Case Note & Summary
The appellant, Lt. Col. Khajoor Singh, holding a substantive rank of Lieutenant Colonel in the Jammu and Kashmir State Forces which were amalgamated with the Defence Forces of the Union with effect from September 1, 1949, was prematurely retired by a letter dated July 31, 1954 issued by the Government of India. He filed a writ petition under Article 32(2A) of the Constitution in the High Court of Jammu and Kashmir against the Union of India and the State of Jammu and Kashmir, contending that he had the right to continue in service until the age of 53 on November 20, 1961 and that his retirement without any allegation or charge contravened Article 16(1) of the Constitution. The High Court dismissed the petition on a preliminary objection that it had no territorial jurisdiction over the Union of India, relying on Election Commission, India v. Saka Venkata Subba Rao and K. S. Rashid and Son v. The Income Tax Investigation Commission. On appeal, the Supreme Court examined whether the High Court could issue a writ against the Union of India whose seat of government is in New Delhi, outside the territorial jurisdiction of that High Court. The majority, speaking through Sinha, C.J., held that the jurisdiction of a High Court under Article 226 depends on the location of the person or authority passing the order, not on the residence or location of the person affected or the place where the order has effect. The expression 'any person or authority' includes a Government, and a Government is within the territories if its seat from which in fact it functions is there. The Court held that proceedings under Article 226 are not suits and Article 300 does not apply; the concept of cause of action cannot confer jurisdiction. It declined to overrule its previous decisions and dismissed the appeal. Subba Rao, J. and Das Gupta, J. delivered dissenting judgments, holding that the Union Government has functional existence throughout India and that the High Court within whose jurisdiction the petitioner resides and the cause of action arises can issue a writ against the Union Government.
Headnote
A) Constitutional Law - Writ Jurisdiction of High Courts - Territorial Jurisdiction - Constitution of India, Article 226 - High Court jurisdiction under Article 226 depends on location of the person or authority against whom writ is sought, not on residence of petitioner or place where order has effect - Appellant, a resident of Jammu and Kashmir, challenged premature retirement order issued by Government of India; Jammu and Kashmir High Court dismissed petition for lack of jurisdiction because Union of India located in New Delhi outside its territory; Supreme Court affirmed that Government of India is located at its seat in New Delhi and therefore not within territories of Jammu and Kashmir High Court (Paras Not mentioned). Held: jurisdiction not attracted.
Issue of Consideration
Whether the High Court of Jammu and Kashmir had territorial jurisdiction under Article 32(2A) of the Constitution (corresponding to Article 226) to issue a writ against the Union of India, whose seat of government is in New Delhi, in respect of an order of premature retirement passed by the Government of India.
Final Decision
Appeal dismissed. The majority (Sinha, C.J., Kapur, Gajendragadkar, Wanchoo and Shah, JJ.) held that the High Court of Jammu and Kashmir lacked territorial jurisdiction to issue a writ against the Union of India because the Government of India is located outside that State, and affirmed the High Court's dismissal. Subba Rao and Das Gupta, JJ. dissented, holding that the High Court had jurisdiction.
Law Points
- High Court jurisdiction under Article 226 depends on location of person or authority passing the order
- not on residence or location of affected person
- place where order has effect cannot determine jurisdiction
- Government is within territories if its seat from which in fact it functions is there
- Article 300 does not apply to writ proceedings
- cause of action has no place in Article 226 jurisdiction
- stare decisis requires not overruling previous constitutional decision unless demonstrated erroneous
Case Details
1960 LawText (SC) (12) 19
Civil Appeal No. 37 of 1955
Sinha, C.J., Kapur, J.L., Gajendragadkar, P.B., Subba Rao, K., Wanchoo, K.N., Das Gupta, K.C., Shah, J.C.
1961 AIR 532, 1961 SCR (2) 828
Vir Sen Sawhney, C.K. Daphtary, B.R.L. Iyengar, R.H. Dhebar, T.M. Sen, Sardar Bahadur
The Union of India & Another
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Nature of Litigation
Writ petition under Article 32(2A) of the Constitution of India (as applicable to Jammu and Kashmir) challenging premature retirement from service by the Government of India.
Remedy Sought
Appellant sought a writ, direction or order against the Union of India and State of Jammu and Kashmir quashing the Government of India's letter dated July 31, 1954 retiring him prematurely and for continuation in service until age 53.
Filing Reason
Appellant, holding substantive rank of Lieutenant Colonel in Jammu and Kashmir State Forces amalgamated with Defence Forces of the Union, was prematurely retired at age 45 by letter of Government of India without any allegation or charge, in contravention of Article 16(1) of the Constitution.
Previous Decisions
High Court of Jammu and Kashmir dismissed the writ application on preliminary objection that it had no territorial jurisdiction over the Union of India, relying on Election Commission v. Saka Venkata Subba Rao and K.S. Rashid v. Income Tax Investigation Commission.
Issues
Whether the High Court of Jammu and Kashmir had territorial jurisdiction under Article 32(2A) of the Constitution to issue a writ against the Union of India whose seat of government is in New Delhi
Whether the expression 'any person or authority' in Article 226 includes a Government and, if so, how its territorial location is to be determined
Whether the concept of cause of action can confer jurisdiction on a High Court under Article 226
Whether Article 300 of the Constitution applies to writ proceedings under Article 226
Whether the previous decisions in Election Commission v. Saka Venkata Subba Rao and K.S. Rashid v. Income Tax Investigation Commission were correctly decided and should be followed
Submissions/Arguments
Appellant argued that the High Court had jurisdiction because he was a resident of Jammu and Kashmir and the order of retirement affected him within that territory; the Union Government has functional existence throughout India; and the cause of action arose within the jurisdiction of the High Court.
Respondents argued that the Union of India is located in New Delhi, outside the territorial jurisdiction of the Jammu and Kashmir High Court; Article 226 jurisdiction depends on the location of the authority against whom the writ is sought, not on the residence of the petitioner; and previous Supreme Court decisions settled the law.
Ratio Decidendi
The jurisdiction of a High Court under Article 226 of the Constitution is determined by the location of the person or authority against whom the writ is sought, not by the residence or place of the person affected or by the place where the order has effect. The expression 'any person or authority' includes a Government, and a Government is located at its seat from which it in fact functions. Proceedings under Article 226 are not suits and Article 300 has no application; cause of action cannot confer jurisdiction. The Union of India, functioning from New Delhi, is not within the territories of the Jammu and Kashmir High Court, so that court lacks jurisdiction to issue a writ against it.
Judgment Excerpts
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 place where the order has effect cannot enter into the determination of such jurisdiction.
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.
There can be no doubt as to the correctness of the decisions relied on by the High Court and the appeal must fail.
Procedural History
The appellant filed a writ petition under Article 32(2A) of the Constitution in the High Court of Jammu and Kashmir against the Union of India and State of Jammu and Kashmir challenging his premature retirement. The High Court dismissed the petition on a preliminary objection that it had no territorial jurisdiction over the Union of India, relying on Election Commission v. Saka Venkata Subba Rao and K.S. Rashid v. Income Tax Investigation Commission. The appellant obtained a certificate of fitness and appealed to the Supreme Court. The Supreme Court, by majority, dismissed the appeal.
Acts & Sections
- Constitution of India: Article 32(2A), Article 226, Article 300, Article 16(1)
- Contempt of Courts Act, 1952:
