N: Civil Appeal No. 569 of 1961.
Appeal by special leave from the order dated September 9, 1960, of the Chief Commissioner, Pondicherry in Appeal No. 94 of 1960.
WITH Writ Petition No. 347 of 1960.
Petition 'tinder article 32 of the Constitution of India for enforcement of Fundamental Rights.
658 N. C. Chatterjee, R. K. Garg and section C. Agarwala for the Appellant.
C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and R. N. Sachthey, for respondent No. 1 (in C. A. No. 569/61).
R. Mahalinga Iyer, for respondent No. 2 (in C.A.569/61).
N. C. Chatterjee, R. K. Garg and section C. Agarwala, for the petitioner and the intervener.
C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and R. N. Sachthey, for respondent No. 1 (in W. I,.
No. 347/60).
R. Thiagarajan, for respondent No. 3 (in W. P. No. 347/60).
January 22.
The judgment of the Court was delivered by WANCHOO, J.
The appeal and the writ petition arise out of the same order of the Chief Commissioner of Pondicherry acting as the appellate authority under the Motor Vehicles Act and will be dealt with together.
The petitioner is one of fourteen persons who had applied for a stage carriage permit before the State Transport Authority, Pondicherry.
The petitioner 's application was rejected and the permit was granted to Perumal Padayatchi, one of the respondents before us.
The State Transport Authority considered various factors one of which was that Perumal Padayatchi was a native of Pondicherry and taking all the factors into account, the permit was granted to Perumal Padayatchi.
The petitioner went in appeal before the Appellate Authority, who is the Chief Commissioner of Pondicherry.
The Appellate Authority dismissed 659 the appeal and observed that even if it were conceded.
that the claim% of the petitioner were more or less equal to those of Perumal Padayatchi, the latter would be entitled to preference on the ground that he is a native of Pondicherry.
We may.
add that though the petitioner used to live in Pondicherry, he was not a native of Pondicherry.
This order rejecting the appeal was passed on September 9, 1960.
The appeal has been filed with special leave against this order. 'I he petitioner has also filed the writ petition against this order in which he raises, the same points.
The main contention urged on behalf of the petitioner is that the order of the appellate Authority shows that preference was granted to Perumal Padayatchi on the ground that he was a native of Pondicherry (i. e. he was born in Pondicherry), while the petitioner was merely a resident of Pondicherry (i. e. he was born in Pondicherry).
The petitioner contends that such grant of preference on the ground of place of birth is hit by article 15 of the Constitution as the petitioner is a citizen of India, and article 15 lays down that "the State shall not discriminate against any citizen on grounds only of religion, race, case, sex, place of birth or any of them".
This contention of the petitioner is met on behalf of the respondents in this way.
The respondents submit that at the relevant time, Pondicherry was not within the territory of India and the Constitution did not apply to it.
Therefore, the petitioner would have no right to apply to this Court for special leave under article 136 of the Constitution; nor would the petitioner have a right to proceed by way of a writ petition under article 32 against an order which was passed by the Appellate Authority in Pondicherry at a time when Pondicherry was not in the territory of India.
Reliance in this connection is placed on behalf of the respondents on the decision of this 660 Court in N. Masthan Sahib vs Chief Commissioner, Pondicherry(1) The petitioner also relies on the same decision of this Court.
It is conceded on his behalf that in view of that decision it was not open to the petitioner to apply to this Court under article 136 and therefore the appeal may not be maintainable.
But it is urged that under article 12 ,,,the State" for the purpose of part III of the Constitution is defined to include " 'the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India".
It is therefore contended that even though Pondicherry was not a part of India when the order under challenge was passed, the Appellate Authority which passed the order was a "local or other authority under the control of the Government of India" and therefore was amenable to a writ under article 32 of the Constitution.
Further it is urged that whatever may have been the position when Masthan Sahib 's case (1), wag decided, Pondicherry is now within the territory of India since August 1962 and therefore this Court can now issue a writ to the Appellate Authority if the order under challenge, violates article 15 of the Constitution.
The respondents however contend that the fact that Pondicherry is now within the territory of India makes no difference in the application of the decision in Masthan Sahib 's case (1).
