executive action with the knowledge of the effective and impartial part played by the High Courts in pre independence India within the narrow limits of their jurisdiction to protect the rights of the citizens of our country with a vision to prevent autocracy raising its ugly head in the future declared the fundamental rights in Part III of the Constitution conferred powers on the High Courts to issue to any person or authority including in appropriate cases any Government directions orders or writs for the enforcement of the fundamental rights or for any other purpose
In short any person of India can approach an appropriate High Court to protect his rights against any person authority or any Government if his fundamental right or any other right is infringed by the said person authority or Government
If the contention of the respondents be accepted whenever the Union Government infringes the right of a person in any remote part of the country
 he must come all the way to New Delhi to enforce his right by filing a writ petition in the Circuit Bench of the Punjab High Court
If a common man residing in Kanyakumari the southern most part of India his illegally detained in prison or deprived of his property otherwise than by law by an order of the Union Government it would be a travesty of fundamental rights to expect him to come to New Delhi to seek the protection of the High Court of Punjab
This construction of the provisions of article 226 would attribute to the framers 849 of the Constitution an intention to confer the right on a person and to withhold from him for all practical purposes the remedy to enforce his right against the Union Government
Obviously it could not have been the intention of the Constituent Assembly to bring about such an anomalous result in respect of what they conceived to be a cherished right conferred upon the citizens of this country
In that event the right conferred turns out to be an empty one and the object of the framers of the Constitution is literally defeated
The scope of article 226 vis a vis the reach of the High Courts  power has been considered in two decisions of this Court namely Election Commission India vs Saka Venkata Rao 1 and K section Rashid and Son vs The Income tax Investigation Commission 2
As this Bench of seven Judges is constituted to enable this Court to approach the problem with a fresh mind unhampered by precedents I propose to scrutinize the provisions of article 322A free from the curbs imposed by the earlier decisions
The core of the Article is discernible in the following clause and phrases throughout the territories in relation to which it exercises its jurisdiction any Government within those territories directions or orders or writs including writs in the nature of habeas corpus etc
 The wore throughout the territories etc delimit the territorial jurisdiction of the High Courts in the matter of issuing directions or writs
A High Court exercises jurisdiction throughout the State in which it is located
Its writs run only through
out the State and not beyond its territorial limits
The main object of the powers to keep the authorities or tribunals within their bounds and to prevent them from infringing the fundamental or other rights of citizens
At the instance of an aggrieved person it can issue one or other of the writs or orders or directions against the offending authority in respect of an act done or omitted tot be done by it
It is implicit in the limitation that the impugned act must affect a person or property amenable to its territorial jurisdiction
1  2  850 This question in a different context has been considered by the Judicial Committee of the Privy Council in Ryots of Garabandho vs Zemindar of Parlaki medi 1
There the Board of Revenue situated in the State of Madras under section 172 of the Madras Estates Land Act 1908 enhanced the rents payable by the ryots in three villages including Parlakimedi village in the district of Ganjam in the Northern Circars
The question was whether the Madras High Court had power to issue a writ to quash the order of the Board
of Revenue as the parties to that litigation were not subject to the original jurisdiction of the Madras High Court
The Judicial Committee held that the Madras High Court had no jurisdiction to issue a writ of certiorari to run beyond the territorial limits of that High Court
When it was contended that as the Revenue Board was in Madras the High Court had jurisdiction to quash its order the Judicial Committee repelled that contention with the follow ing remarks at p 164 The Board of Revenue has always had its offices in the Presidency Town and in the present case the Collective Board which made the order complained of issued this order in the town
On the other hand the parties are not subject to the original jurisdiction of the High Court and the estate of Parlakimedi ties in the north of the province  
Their Lordships think that the question of jurisdiction must be regarded as one of substance and that it would not have been within the competence of the Supreme Court to claim jurisdiction over such a matter as the present by issuing certiorari to the Board of Revenue on the strength of its location in the town
Such a view would give jurisdiction to the Supreme Court in the matter of settlement of rents for ryoti holdings in Ganjam between parties not otherwise subject to its jurisdiction which it would not have had over the Revenue Officer who dealt with the matter at first instance This decision in clear terms lays emphasis on the substance of the matter and holds that mere physical 1 1943 LR 70 IA 129
851 presence of an authority within the jurisdiction of a High Court does not enable that Court to issue writs against the said authority in respect of an order made in a dispute between persons residing outside the territorial jurisdiction of the said High Court
Therefore a High Court s jurisdiction to issue an appropriate writ depends on the co existence of two conditions namely i the cause of action has accrued within the territories in relation to which it has jurisdiction and ii the said authority is within the said territories
This interpretation may give rise to a criticism it may be asked which High Court could give the relief if the cause of action accrues within the territorial jurisdiction of one High Court and the authority concerned is located within that of another High Court There may
be statutory authorities with all India jurisdiction but for convenience located in a particular State
In exercise of the powers conferred under statutes they may make orders affecting the rights of parties residing in different States
I am prima facie of the view that the said authorities in so far as their orders operate in a particular territory will be within those territories and the High Court which exercises its jurisdiction throughout that territory can issue a suitable writ against the said authorities
This interpretation avoids the anomaly of one High Court issuing a writ against an authority located within its territorial jurisdiction in respect of a cause of action accruing in another State or territory over which it has no jurisdiction
But this question does not arise in this case for we re mainly concerned with the Union Government
