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PETITIONER: LT. COL.  KHAJOOR SINGH

       Vs.

RESPONDENT: THE UNION OF INDIA & ANOTHER.

DATE OF JUDGMENT: 05/12/1960

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

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

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

HEADNOTE: The  High  Court  of.  Jammu and  Kashmir,  relying  on  the decisions  of  this Court in Election Commission,  India  v. Saka Venkata Subba Rao, [1953] S.C.R. 1144 and K. S.  Rashid and  Son  v. The Income Tax Investigation  Commission  etc., [1954] S.C.R. 738, dismissed an application for a writ  made by  the appellant against the Union of India and Anr.  under Art.  32(2A),  the relevant provisions of which are  in  the matter  of enforcement of fundamental rights the same as  in Art.  226 of the Constitution, on the preliminary  objection that  the said application was not maintainable against  the Union   of   India  as  it  was  outside   the   territorial jurisdiction  of that Court.  The appellant’s case was  that he was holding the substantive rank of Lieut.  Col. in Jammu and  Kashmir and had the right to continue in service  until he  attained  the age of 53 on November 20,  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 Art. 16(1) 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 Art. 226  of  the Constitution,   properly  construed,  depends  not  on   the residence  or location of the person affected by  the  order but  of  the person or authority passing the order  and  the

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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  Art. 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 v. Saka Venkata Subba Rao, [1953] S.C.R.  II44  and  K. S. Rashid and Son  v.  The  Income-tax Investigation Commission etc., [1954] S.C.R. 738, approved. Maqbulunnissa  v. Union of India, I.L.R. (1953) 2 All.  289, overruled. The  Lloyds  Bank Limited v. The Lloyds  Bank  Indian  Staff Association  (Calcutta  Branches), I.L.R. [1954] 2  Cal.  1, referred to. Proceedings under Art. 226 are not suits covered by Art. 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 v. Zamindar of Parlakimedi, (1943)  L.R. 70 I.A. 129, held inapplicable. The  resulting  inconvenience of such an  interpretation  of Art. 226 to persons residing far &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 Art. 226 of the Constitution to enforce  them would  be largely defeated if a person in a remote  part  of the country had to come to New Delhi to seek the  protection of  the  Punjab  High Court whenever  the  Union  Government infringed his fundamental right. The  power of the High Courts under Art. 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

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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 v. Saka Venkata Subba Rao, [1953] S.C.R. 1144, held inapplicable. K....S.   Rashid  and  Son  v.  Income   Tax   Investigation Commission,  [1954]  S.C.R. 738 and Ryots of  Garabandho  v. Zamindar of Parlakimedi, L.R. 70 I.A. 129, considered. Maqbul-Unnissa v. Union of India, I.L.R. (1953) 2 All. 289, approved. Surajmal  v. State of M.P., A.I.R. 958 M.P. 103  and  Radhe- shyam  Makhanlal  v. Union.of India, A.I.R. 1960  Bom.  353, held inapplicable. In the instant case, therefore, the High Court had the power to issue the writ to the Union Government under Art.  32(2A) of the Constitution. Per  Das Gupta, J.-It is neither correct nor appropriate  to speak  of  location  of  any  Government  and  there  is  no satisfactory  test  for  ascertaining the  location  of  the Government   of  India.   Since  the  Government   functions throughout  the territory of India, the conclusion  must  be that it is within the territories under the jurisdiction  of every  High Court.  The words "any Government" in  Art.  226 clearly  indicate that the High Court was intended  to  give relief 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 Art. 226 the  cause  of action  determines the jurisdiction.  Neither  that  Article nor  Art.  32(2A)  of  the Constitution  is  based  on  that principle. Election Commission, India v. Saka Venkata Subba Rao, [1953] S.C.R. 1144, approved.