It is submitted that the reasons which led the majority in that case to refuse to issue a writ clearly imply (even if there is no actual decision in express terms on the question now raised) that a judicial or quasi judicial authority cannot be said to be an authority "under the control of the Government of India" within the meaning of article 12, and therefore the.
Appellate Authority which was a quasi ,judicial authority was not under the (1) [1962] Supp. 1 S.C.R. 981.
661 control of the Government of India and could not be amenable to a writ under article 32 at the time when the order under challenge was passed.
Further as the Constitution is not retrospective in operation the fact that Pondicherry since August 1962 is part of the territory of India would not give this Court jurisdiction to issue a writ now when it could not issue a writ to the Appellate Authority in September, 1960, even reading article 32 along with article 12 of the Constitution.
Before we come to consider the questions thus raised in the writ petition, we may state that so far as the appeal is concerned, it is concluded by the decision in Masthan Sahib 's case (1).
Article 136 gives power to this Court to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
Admittedly, Pondicherry was not within the territory of India when the order was passed and therefore article 136 would not apply to such an order.
We have already indicated that this position is conceded on behalf of the petitioner.
So far therefore as the appeal is concerned it must be dismissed on the authority of Masthan Sahib 's case (1), though in the circumstances we shall pass no order as to costs.
Turning now to the writ petition, the main question that falls for consideration is the effect of article 12 and whether on a proper interpretation of that Article, the Appellate Authority could in this case be said to be " 'a local or other authority under the control of the Government of India".
It is submitted on behalf of the respondents that this matter is also concluded by the decision of the majority in Masthan Sahib 's case (1), and that the effect of that decision is that a judicial or a quasijudicial authority would not be an authority "under the control of the Government of India". ' On the (1) [1962] Supp. 1 S.C.R. 981.
662 other hand, the petitioner contends that there was no such decision in that case as will appear from the concluding portion of the judgment and therefore the question is open for consideration before us.
As both parties rely on that decision we may quote the relevant part thereof.
Before we do so we may mention that the decision in that case was in two parts, the first part being delivered on April 28, 1961 and the final part on December 8, 1961, though the report contains only the final part.
Relevant part of that decision which appears in the first part delivered on April 28, 1961, is as below : "Learned counsel pointed out that for the purpose of the exercise of this Court 's power under article 32 of the Constitution for the enforcement of the fundamental rights its jurisdiction was not limited to the authorities functioning within the territory of India but that it extended also to the giving of directions and the issuing of orders to authorities functioning even outside the territory of India provided that such authorities were subject to the control of the Government of India.
This submission.appears to us well founded and the power of this Court under article 32 of the Constitution is not circumscribed by any territorial limitations it extends not merely over every authority within the territory of India but also those functioning outside, provided that such authorities are under the control of the Government of India".
Then after considering articles 142 and 144 of the Constitution and pointing out that in view of the limitations imposed by article 142 on the territory within which alone the orders or directions of this Court could be directly enforced, a question was posted whether a writ in the nature of certiorari or 663 other appropriate order or direction to quash a quasi judicial order passed by an authority outside the territory of India, though such authority is under the control of the Government of India could issue.
The majority judgment observed as follows in answer to the question thus posed : "If the order of the authority under the control of the Government of India but functioning outside the territory of India was of an executive or administrative nature, relief could be afforded to a petitioner under article 32 by passing suitable orders against the Government of India directing them to give effect to the decision of this Court by the exercise of their powers of control over the authority outside the territory of India.
Such an order could be enforceable by virtue of article 144, as also article 142.
But in a case where the order of the outside authority is of a quasi judicial nature, as in the case before us, we consider that resort to such a procedure is not possible and that if the orders or directions of this Court could Dot be directly enforced against the authority in Pondicherry, the order would be ineffective and that the Court will not stultify itself by passing such an order." In the final order, however, at p. 1009 of the Report, the majority observed as follows: "The writ petitions must also fail and be dismissed for the reason that having regard to the nature of the relief sought and the authority against whose orders relief is claimed they too must fail.
They are also dismissed.