Article 226 of the Constitution is expressed in wide and most comprehensive terms
There is no difficulty about
the words person or authority but the phrase including any Government gives rise to a conflict of opinion
If the framers of the Constitution intended to extend simply the power of the High Court to issue writs only against the Government of the State they could have stated or the Government of the State instead they designedly used the words any Government which at first sight appear rather involved but on a deeper scrutiny reveal that the words 852 any Government cannot mean only the Government of the State
The word any clearly presupposes the existence of more than one Government functioning in a State
Under the Constitution two Governments function in each State
Under article 1 India shall be a Union of States and the territory of India shall comprise inter alia the territories of the States
Part 11 provides for one class of citizens that is citizens of India
In whatever State a person with the requisite qualifications of a citizen may reside he is a citizen of India and not of that particular State
All the three departments of the Union as well as the State function in the State both Parliament and the Legislature of the State make laws which govern the State in respect of matters allotted to them respectively
Both the Union and the State executive powers extend to the
State and the former is exercised in regard to matters with respect to which Parliament has power to make laws and the latter in regard to matters with respect to which the Legislature of the State has power to make laws see articles 73 and 162
The Judiciary consists of an hierarchy of courts and all the courts from the lowest to the Supreme Court exercise jurisdiction in respect of a cause of action arising in that State
The demarcation between the Union Government and the State Government is therefore not territorial but only  subjectwise and both the Governments function within the State
With this background it is easy to perceive that any Government must include the Union Government for two State Governments cannot administer the same State though for convenience or as a temporary arrangement the offices of one State may be located in another State
Then it is asked why the Article confers power to issue writs against any Government only in appropriate cases
There are two answers to this question
Till the Constitution was framed there was no power in a High Court to issue a writ even against the Provincial Government
The Constitution conferred for the first time a power on the High Court to issue a writ not only against the State Government but also the Union Government
As the 853 Union Government has sway over not only the State in question but beyond it it became necessary to administer a caution that a writ can only be issued in appropriate cases
The High Court s jurisdiction is limited in the matter of issuing writs against the Union Government for it cannot issue writs against it in respect of a cause of action beyond its territorial jurisdiction
There may also be a case where the secretariat of one of the State Governments is located in another State temporarily
In such a case also the High Court of the latter State cannot issue writs against that State Government as it is not appropriate to issue such writs for the cause of action accrues  within the 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 those territories
It is said that the Union Government is not within the territories of the State for its headquarters are in Delhi
The Article does not use the word headquarters resident or location
The dictionary meaning of the word within is inside of not out of or beyond
The connotation of the words takes colour from the context in which they are used
A person may be said to be within a territory if he resides therein
He may also be within a territory if he temporarily enters the said territory or is in the course of passing through the territory
Any authority may be in a territory if its office is located therein
It may also be said to be within a territory if it exercises its powers therein and if it can make orders to bind persons for properties therein
So too a Government may be within a State if it has a legal situs in that State
It may also be said to be within a State if it administers the State though for convenience some of its executive authorities are residing outside the territory
We must give such meaning to these words as would help the working of the Constitution rather than retard it
To put it differently can it be said that the Union Government 108 854 is within a particular State Union Government in the present context means the executive branch of the Government
Where is it located To answer this question it is necessary to consider what is Union Government
The Constitution in Part V under the heading
The Union deals with separate subjects namely the executive the Parliament and the Union judiciary
Under article 53 the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution
Article 74 provides for a council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions
By article 77 all executive action of the Government of India shall be expressed to be taken in the name of the President and el
3 thereof authorizes the President to make rules for the more convenient transaction of the business of the Government of India and for the allocation among Ministers of the said business
Article 73 says that subject to the provisions of the Constitution the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws and to the exercise of such rights authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement
The Constitution nowhere fixes the seat of the Union Government or even that of the President
Shortly stated the Union Government is the President acting on the advise of the Ministers directly or through officers subordinate to him in accordance with the Constitution and the jurisdiction of the said Government extends so far as is relevant to the present purpose to matters in respect of which Parliament has power to make laws
The question that immediately arises is what is the situs of such a Government There is no statutory situs
For convenience of administration the officers of such Government may stay at one place or they may be distributed in different places the President may
reside in one place the Prime Minister in another the 855 Ministers in a third place and the officers through whom the President exercises his powers in a place different from the rest
What happens when the Secretariat remains in New Delhi and the President resides for some months in a year in say Hyderabad Contrary wise what would be the position if the President stays in New Delhi and the entire or part of the Secretariat or some of the Ministers stay in Hyderabad It is therefore not possible to apply the test of residence or location in the absence of any statutory situs
The Union Government has no fixed legal abode it is present throughout the territories over which it exercises jurisdiction and in respect whereof it can make effective and binding orders in the field allotted to it by the Constitution