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

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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  Art.  32(2A)   of   the Constitution  for  issue of. a writ,  directions  or.  order against the Union of India, through the Secretary,  Ministry of  Defence,,  New Delhi, 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 Art.  16(1)  of  the Constitution. The  petition  was  opposed on  behalf  of  the  respondents aforesaid on a number of preliminary grounds of which it  is only  necessary  to  mention the  first,  namely,  that  the authority  against whom the writ is sought, that is to  say, respondent  No. 1, being outside the territorial  limits  of the  jurisdiction of the Jammu and Kashmir High  Court,  the same  was not maintainable.  This preliminary objection  was heard by  a Division Bench, (Janki Nath Wazir, C. J. and  M. A.  Shahmiri,  J.)  Jammu and Kashmir  High  Court.  By  its judgment. dated December 7, 1954, the High Court upheld  the preliminary  objection.   The High Court, relying  upon  the decisions  of  this Court in Election Commission,  India  v. Saka  Venkata Subba Rao (1) and K. S. Rashid and Son v.  The Income-tax  Investigation Commission etc. (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 Art.  132 of the Constitution; hence this appeal. The matter was first heard by a Bench of five judges. in the course  of hearing it became clear to us that the  appellant not only sought to distinguish (1) [1953] S.C.R. 1144. (2) [1954] S.C.R. 738. 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

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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  Art. 226  or  of  the Jammu and’ Kashmir High  Court  under  Art. 32(2A) of the Constitution. that those provisions, on a true construction,  would not stand in the way of the  appellant, inasmuch as the Government of India has no location and  its authority  is present throughout the Union  territory;  that the correct test is whether or not the cause of action arose within   the   territorial  limits  of  the   High   Court’s jurisdiction;  that the High Court was in error  in  holding that the term "authority" included a Government. In  answer to these contentions on behalf of the  appellant, the  learned Solicitor-General contended that, on  a  proper construction of the relevant provisions of the Constitution, it  is  clear that Sastri C. J.’s observations  relating  to "authority"  in  the case of Election Commission,  India  v. Saka  Venkata  Subba  Rao (1) applied with  equal  force  to Government,   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)  [1953] S.C.R. 1144. 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 v. Saka Venkata Subba Rao (1). In that case a writ was applied for in the Madras High Court for restraining the Election Commission from, enquiring into the  alleged disqualification of the respondent.   A  single Judge  of the High Court- of Judicature of Madras  issued  a writ  of prohibition restraining the Election Commission,  a statutory  authority constituted by the President of  India, with  its office permanently located at New Delhi, when  the matter  was  heard by the learned single Judge of  the  High Court.   In the High Court the Election Commission  demurred to  the jurisdiction of the Court to issue any writ  against it  on  the ground that the Commission was  not  within  the territory  in  relation to which the  High  Court  exercised jurisdiction,  apart  from other  objections.   The  learned Judge of the High Court overruled the preliminary  objection and   decided  the  case  on  merits,  and  issued  a   writ prohibiting   the  Commission  from’  proceeding  with   the enquiry.   The learned Judge granted the  certificate  under Art.  132 that the case involved a substantial  question  of law  as  to  the interpretation of  the  Constitution.   The

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Election  Commission accordingly came up in appeal  to  this Court  and  challenged the jurisdiction of the  Madras  High Court to issue the writ it had purported to do.  This  Court overruled  the contention on behalf of the respondent  which was (1)  [1953] S.C.R. 1144. 835 based   on  the  decision  of  the  Privy  Council  in   the Parlakimedi case (1) that the jurisdiction of the High Court to issue a writ is analogous to the jurisdiction of a  court to  grant  a  decree or order against  persons  outside  the limits of its local jurisdiction, provided that the cause of action arose within those limits.  This Court overruled that contention in these words:- "The  rule  that cause of action  attracts  jurisdiction  in suits  is based on statutory enactment and cannot  apply  to writs  issuable under Art. 226 which makes no  reference  to any  cause of action or where it arises but insists  on  the presence of the person or authority ’within the territories’ in relation to which the High Court exercises jurisdiction". The  Constitution  Bench in that case  considered  that  the language  of Art. 226 of the Constitution  was  "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.  S.  Rashid  and  Son  v.  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 Arts. 226 and 227 of the  Constitution  praying for  quashing  proceedings started  against  the  appellants under the Taxation on Income (Investigation Commission.) Act (XXX of 1947).  It was prayed in the High Court that a  writ of prohibition might issue against the Income-Tax (1) (1943) L.R. 70 I.A. 129. (2) [1954] S.C.R. 738. 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 Art. 226 of  the  Constitution,  simply because  the  Commission  was located  in  Delhi.  Reliance was placed on  behalf  of  the Commission  on  the  decision of the Privy  Council  in  the 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