We would add that these dismissals would not preclude the petitioners from approaching this Court, if so desired in the event of Pondicherry becoming part of the territory of India".
664 it is contended on behalf of the petitioner that the majority decision in that case seems to imply that the Appellate Authority was under the control of the Government of India as otherwise it would not have been necessary to put the two questions which were out to the Government of India by the first part of the decision.
Further it is contended that the observations in the final part of the judgment that the petitioners in that case were not precluded from approaching this Court, if so desired, in the event of Pondicherry becoming part of the territory of India, also show that it was not held in that decision that judicial or quasi judicial authorities could not be under the control of the Government of India.
On the other hand, it is contended on behalf of the respondents that judicial or quasi judicial authorities were not under the control of the Government of India, for if they were a writ would have been issued in that case in the same way as in the case of an executive or administrative authority, i.e. a writ could issue to the Government of India "directing them to give effect to the decision of this Court by the exercise of their powers of control over the authority outside the territory of India".
We have carefully considered the observations in the majority decision in this connection and it must be held that that decision is not a direct authority on the question that is now posed before us., for the point was not then specifically raised; and expressly decided, though as we will later point out, the implication of the said decision is against the contention raised by the petitioner.
We have therefore to examine the contentions of either party as to the exact scope and effect of the words " 'all local or other authorities within the territory of India or under the control of the Government of India", as if the question is res integra.
The first contention on behalf of the petitioner is that the words " 'under the control of the Government 665 of India" in article 12 do not qualify the word "authorities" therein but qualify the word "territory".
The petitioner would therefore read the relevant words of article 12 like this : "All local or other authorities within the territory of India or all local or other authorities within the territory under the control of the Government of India".
Thus, according to the petitioner, all that is required is that the territory even if it is not the territory of India, should be under the control of the Government of India, and if the territory is under the control of the Government of India all, local or other authorities in such territory would be included in the words "the State".
On the other hand, the contention on behalf of the respondents is that the words "under the control of the Government of India" qualify the word "authorities" and not the word "territory" in the relevant part of article 12 and that that part on its true interpretation would read thus : "all local or other authorities within the territory of India or all local or other authorities under the control of the Government of India".
Having given our anxious consideration to this matter we are of opinion that the interpretation put on the relevant words on behalf of the respondents is the right one, both gramatically and otherwise.
article 12 gives an inclusive definition of the words "the State" and within these words of that Article are included, (i) the Government and Parlia ment of India, (ii) the Government and the legislature of each of the States, and (iii) all local or other authorities.
These are the only authorities which are included in the words "the State" in article 12 for the purpose of Part III.
Then follow the words which qualify the words "all local or other authorities".
These local or other authorities which are included within the words " 'the State" of article 12 are of two kinds, namely, (i) those within the territory of India, and (ii) those under the control of the 666 Government, of India.
There are thus two qualifying clauses to "all local or other authorities.
" These clauses are : (i)within the territory of India and (ii) under the control of the Government of India.
It would in our opinion be gramatically wrong to read the words "under the control of the Government of India" as qualifying the word territory".
From the scheme of ' article 12 it is clear that three classes of authorities are meant to be included in the words ',the State", there; and the third class is of two kinds and the qualifying words which follow "all local or other authorities" define the two types of such local or other authorities as already indicated above.
Further all local or other authorities within the territory of India include all authorities within the territory of India whether under the control of the Government of India or the Governments of various States and even autonomous authorities which may not be under the control of the Government at all.
In contradistinction to this the second qualifying clause refers only to such authorities as are under the control of the Government of India and so the second qualifying clause must govern the word "authorities". ' Therefore, the interpretation put forward on behalf of the respondents seems to us to be correct both gramatically and otherwise.
"All local or other authorities" would thus be of two kinds, namely, (i) those within the territory of India, and (ii) those under the control of the Government of India.
In the latter case there is no qualification that they should be within the territory of India.
It is enough if they are under the control of the Government of India wherever they may be.