The constitutional situs of the Union Government is the entire territories of the Union and it is within the territories of India and therefore within the territories of every State
Let us look at the problem from another standpoint
Under article 300 of the Constitution the Government of India may sue or be sued by the name of the Union of India
The word sued is used in a general sense and cannot be narrowly construed in the Constitution as to comprehend only action by way of filing a suit in a civil court
According to Webster it 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 the Supreme Court is also consistent with the wide meaning attributed to it for writs are filed against the Government of India only in the name of the Union of India
Union of India is a juristic person and it is impossible to predicate its residence in a particular place in the Union
Its presence Synchronizes with the limits of the Union territories
That is the reason why that Order XXVII rule 3 Code of Civil Procedure says that in suits by or against the Government instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant it shall be sufficient to insert the appropriate name as provided in section 79 Section 79 of the 856 Civil Procedure Code is in terms analogous to article 300 of the Constitution and under that section In a suit by or against the Government the authority to be named as plaintiff or defendant as the case may be shall be a in the case of a suit by or against the Central Government 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 of residence being given in the plaint or the written statement as the case may be
The suit by or against the Union Government shall be filed in a court which has jurisdiction to entertain such a suit having regard to the provisions of sections 15 to 20 of the said Code
On the same analogy it may be held that the Union of India has no legal situs in a particular place and a writ petition can be filed against it in a place within the jurisdiction of the High Court wherein the cause of action accrues
It is said that the limits of the power to issue a writ are implicit in the nature of a particular writ
What is the nature of the principal writs namely habeas corpus mandamus prohibition quo warranto and certiorari The writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention whether in prison or in private custody
The writ of mandamus is in form a command directed to any person corporation or inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty An order of prohibition is an order directed to an inferior tribunal forbidding it to continue with the proceedings pending therein
An information in the nature of a quo warranto lies against a person who claimed or usurped an office franchise or liberty to inquire by what authority he supported his claim
A certiorari is directed to an authority requiring the record of the proceedings in some cause or matter to 857 be transmitted into the High Court to be dealt with there
 See Halsbury s Laws of England Vol
II 3rd edition
It was asked how could the liberty of a subject be secured the command be issued the proceedings of an inquiry be prohibited the credentials of a person to hold office be questioned the records of a proceeding be directed to be transmitted to the High Court if the authority concerned wag located or the person directed resided outside
the territorial jurisdiction of the High Court It was also asked how if the said authority or person disobeyed the order of the High Court it could be enforced against the said authority or person
On the parity of the same reasoning the argument proceeded that as the officers acting for the Government of India reside in Delhi a writ which would become brutum fulmen could not be issued by the High Court
The questions so posed are based on a misapprehension of the relevant provisions of the Constitution
They also mix up the nature of the writs with the procedure in dealing with the writs or enforcing the orders made therein
As I have already indicated the Article confers a power on the High Court to issue writs against the Union Government
If the said Government is within the State is it an answer to it that an officer of the Government dealing with a particular paper or papers is residing outside the territorial jurisdiction of the High Court If the Union Government is bound by the order of the High Court the question of service of notice on a particular officer acting for the Government or to enforce an order against him is a matter pertaining to the realm of procedure and appropriate rules calf be framed by the High Court or the requisite law made by the Parliament
If the Union Government disobeys the order it would certainly be liable for contempt of court under the 
Even if the con temner happens to be an officer of the said Government residing outside the territorial limits of the High Court the High Court has ample power to reach him under section 5 of the said Act
858 The analogy drawn from English law is rather misleading
England is comparatively a small country and it has only one Government functioning throughout the State
The problem that has arisen now could not have arisen in England for the jurisdiction of the Queen s Bench Division of the High Court extends throughout England
In England the manner of the exercise of the jurisdiction was also regulated by a procedure brimming with technicalities but later on simplified by statute
The framers of our Constitution therefore designedly used the words in the nature of indicating that they were not incorporating in the Constitution the entire procedure followed in England for the procedure will have to be evolved having regard to the federal structure of our Government
How can the procedural law of England in the matter of writs be bodily lifted and implanted in India This Court shall have to put a reasonable construction on the words without being unduly weighed down by the historical background of these writs and construe the Article in such a way if legally permissible to carry out the intention of the Constitution makers
That apart Article 226 of the Constitution is not confined to the prerogative writs in vogue in England
The Article enables the appropriate High Court to issue also directions or orders and there is no reason why the High Court could not in an appropriate case give a suitable direction to or make a proper order on the Union Government
Such directions or orders are certainly free from the procedural technicalities of the said writs
I shall now notice briefly the decisions cited at the Bar
The first is the decision of this Court in Election Commission India vs Saka Venkata Rao1
There the Governor of Madras referred to the Election Commission which had its offices permanently located in New Delhi the question whether the respondent was disqualified and could be allowed to sit and vote in the Assembly
The respondent thereupon applied to the High Court of Madras under article 226 of the Constitution for a writ restraining the Election Commission 1 1953 SCR lI44 859 from enquiring into his alleged disqualification for membership of the Assembly