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given by it in its previous judgment in the case of Election Commission,  India v. 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  Art. 226  of the Constitution.  The appeal was dismissed by  this Court on other grounds, not material to this case. Learned counsel for the appellant has contended that the two decisions   of   this   Court   referred   to   above    are distinguishable from the facts of the present case, inasmuch as in those cases the Election Commission and the Income-tax Investigation  ’Commission were statutory bodies, which  had their  location  in Delhi, and, therefore, this  Court  held that  the Punjab High Court was the High Court within  whose jurisdiction those bodies functioned and had their  location and  were,  therefore,  amenable to  its  jurisdiction.   He further  contended  that  the  Union  Government  functioned throughout the territory of India and could (1) (1943) L.R. 70 I.A. 129. (2) [1953] S.C.R. 1144. 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 v. 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 Art. 226(1) of the Constitution clearly indi- cated  that  the Allahabad High Court  had  jurisdiction  to entertain the petition under Art. 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 v. The  Lloyds Bank Indian Staff Association (Calcutta Branches) (2)  which was  unreported  till then.  In that case, Harries,  C.  J., speaking for the Court, had held that though Art. 226 of the Constitution  had  gone  beyond  the  English  practice   by providing  that  writs in the nature  of  prerogative  writs could issue even against a Government, that Government  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 Art. 226 could not issue against that Government by the High Court of Calcutta.  That (1) I.L. R. (1953) 2 All. 289. (2) I.L.R.  [1954] 2 Cal. 1. 838 decision of the Calcutta High Court was distinguished by the Allahabad High Court on the ground that "the effects of  the

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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  Art.  226.  Before, however, we deal with  these  two main  questions,  we  would like to clear  the  ground  with respect  to two subsidiary matters which have been urged  on behalf of the appellant. The first argument is that the word "authority" used in Art. 226  cannot  and does not include Government.   We  are  not impressed  by  this  argument.   In  interpreting  the  word "authority"  we must have regard to the  clause  immediately following  it.   Art.  226 provides for "the  issue  to  any person  or  authority  including in  appropriate  cases  any Government" within those territories.  It is clear that  the clause "including in appropriate cases any Government"  goes with  the  preceding word "authority", and on  a  plain  and reasonable construction it means that the word "  authority" in the context may include any Government in an  appropriate case.   The suggestion that the said clause is  intended  to confer  discretion  on  the High Courts  in  the  matter  of issuing  a writ or direction on any Government seems  to  us clearly unsustainable. 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 Art. 226 power is conferred on the High Court to issue to any  person or authority or in a. given case to any Government, writs or orders there specified for enforcement of any of the  rights conferred  by  Part III and for any other  purpose.   Having thus dealt with the two subsidiary points raised before  us, we  may  now proceed to consider the  two  main  contentions which arise for our decision in the present appeal. This  brings us to the first question, namely,  whether  the Government of India as such can be said to be located at one place,  namely,  New  Delhi.   The  main  argument  in  this connection is that the 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