We are therefore of opinion that no writ could issue to the appellate authority at the time when the order under challenge was passed, unless it could be called "other authority under the control of the Government of India Further,, there can be no doubt that if no writ could issue to the Appellate Authority at the time the order was passed, no writ could issue now after 667 Pondicherry has become part of the territory of India, for that would be giving retrospective operation to the Constitution for this purpose which obviously cannot be done: (see Janardan Reddy vs the State(1)).
The next question is whether a judicial or quasijudicial authority outside the territory of India but within the territory under the administration of the Government of India can be said to be under the control of the Government of India.
For this purpose we have to find out the meaning of the words "under the control of the Government of India" as used in article 12.
It is submitted on behalf of the petitioner that if an authority is appointed by the Government of India, is paid by the Government of India and is liable to disciplinary action by the Government of India, it would be an authority "under the control of the Government of India".
It is urged that as the Chief Commissioner, who is the appellate Authority, was appointed by the Government of India, was paid by the Government of India and was under the disciplinary control of the Government of India, he would be an authority under the control of the Government of India and this court would therefore have been entitled to issue a writ against him even when the order was passed and therefore all the more so,, when Pondicherry is now within the territory of India.
The contention however that this Court could issue a writ under article 32 against the Appellate Authority even at the time when the order was passed, is clearly negatived by the majority decision in Masthan Sahib 's case (2), for if that could be done, writ would have been issued in that case.
The reason why writ was not issued in Masthan Sahib 's case (2), was that the quasi judicial authority was outside the territory of India and this Court held that if the authority were of an executive or administrative nature, a writ could have been issued to the Government of India ""directing them to give effect to the decision of this Court by the exercise of their powers (1) ; (2) [1962] Supp. 1 S.C.R. 981. 668 of control over the authority outside the territory of India".
But as the authority in that case 'just like the authority in the present case was a quasi judicial authority resort to such a procedure was not possible and if the orders or directions could not be directly enforced against the authority in Pondicherry, the order would be ineffective.
This clearly implies that the quasi judicial authority was not under the control of the Government of India like an executive or administrative authority and therefore it was not possible for this Court to issue a direction to the Government of India to direct a quasi judicial authority to give effect to the decision of this Court "by the exercise of their powers of control over the authority outside the territory of India".
It follows from these observations in the majority decision in that case that the control envisaged by the words "under the control of the Government of India" in article 12 is not the control which arises out of mere appointment, payment and the right to take disciplinary action; the control envisaged under article 12 is a control of the functions of the authorities concerned, and the right of the Government of India by virtue of that control to give directions to the authority to function in a particular manner with respect to such functions.
Now if the authorities were administrative or executive the control of the Government of India would not only be by virtue of appointment, payment and disciplinary action, but it would also extend to directing the authority to carry out its functions in a particular manner and a purely executive or administrative authority can always be directed by the Government of India under which it is functioning to act in a particular manner with respect to its functions.
This, however,cannot be said of a quasi judicial or judicial authority even though the Government of India may have appointed the authority and may be paying it and may have the right to take disciplinary action against it in certain eventualities.
It was not open 669 to the Government of India to control the functions of a quasi judicial or judicial authority and direct it to decide a particular matter before it in a particular way.
It seems to us therefore that the control envisaged under article 12 is control of the functions of the authorities and it is only when the Government of India can control the function of an authority that it can be said that the authority is under the control of the Government of India.
Such control is possible in the case of a purely executive or administrative authority; it is impossible in the case of a quasi judicial or judicial authority, for in the very nature of things, where rule of ' law prevails, it is not open to the Government, be it the Government of India or the Government of a State, to direct a quasi judicial or judicial authority to decide a particular ' matter before it in a particular manner.
Therefore, this being the nature of the control which the Government of India must exercise in order that an authority functioning outside the territory of India may be said to be an authority under the control of the Government of India within the meaning of article 12, a quasi judicial or judicial authority cannot be said to be an authority under the control of the Government of India within this meaning.
We are therefore of opinion that the Appellate authority being quasi judicial could not be directed by the Government of India to decide a particular matter before it in a particular manner and therefore it cannot be said that it is an authority under the control of the Government of India.
As we have already indicated, this follows from the reasoning of the majority in Masthan Sahib 's Case (1), though it was not decided specifically as such in that case.