This Court held that the power of the High Court to issue writs under article 226 of the Constitution was subject to the two fold limitation i that such writs cannot run beyond the territories subject to its jurisdiction and ii that the person or authority to whom the High Court is empowered to issue writs must be amenable to the jurisdiction of the High Court either by residence or location within the territories subject to its jurisdiction
On that basis the writ petition was dismissed
At the outset it may be noticed that there is one obvious difference between that case and the present one
In that case the respondent was not the Union of India but an authority which could have and had its location in a place outside the Madras State
The present case satisfies both the conditions the writ does not run beyond the territorial jurisdiction of the High Court as the Union Government must be deemed to be within the said territories the second condition is also satisfied as the Union Government being within the State is also amenable to its jurisdiction
The next case relied upon by the learned Solicitor General is a converse one
It is the decision of this Court in K section Rashid  Son vs The Income tax Investigation Commission 1
In that case the Income tax Investigation Commission located in Delhi was investigating the case of the petitioners under section 5 of the Taxation on Income Investigation Commission Act 1947 although the petitioners were assessees belonging to Uttar Pradesh and their original assessments were made by the Income tax authorities of that State
It was contended that the Punjab High Court had no jurisdiction to issue a writ under article 226 of the Constitution to the said Commission
This Court after restating the two limitations on the power of the High Court to issue a writ held that the Commission was amenable to the jurisdiction of the Punjab High Court and therefore the Punjab High Court had jurisdiction to issue the writ
This decision also 1  860 deals with a case of statutory authority located in Delhi and it has no application to the case of the Union Government
The question whether the principles that apply to the Government of India would equally apply to statutory authorities situate in one State but exercising jurisdiction in another does not arise for consideration in this case though as I have already expressed I am prima facie of the view that there is no reason why they should not
Now coming to the decision of the High Courts there is a clear enunciation of the relevant principles in Maqbul Un Nissa vs Union of India1
The Full Bench of the Allahabad High Court directly decided the point now raised before us
The importance of the decision lies in the fact that the learned Judges approached the problem without being oppressed by the decision of this Court in Saka Venkata Rao s case 2 which was decided only subsequent to that decision
After considering the relevant Articles of the Constitution  Sapru J speaking for the Full Bench observed at pp
293 294 thus The analogy between a government and a corporation or a joint stock company which has its domicile in the place where its head office is situate is misleading
To hold that the jurisdiction of this Court does not extend to the Union Government as it has its capital at Delhi and must be deemed to have its domicile at Delhi would be to place the Union Government not only in respect of the rights conceded in Part III but for any other purpose also beyond the jurisdiction of all State High Courts except the Punjab High Court
 The learned Judge proceeded to state at p 294 In our opinion the jurisdiction of this Court to intervene under Article 226 depends not upon where the Headquarters or the Capital of the Government is situate but upon the fact of the effect of the act done by Government whether Union or State being within the territorial limits of this Court Adverting to the words any Government in article 226 the learned Judge observed at p 292 thus 1 ILR 2  861 They indicate that the founding fathers knew that more than one 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 article 226 but also give effect to the intention of the Constitution makers
After the decision of this Court in Saka Yenkata Rao s case 1 the High Court of Madhya Pradesh considered the question in Surajmal vs State of M P 2
There the Central Government rejected an application for a mining lease and the order rejecting the application was communicated to the applicant who was residing in the State of Madhya Pradesh
It was held by the High Court that the writ asked for could not be issued so as to bind the Central Government because a the Central Government could not be deemed to be permanently located or normally carrying on its business within the jurisdiction of the High Court b the record of the case which the Central Government decided was not before the High Court and could not be made available from any legal custody within the State c the order of the State Government must be deemed to have merged in that of the Central Government d the order of the State Government could not be touched unless the order of the Central Government could be brought before the High Court and quashed
 We are concerned here with the first and second grounds
The learned Chief Justice who delivered the judgment on behalf of the Full Bench applied the principle of the decision of this Court in Saka Venkata Rao s1 to the Union Government and for the reasons already mentioned I am of opinion that the decision Is not applicable to the case of the Union Government
The second reason in effect places the procedure on a higher pedestal than the substantive law
It is true that in a writ of certiorari the records would be called for but if once it is held that the Union Government is within the State within the meaning of article 226 of the Constitution I do not think why the High Court in exercise 1  2 AIR 1958 MP 103 862 of its constitutional power cannot direct the Union Government to bring the records wherever its officers might have kept them
This second ground is really corollary to the first viz that the Union Government is not within the territorial jurisdiction of the High Court concerned
The Bombay High Court in Radheshyam Makhanlal vs The Union of India 1 also held that a writ cannot issue against the Union Government whose office is located outside the territorial jurisdiction of the High Court
Shah J applying the principle of the decision in Saka Venkata Rao s case 2  to the Union Government hold that as the office of the Union Government was not located within the State of Bombay the Bombay High Court could not issue a writ to the Union Government
But section T Desai J was not willing to go so far and he based his conclusion on a narrower ground namely that even if the writ was issued it could not be enforced
I have already pointed out that both the grounds are not tenable
The Union Government is within the State of Bombay in so far as it exercises its powers in that State and the High Court has got a constitutional power to issue writes to the Union Government and therefore their enforceability does not depend upon its officers residing in a particular place
The foregoing discussion may be summed up in the following propositions 1 The power of the High Court under article 226 of the Constitution is of the widest amplitude and it is not confined only to issuing of writs in the nature of habeas corpus etc for it can also issue directions or orders against any person or authority including in appropriate cases any Government