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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 Art.  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 Art. 226 are these- "Every High Court shall have power to issue to any person or authority within those territories...". So far as a  natural person  is concerned, there can be no doubt that he  can  be within those territories only if he resides therein-  either permanently  or  temporarily.   So far as  an  authority  is concerned,  there  can  be no doubt that if  its  office  is located  therein  it must be within the territory.   But  do these  words  mean with respect to an  authority  that  even though its office is not located within those territories it will  be  within  those territories because  its  order  may affect persons living in those territories?  Now it is clear that  the jurisdiction conferred on the High Court  by  Art. 226  does not depend upon the residence or location  of  the person  applying  to it for relief; it depends only  on  the person  or  authority against whom a writ  is  sought  being within those territories.  It seems to us therefore that  it is  not  permissible to read in Art. 226  the  residence  or location of the person affected by the order passed in order to  determine  the  jurisdiction of the  High  Court.   That jurisdiction depends on the person or authority passing  the order  being within those territories and the residence:  or location of the person affected can have no relevance on the question of the High Court’s jurisdiction.  Thus if a person residing or located in Bombay, for example, is aggrieved  by an  order passed by an authority located, say, in  Calcutta, the  forum in which he has to seek relief is not the  Bombay High Court though the order may affect him in Bombay but the Calcutta High Court where the authority passing the order is located.   It would, therefore, in our opinion be  wrong  to introduce  in Art.. 226 the concept of the place  where  the order 841 passed has effect in order to determine the jurisdiction  of the  High Court which can give relief under Art.  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  Art.  226 contemplates that all the six High Courts have  jurisdiction in  the matter of giving relief under it?  The  answer  must obviously be ’No’, if one is to avoid confusion and conflict of jurisdiction.  As we read the relevant words of Art.  226 (quoted  above) there can be no doubt that the  jurisdiction

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conferred by that Article on a High Court is with respect to the location or residence of the person or authority passing the  order and there can be no question of  introducing  the concept  of the place where the order is to have  effect  in order  to determine which High Court can give  relief  under it.   It is true that this Court will give such  meaning  to the words used in the Constitution as would help towards its working  smoothly.  If we were to introduce in Art. 226  the concept  of the place where the order is to have  effect  we would  not be advancing the purposes for which Art. 226  has been  enacted.   On the other hand, we  would  be  producing conflict  of  jurisdiction between various  High  Courts  as already  shown by the illustration given above.   Therefore, the  effect of an order by whomsoever it is passed can  have no  relevance  in determining the jurisdiction of  the  High Court   which  can  take  action  under  Art.   226.    Now, functioning  of  a Government is really nothing  other  than giving  effect  to the orders passed by  it.   Therefore  it would  not be right to introduce in Art. 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 Art.  226.   There  can, therefore, be no  escape  from  the conclusion  that  these words in Art. 226 refer not  to  the place  where the Government may be functioning but  only  to the  place where the person or authority is 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 Art. 226 requires is residence or location  as  a fact and if therefore there is a  seat  from which  the Government functions as a fact even  though  that seat  is  not mentioned in the Constitution the  High  Court within  whose territories 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 v. Saka Venkata Subba  Rao  (1) and K.S. Rashid and Son  v.  The  Income-tax Investigation   Commission  (2)  that  there   is   two-fold limitation  on  the power of the High Court to  issue  writs etc.  under  Art.  226,  namely, (i)  the  power  is  to  be exercised  ’throughout the territories in relation to  which it exercises jurisdiction’, that is to say, the writs issued by  the Court cannot run beyond the territories  subject  to its  jurisdiction, 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) [1953] S.C.R. 1144. (2) [1954] S.C.R. 738.

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843 it  is possible to introduce the concept of cause of  action in Art. 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 v. 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 Art. 226  was  also considered  in Saka Venkata Subba Rao’s case ( 2 )  and  was repelled in these words:- "The  rule  that cause of action  attracts  jurisdiction  in suits  is based on statutory enactment and cannot  apply  to writs  issuable under Art. 226 which makes no  reference  to any  cause of action or where it arises but insists  on  the presence of the person or authority  within the territories’ in relation to which the High Court exercises jurisdiction." Article 226 as it stands does not refer anywhere to (1) (1943) L.R. 70 I.A. 129. (2) [1953] S.C.R. 1144. 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 Art. 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  Art. 226  and  doing away with an  express  limitation  contained therein  if  the  concept  of cause of  action  were  to  be introduced  in it.  Nor do we think that it is right to  say that because Art. 300 specifically provides for suits by and against the Government of India, the proceedings under  Art. 226 are also covered by Art. 300.  It seems to us that  Art. 300 which is on the same line as s. L76 of the Government of