We are therefore of opinion that judicial or quasi .judicial authorities functioning in territories administered by the Government of India but outside the territory of India cannot be said to be authorities under the control of the Government of India within the meaning of article 12, and therefore article 12 would not apply to 670 such authorities functioning outside the territory of India.
Consequently it would not be open to this Court to issue a writ under article 32 read with article 12 against a quasi .judicial authority outside the territory of India even though that authority might have been appointed by the Government of India, might be paid by the Government of India or the Government of India might have the power of disciplinary action against it.
The Appellate Authority being a quasijudicial authority would thus not be under the control of the Government of India within the meaning of article 12.
Therefore it would not have been open to this Court to issue a writ against the order under challenge when it was passed.
In consequence it is not open to this Court now that Pondicherry has become part of India to issue a writ to the Appellate Authority with respect to an order passed by it before Pondicherry became part of India, as the Constitution for this purpose is not retrospective.
The matter can be looked at in another way.
article 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Therefore it is only when the State as defined in article 12 (for there is nothing in the context of article 15 to require otherwise) discriminates, that a citizen can complain of the breach of article 15 and ask for relief from this Court under article 32.
We have however held that the Chief Commissioner being a quasi judicial authority was not under the control of the Government of India within the meaning of article 12.
Therefore, he could not be the State within that Article.
If so, it follows that the discrimination (assuming there was any) was by an authority which was not the State.
The protection of article 1.5 is against discrimination by "the State." The petitioner therefore would not be entitled to any protection under article 15 against the Chief Commissioner at the time the impugned order 671 was made.
That is another reason why the present petition must fail.
We therefore dismiss the appeal and pass no order as to costs in respect thereof.
We dismiss the writ petition with costs.
Appeal dismissed.
Writ petition dismissed.


Summary:
The petitioner, a resident of Pondicherry, was an applicant for a stage carriage permit,.
before the State Transport authority pondicherry, alongwith 14 other persons.
The Permit was granted to one Perumal Padayatchi taking into account the fact that he was a native of Pondicherry along with other facts.
The petitioner, whose application for the permit was rejected, went in appeal to the Appellate Authority who dismissed the appeal .
The petitioner filed a writ petition under article 32 in this Court and contended that preference on the ground of place of birth is violative of article 15 of the Constitution.
On the dates of the orders sought to be impugned, Pondicherry was not yet part of the territory of India, but when the petition was heard it had become part of the territory of India.
It was contended on behalf of the respondent that in view of the observations in the decision in N. Masthan Sahib vs Chief Commissioner, [1962] Supp.
1 section C. R. 981, the writ petition was not maintainable.
Held, that in article 12 the words "under the control of the Government of India" qualify the word "authorities" and not the word "territory" and article 12 gives an iaclusive definition of the word "State".
Held, further, that if no writ could be issued at the time .
when the order was passed for the reason that Pondicherry was not part of India at that time, no such writ could be issued in respect of past acts after Pondicherry had become part of India 657 as that would be giving retrospective operation to the Constitution.
Janardan Reddy vs The State, ; referred to.
Held, also, that judicial or quasi judicial authorities out side the territory of India but under the administration of the Government of India cannot be said to be 'under the control of the Government of India ' as the expression "control" connotes power to issue directions regarding how a thing may be done by a superior authority to an inferior authority, and in the case of a quasi judicial authority no such directions or orders could be issued.
It is only in the case of executive action that a superior authority may direct that a particular thing may be done in a particular way by the subordinate authority.
In the very nature of things where rule of law prevails it is not open to a Government, be it the Government of India or the Government of a State, to direct a quasi judicial or judicial authority to decide Any particular matters before it in a particular manner.
N. Masthan Sahib vs Chief Commissioner, [1962] Supp.
1 section C. R. 981, referred to.
Held, also, that the Chief Commissioner who is the Appellate Authority in the case, fell outside the definition of 'State ', he being a quasi judicial authority not under the control of the Government of India and, therefore, article 15 of the Constitution did not apply to him and no protection under article 15 was available against the Chief Commissioner at the time the impugned order was made.