2 The intention of the framers of the Constitution is clear and they used in the Article words any Government which in their ordinary significance must include the Union Government
3 The High Court can issue a writ to run throughout the territories in relation to which it exercises jurisdiction
and to the person or authority or Government within the said territories
4 The Union Government has 1 AIR 1960 Bom
2  863 no constitutional situs in a particular place but it exercises its executive powers in respect of matters to which Parliament has power to make laws and the power in this regard is exercisable throughout India the Union Government must therefore be deemed in law to have functional existence throughout India
5 When by exercise of its powers the Union Government makes an order infringing the legal right or interest of a person residing within the territories in relation to which a particular High Court exercises jurisdiction that High Court can issue a writ to the Union Government for in law it must be deemed to be within that State also
6 The High Court by issuing a writ against the Union Government is not travelling beyond its territorial jurisdiction as the order is issued against the said Government within the State
7 The fact that for the sake of convenience a particular officer of the said Government issuing an order stays outside the territorial limits of the High Court is not of any relevance for it is the Union Government that will have to produce the record or carry out the order as the case may be
8 The orders issued by the High Court can certainly be enforced against the Union Government as it is amenable to its jurisdiction and if they are disobeyed it will be liable to contempt
9 Even if the Officers physically reside outside its territorial jurisdiction the High Court can always reach them under the  if they choose to disobey the orders validly passed against the Union Government which cannot easily by visualized or ordinarily be expected
10 The difficulties in communicating the orders pertain to the rules of procedure and adequate and appropriate rules can be male for communicating the same to the Central Government or its officers
For the aforesaid reasons I hold that article 322A of the Constitution enables the High Court of Jammu  Kashmir to issue the writ to  the Union Government in respect of the act done by it infringing the fundamental rights of the parties in that State
In the result I allow the appeal set aside the order of the High Court and direct  it to dispose of the 864 matter in accordance with law
The appellant will have his costs
DAS GUPTA J
I have had the advantage of reading the judgments prepared by my Lord the Chief Justice and Mr Justice Subba Rao
I agree with the conclusions reached by the 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 those reasons briefly
The facts have been fully stated in the judgment of My Lord the Chief Justice and it is not necessary to repeat them
It is sufficient to state that the appellant filed an application to the High Court of Jam mu  Kashmir under Article 322A of the Constitution for the issue of an appropriate writ order or directions restraining the Union of India and the State of Jammu  Kashmir from enforcing an order conveyed in the Government of India s letter dated July 31 1954 whereby the Government of India ordered the premature compulsory retirement of the appellant with effect from August 12 1954
A preliminary objection was raised on behalf of the respondents that Government of India is not a Government within the territorial limits of the jurisdiction of the Jammu and Kashmir High Court and so the application was not maintainable
The High Court accepted this objection as valid and dismissed the application
The sole question in controversy in appeal is whether the High Court had jurisdiction on the facts and circumstances of this case to issue a writ to the Government of India under article 322A of the Constitution
Article 322A of the Constitution under which the appellant asked 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 the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within the territories directions or orders or writs 865 including writs in the nature of habeas corpus mandamus prohibition quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by this Part
 Except for the fact that the High Court in this Article means only the High Court of the State of Jammu  Kashmir while article 226 of the Constitution refers to all other High Courts and the further fact that power granted by this Article is for the enforcement only of the rights conferred by Part III of the Constitution while article 226 gives power to the High Courts in the Union for the enforcement not only of the rights conferred by Part III but for any other purpose the provisions of the two articles are exactly the same
Power is given to the High Court to give relief in certain matters by issuing appropriate writs and orders to 1 any person 2 any authority other than the Government and 3 any Government
The exercise of this power is subject to the existence of the condition precedent that the person or the Government or the authority other than the Government must be within the territories in relation to which the High Court exercises jurisdiction
A special limitation in respect of the issue of writs or orders to a Government is introduced by the words in appropriate cases before the words any Government
Leaving for later consideration the effect of the words in appropriate cases we have first to examine the question when is a Government within the territories under the jurisdiction of a particular 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 Government must be located within those territories
It is pointed out that any person  to be within any specified territories has to be present within those territories an authority other then Government has also before it can be said to be within any particular territories a physical existence within those territories by having its office therein
The same requirement of location within the particular territories it is argued should apply to the case of Governments
The 866 argument is no doubt attractive and at first sight even plausible
On closer examination however it becomes evident that this argument oversimplifies the problem by slurring over the fallacious assumption that a Government has a location in the same way as any person or any authority other than Government
Has the Government any location in a similar sense in the same way as a person has a location at any point of time by being present at a particular place or an authority other than the Government can be said to be located at the place where its office is situated  There is no doubt that when we think of a Government whether of the States or of the Union we are thinking of the executive organ of the State
The executive power of the Union is under article 53 vested in the President and is to be exercised by him
The executive power of the States is vested in the Governors of the States and has to be exercised by them