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India  Act, 1935, dealt with suits as such  and  proceedings analogous  to or consequent upon suits and has no  reference to  the extraordinary remedies provided by Art. 226  of  the Constitution.  The concept of cause of action cannot in  our opinion be introduced in Art. 226, for by doing so we  shall be  doing away with the express provision contained  therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within  the territories over which the High Court 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 Art. 226.  But the argument of  inconvenience, in our opinion,. cannot 845 affect  the plain language of Art. 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 Art.  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  Art. 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 Art.  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 Art. 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

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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 32(2A) 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 Art. 32 of the Constitution was  deleted, and  a  new  clause (2A) was inserted after  cl.  (2).   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 Art.  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  Art.  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 Art. 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 Art. 32(2A) nor Art. 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.

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Before  I attempt to construe the provisions of el. (2A)  of Art. 32, I think it would be convenient to trace briefly the history  of Art. 226, for it throws a flood of light on  the legislative intention expressed in 848 Art.  32(2A).   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 Art. 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  Art. 226 vis-a-vis the  reach  of  the  High Courts’  power has been considered in two decisions of  this Court,  namely, Election Commission, India v.  Saka  Venkata Rao  (1)  and  K.  S.  Rashid  and  Son  v.  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 Art. 32(2A) free from the curbs imposed by the earlier decisions. The  core  of the Article is discernible  in  the  following

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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)  [1953] S.C.R. 1144. (2) [1954] S.C.R. 738. 850 This  question, in a different context, has been  considered by  the Judicial Committee of the Privy Council in Ryots  of Garabandho v. Zemindar of Parlaki medi (1).  There the Board of  Revenue situated in the State of Madras under s. 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) L.R. 70 I.A. 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

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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 Art.  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 Arts. 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

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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  Art.  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 Art.  77,  all executive action of the Government  of  India shall be expressed to be taken in the name of the President;

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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 Art.  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 s. 79 Section 79 of the 856 Civil  Procedure Code is in terms analogous to Art.  300  of the Constitution, and under that section,

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"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 ss. 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

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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 Contempt of Courts Act, 1952.  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 s.  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  v.  Saka  Venkata  Rao(1).   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 Art. 226 of  the  Constitution for a writ  restraining  the  Election Commission (1)  [1953] S.C.R. 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 Art.  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

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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. S.  Rashid & Son v. 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  Art. 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) [1954] S.C.R. 738. 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 v. Union of India(1).  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 Art.  226,  the learned Judge observed at p. 292 thus:

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(1) I.L.R. [1953] 2 AR. 289. (2) [1953] S.C.R. 1144. 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  Art. 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  v.  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’s(1)  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 Art. 226 of the Constitution, I do not think  why the High Court in exercise (1) [1953] S.C.R. 1144.       (2) A.I.R. 1958 M.P. 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 v. 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 S. 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.

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The  foregoing discussion may be summed up in the  following propositions: (1) The power of the High Court under Art. 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) A.I.R. 1960 Bom. 353. (2) [1953] S.C.R. 1144. 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  Contempt  of Courts  Act,  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 Art. 32(2A)  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

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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  32(2A)  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  Art. 32(2A) of the Constitution. Article 32(2A) 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 Art. 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 Art. 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

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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 Art. 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  Art. 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.   Art. 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

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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  Art.  77,  the  President  allocated  the business of  the.  Government of India 868 among  the Ministers while under Art. 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

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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 v. Saka Venkata Subba Rao  (1)  this Court held that before a writ under Art. 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. S. Rashid and  Son v.  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 (1)[1953] S.C.R. 1144. (2) [1954] S.C.R. 738. 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

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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 Art.  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 Art. 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  Art. 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 v. Zemindar of Parlakimedi (1) that all that is necessary to give, jurisdiction to a High Court to act under Art. 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) L.R. 70 I.A. 129. 872 under  Art. 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 Art.  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 Art. 226 which makes no  reference  to any  cause of action or where it arises but insists  on  the

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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 Art. 226 or Art. 32(2A) 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) [1953] S.C.R. 1144.     (1) (1943) L.R. 70 I.A. 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 Art. 226 or Art. 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 Art. 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. 874