Does it follow however that the Government of India is located at the place where the President resides and similarly the Government of each State is located at the place where the Governor resides  It has to be noticed that while the Constitution contains specific provisions in article 130 as to where the Supreme Court shall sit no such provision is made as to where the President of India shall reside or exercise his executive power vested in him
article 231 of the Constitution speaks of a principal seat for the High Court of each State
We search in vain however for any mention of any principal seat for the President of India or the Governors of the States
The fact that the President of India has a special place of residence the Rashtrapati Bhawan in Delhi and the Governors of States have also special places of residence at some places in the State known as Rai Bhavan is apt to make us forget that the Constitution does not provide for any place of residence for the President or Governors
There is nothing to prevent the President of India from having more than one permanent place of residence within the Union
If this happens and places of residence are provided for the President of India in say Bombay Calcutta and 867 Madras in addition to the residence at Delhi can it be said that the Government of India is located in Delhi when the President of India resides in Delhi it goes to Calcutta when he resides in Calcutta it goes to Bombay when the President resides in Bombay and to Madras when the President goes and resides in Madras This may seem at first sight a fantastic illustration but when we remember that in fact in the days of British rule the Viceroy had a permanent place of residence at Simla for part of the year and another permanent place of residence at Calcutta for part of the year before 1911 and after 1911 one permanent place of residence in Delhi and another in Simla it is easy to see that what has been said above by way of illustration is by no means improbable
If therefore a Government is to be held to be located at the place where the head of the State the President of India in the case of the Government of India and the Governor in the case of each State resides it may well become impossible to speak of any particular place as the place where the Government is located throughout the year
This may not affect the question of any State Government being within the territories of the High Court of the State
For whatever place the Governor may have for his residence is bound to be within the territories of the State
The position will however become wholly uncertain and difficult as regards the Government of India being within the territorial jurisdiction of any particular High Court
For part of the year it may be if the residence of the President be the criterion for ascertaining the location of the Government that the Government of India will be within the territories of one High Court and for other parts of the year in another High Court
It will be wholly unreasonable therefore to accept the test of residence of the President of India for deciding where the Government of India is located
Finding the test of the President s residence illusory one may try to say that the Government of India or of a State is situated at the place here the offices of the Ministry are situated
Under article 77 the President allocated the business of the
Government of India 868 among the Ministers while under article 166 the Governor of a State allocates the business of the Government of a State except business with respect to which the Governor is required to act in his discretion among the Ministers of the State
If therefore it was correct to say that all the Ministers of the Government of India had to perform their functions in respect of the business allocated to them at one particular place it might be reasonable to say that the Government of India is located at that place
Similarly if all the Ministers of a State had to perform their functions in respect of the business allocated to them at one particular place the Government of the State might well be said to be located at that place
The Constitution however contains no provision that all the Ministers of a State shall perform their functions at one particular place in the State nor that the Ministers of the Union will perform their functions at one particular place in the State
Situations may arise not only in an emergency but even in normal times when some Ministers of the Government may find it necessary and desirable to dispose of the business allocated to them at places different from where the rest of the Ministers are doing so
The rehabilitation of refugees from Pakistan is part of the business of the Government of India and for the proper performance of this business there is a Ministry of Rehabilitation for Refugees
It is well known that the Minister in this Ministry has to perform a great portion of his business at Calcutta in West Bengal and stays there for a considerable part of the year
Many of the offices of this Ministry are situated in Calcutta
What is true of this Ministry may happen as regards other Ministries also
Special circumstances may require that some portion of the business of the Minis
try of Commerce be performed at places like Bombay Calcutta or Madras in preference to Delhi and if this happens the Minister to whom the business of Government of India in respect of commerce has been allocated will be transacting his business at these places instead of at Delhi
If public interest requires that the greater portion of the business of the Ministry of 869 Defence should for reasons of security or other reasons be carried on at some place away from Delhi the Defence Minister will have to transact its business at that place
It is clear therefore that while at any particular point of time it may be possible to speak of any Ministry of the Government of India being located at a particular place the Government of India as a whole may not necessarily be located at that place
In my opinion it is therefore neither correct nor appropriate to speak of location of any Government
Nor is it possible to find any other satisfactory test for ascertaining the location of the Government of India
In Election Commission vs Saka Venkata Subba Rao 1 this Court held that before a writ under article 226 could issue to an authority the authority must be located within the territories under the jurisdiction of the High Court
There however the Court was not concerned with the case of any Government and had no occasion to consider whether a Government could be said to have a location
The decision in that case and in the later case of K section Rashid and Son vs The Income tax Investigation Commission etc 2 does not therefore bind us to hold that a Government has a location in the same way as an authority like an Election Commission or an Income tax Investigation Commission
It appear reasonable therefore to hold that all that is required to satisfy the condition of a Government being within the territories under the jurisdiction of a High Court is that the Government must be functioning within those territories
The Government of India functions throughout the territory of India
The conclusion cannot therefore be resisted that the Government of India is within the territories under the jurisdiction of every High Court including the High Court of Jammu and Kashmir
The use of the words any Government appears to me to be an additional reason for thinking that the Government of India is within the territories under the jurisdiction of the Jammu  Kashmir High Court Any Government in the context cannot but mean 11953 SCR 1144
2  870 every Government
If the location test were to be applied the only Government within the territories of the State of Jammu and Kashmir would be the Government of Jammu and Kashmir
It would be meaningless then to give the High Court the power to give relief against any Government within its territories
These words any Government were used because the Constitution makers intended that the High Court shall have power to give relief against the Government of India also
But contends the respondent that will produce an intolerable position which the Constitution makers could not have contemplated
The result of the Government of India being within the territories of every High Court in India will it is said be that the Government of India would be subjected to writs and orders of every High Court in India
A person seeking relief against the Government of India will naturally choose the High Court which is most convenient to him and so the Government of India may have to face applications for relief as against the same order affecting a number of persons in all the different High Courts in India
If a position of such inconvenience to the Government of India  though of great convenience to the persons seeking relief did in fact result from the words used by the Constitution makers I for one would refuse to shrink from the proper interpretation of the words merely to help the Government
I do not however think that that result follows
For on a proper reading of the words in appropriate cases it seems to me that there will be for every 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 by the use of these words in appropriate cases  has not been placed in respect of issue of writs to persons and to authorities other than government
It has been suggested that the effect of these words is that in issuing writs against any Government the High Court has not got the same freedom as it has when issuing writs against any person or authority other than 871 Government and that when relief is asked against a Government the High Court has to take special care to see that writs are not issued indiscriminately but only in proper cases
I have no hesitation in rejecting this suggestion
It cannot be seriously contemplated for a moment that the Constitution makers intended to lay down different standards for the courts when the relief is asked for against the Government from when the relief is asked for against other authorities
In every case where relief under article 226 is sought the High Court has the duty to exercise its discretion whether relief should be given or not
It is equally clear that in exercising such discretion the High Court will give relief only in proper cases and not in cases where the relief should not be granted
Why then were these words in appropriate cases used at all It seems to me that the Constitution makers being conscious of the difficulties that would arise if all the High Courts in the country were given jurisdiction to issue writs against the Central Government on the ground that the Central Government was functioning within its territories wanted to give such jurisdiction only to that High Court where the act or omission in respect of which relief was sought had taken  place
In every case where relief is sought under article 226 it would be possible to ascertain the place where the act complained of was performed or when the relief is sought against an omission the place where the act ought to have been performed
Once this place is ascertained the High Court which exercises jurisdiction over that place is the only High Court which has jurisdiction to give relief under article 226
That in my view is the necessary result of the words in appropriate cases
On behalf of the appellant it Was contended on the authority of the decision of the Privy Council in Ryots of Garabandho vs Zemindar of Parlakimedi 1 that all that is necessary to give jurisdiction to a High Court to act under article 226 is that a part of the cause of action has arisen within the territories in relation to which it exercises jurisdiction
The question whether the cause of action attracts jurisdiction for relief 1 1943 LR 70 IA 129
872 under article 226 of the Constitution as in the case of suits was considered by this Court in Saka Venkata Subba Rao s Case 1 and the answer given was in the negative
Referring to the decision of the Privy Council in Parlakimedi s Case 2 this Court pointed out that the decision did not turn on the construction of a statutory provision similar in scope purpose or wording to article 226 of the Constitution and is not of much assistance in the construction of that article
Delivering the judgment of the Court Patanjali Sastri C J also observed The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories  in relation to which the High Court exercises jurisdiction
 This decision is binding on us and I may respectfully add that I find no reason to doubt its correctness
It is true that in that case the Court had to consider the question of jurisdiction in respect of an authority other than Government
It is difficult to see however why if cause of action could not attract jurisdiction against persons and authorities other than Government it would attract jurisdiction as against a Government
It seems to me clear that the principle of basing jurisdiction on cause of action has not been introduced in the Constitution under article 226 or article 322A of the Constitution
It may seem at first sight that to hold that the High Court within whose jurisdiction the action or omission complained of took place will have jurisdiction is in effect to accept the accrual of cause of action as the basis of jurisdiction
This however is not correct
The High Court within
the jurisdiction of which the act or omission takes place has jurisdiction not because a part of the cause of action arose there but in consequence of the use of the words in appropriate cases
1  1 1943 LR 70 IA 129
873 The several cases in the High Court in which the question now before us has been considered have been referred to in the majority judgment and also in the judgment of Mr Justice Subba Rao and no useful purpose would be served in discussing them over again
For the reasons discussed above I have reached the conclusion that while the Government of India is within the territories of every High Court in India the only High Court which has jurisdiction to issue a writ or order or directions under article 226 or article 32 2A against it is the one within the territories under which the act or omission against which relief was sought took place
In the present case the act against which the relief has been sought was clearly performed at Delhi which is within the territories under the jurisdiction of the Punjab High Court and the Jammu and Kashmir High Court cannot therefore exercise its jurisdiction under article 226
In the result I agree with my Lord the Chief Justice that the appeal should be dismissed with costs
BY COURT
In accordance with the opinion of the majority of the Court this appeal is dismissed with costs
Appeal dismissed


Summary:
The High Court of
Jammu and Kashmir relying on the decisions of this Court in Election Commission India vs Saka Venkata Subba Rao  and K section Rashid and Son vs The Income Tax Investigation Commission etc
   dismissed an application for a writ made by the appellant against the Union of India and Anr
under article 322A the relevant provisions of which are in the matter of enforcement of fundamental rights the same as in article 226 of the Constitution on the preliminary objection that the said application was not maintainable against the Union of India as it was outside the territorial jurisdiction of that Court
The appellant s case was that he was holding the substantive rank of Lieut
Col in Jammu and Kashmir and had the right to continue in service until he attained the age of 53 on November 20 1961 but was prematurely retired by a letter issued by the Government of India on July 31 1954 without any allegation or charge and in contravention of article 161 of the Constitution
Held that there can be no doubt as to the correctness of the decisions relied on by the High Court and the appeal must fail
829 The jurisdiction of the High Court under article 226 of the Constitution properly construed depends not on the residence or location of the person affected by the order but of the person or authority passing the order and the place where the order has effect cannot enter into the determination of such jurisdiction
Since functioning of a Government really means giving effect to its order such functioning cannot determine the meaning of the words any person or authority within these territories occurring in the article
A natural person therefore is within those territories if he resides there permanently or temporarily an authority other than the Government is within those territories if its office is located there and a Government if its seat from which in fact it functions is there
It is not correct to say that the word authority in article 226 cannot include a Government
That word has to be read along with the clause including in appropriate cases any Government immediately following it which properly construed means that the word may include any Government in an appropriate case
That clause is not connected with the issuance of a writ or order and is not intended to confer discretion on the High Courts in the matter of issuing a writ or direction on any Government and only means in such cases where the authority against whom the High Court has jurisdiction to issue the writ happens to be a Government or its subordinates the High Court may issue a writ against the Government
Election Commission India vs Saka Venkata Subba Rao and K section Rashid and Son vs The Income tax Investigation Commission etc
   approved
Maqbulunnissa vs Union of India ILR 1953 2 All 289 overruled
The Lloyds Bank Limited vs The Lloyds Bank Indian Staff Association Calcutta Branches ILR  referred to
Proceedings under article 226 are not suits covered by article 300 of the Constitution
Such proceedings provide for extra ordinary remedies by a special procedure and there is no scope for introducing the concept of cause of action in it in the face of the express limitation imposed by it that the person or authority concerned must be within the territories over which the High Court exercises jurisdiction
Ryots of Garabandho vs Zamindar of Parlakimedi 1943 LR 70 IA 129 held inapplicable
The resulting inconvenience of such an interpretation of article 226 to persons residing far way from New Delhi where the Government of India is in fact located and aggrieved by some order passed by it may
be a reason for suitably amending the Article but cannot affect its plain language
This Court should not except when it is demonstrated beyond all reasonable doubt that the previous ruling given after 105 830 due deliberation and full hearing was erroneous go back upon it particularly on a constitutional issue
Per Subba Rao J
The object that the framers of our Con stitution had before them in declaring the fundamental rights in Part III of the Constitution and empowering the High Courts by article 226 of the Constitution to enforce them would be largely defeated if a person in a remote part of the country had to come to New Delhi to seek the protection of the Punjab High Court whenever the Union Government infringed his fundamental right
The power of the High Courts under article 226 of the Consti tution is of the widest amplitude and it can issue not merely writs but also directions and orders
The words any Government in the Article includes the Union Government which has no constitutional situs in a particular place and exercises its powers throughout India and must therefore be deemed in law to have functional existence throughout India and thus within the territories of every State
Consequently when the Union Government infringes the legal right and interest of a person residing within the territorial jurisdiction of a High Court the High Court has the power under the Article to issue a writ to that Government
If its orders are disobeyed by that Government or any of its officers even though physically outside its territories it can proceed in contempt against them under the Contempt
of Courts Act 1952
Election Commission India vs Saka Venkata Subba Rao   held inapplicable
K section Rashid and Son vs Income Tax Investigation Commission  and Ryots of Garabandho vs Zamindar of Parlakimedi LR 70 IA 129 considered
Maqbul Unnissa vs Union of India ILR 1953 2 All 289 approved
Surajmal vs State of MP AIR 958 MP 103 and Radhe shyam Makhanlal vs Unionof India AIR 1960 Bom
353 held inapplicable
In the instant case therefore the High Court had the power to issue the writ to the Union Government under article 322A of the Constitution
Per Das Gupta J
It is neither correct nor appropriate to speak of location of any Government and there is no satisfactory test for ascertaining the location of the Government of India
Since the Government functions throughout the territory of India the conclusion must be that it is within the territories under the jurisdiction of every High Court
The words any Government in article 226 clearly indicate that the High Court was intended to give relief against that Government as well
Even though the Government of India is within the territories of every High Court it will not have to face applications 831 for relief against the same order in all the High Courts in India
The words in appropriate cases in that Article properly construed indicate that there can be only one High Court thereunder that can exercise jurisdiction under the Article for every act or omission in respect of which relief is claimed
It is possible in every case to ascertain the place where the act or omission took place and that High Court alone which exercises jurisdiction over that place can have jurisdiction to grant relief under the Article
It is not correct to say that under article 226 the cause of action determines the jurisdiction
Neither that Article nor article 322A of the Constitution is based on that principle
Election Commission India vs Saka Venkata Subba Rao   approved