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Om Prakash Vs. Divisional Superintendent, Northern Rly. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 810 of 1961
Judge
Reported inAIR1970All440
ActsConstitution of India - Article 226(1A)
AppellantOm Prakash
RespondentDivisional Superintendent, Northern Rly.
Appellant AdvocateS.C. Khare and ;K.N. Singh, Advs.
Respondent AdvocateStanding Counsel
Excerpt:
constitution - writ jurisdiction - clause 1-a of article 226 of constitution of india - jurisdiction of high court challenged - cause of action arises in high court's jurisdiction - held, high court has jurisdiction under clause 1-a. - - jagdish swarup, therefore, contended that the writ petition was bound to fail. 17. the respondents placed strong reliance upon a decision of the supreme court in u. ' it is further stated on page 217 that the general principle is that alterations in procedure are retrospective, unless there be some good reason against it. it is well settled that all procedural laws are retrospective unless the legislature expressly states to the contrary......chief mechanical engineer, northern railway, new delhi can be challenged by the petitioner before delhi high court. if delhi high court can quash the order of the chief mechanical engineer, northern railway, new delhi, passed in august, 1961, the respondents cannot seriously object to an inquiry into the same matter by allahabad high court. whether a petition under article 226 of the constitution should be filed in delhi high court or allahabad high court is a matter of procedure. clause (1-a) of article 226 has not enlarged the substantive powers of high courts. the only effect of clause (1-a) is to enlarge the territorial limits of high courts in certain cases. 19. in maxwell's 'interpretation of statutes', 11th edition the principle of beneficial construction has been explained on.....
Judgment:

Oak, C.J.

1. This reference to a Full Bench arises out of a writ petition filed by a former railway employee. Om Pra-kash was an employee of Northern Railway. On 6-3-1961 he was removed from service by the Divisional Superintendent, Northern Railway. Lucknow. Om Prakash filed in this Court in March, 1961 the writ petition challenging the order of removal He also filed an appeal to the Chief Mechanical Engineer, Northern Railway. New Delhi against the order of removal. On 19-8-1961 the Divisional Superintendent, Lucknow informed the petitioner that the appeal had been dismissed by the Chief Mechanical Engineer, Northern Railway, New Delhi.

2. The petitioner applied to this Court for permission to implead the Chief Mechanical Engineer, Northern Railway, New Delhi and the Union of India as respondents Nos. 2 and 3 in the writ petition. Amendment was allowed on 3-7-1967.

3. Mr. Jagdish Swarup appearing for the respondents urged before a single Judge of this Court that the writ petition is not maintainable. Mr. Jagdish Swarup contended that the order of removal dated 6-3-1961 has merged in the appellate order of the Chief Mechanical Engineer. It was pointed out that the office of the Chief Mechanical Engineer is at New Delhi. The office is beyond the territorial jurisdiction of Allahabad High Court. Mr. Jagdish Swarup, therefore, contended that the writ petition was bound to fail. The petitioner relied on Clause (1-A) of Article 226 of the Constitution. It was urged for the petitioner that since a part of the cause of action arose within Uttar Pradesh, this Court has jurisdiction. The respondents pointed out that Clause (1-A) was inserted in Article 226 of the Constitution by the Constitution (Fifteenth Amendment) Act, 1963, which came into force in October, 1963, The appellate order was passed by the Chief Mechanical Engineer in 1961--before the amendment came into force. It was contended for the respondents that the amendment of Article 226 in 1963 cannot have retrospective effect. Consequently, this Court has no power to interfere with the appellate order passed by the Chief Mechanical Engineer in the year 1961. The learned single Judge considered that the preliminary objection raised on behalf of the respondents presented much difficulty. He, therefore, referred the following question of law to a larger Bench:--

'Whether the Fifteenth Amendment of the Constitution which came into force in October, 1963, empowers this Court to interfere with orders passed before the amendment?'

4. When the case came up before a Division Bench, the learned Judges noticed that there was a conflict of views among High Courts as to whether the amendment of Article 226 in the year 1963 can have retrospective operation. They, therefore, referred the question of law to a Full Bench.

5. Clause (1) of Article 226 of the Constitution states:--

'Notwithstanding anything in Article 32, every 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 those territories directions, orders or writs, 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 Part III and for any other purpose.'

Under Clause (1), a High Court could only deal with matters within its territorial jurisdiction.

6. Clause (1-A) was inserted in Article 226 by the Constitution (Fifteenth Amendment) Act, 1963, which came into force on 5-10-1963. Clause (1-A) of Article 226 states:--

'The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person Is not within those territories.'

7. In Collector of Central Excise v. IV. D. Misra, 1963 All LJ 276 it was held by this Court that when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order of the latter authority which is the operative order after the appeal is disposed of, Since the High Court cannot issue a writ against the appellate authority for want of territorial jurisdiction, it would not be open to it to issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of, though the appellate authority merely confirmed the order of the original authority and dismissed the appeal.

8. In Collector of Customs v. East India Commercial Co., AIR 1963 SC 1124 it was held that when once an order of an original authority is taken in appeal to the appellate authority, which is located beyond the territorial jurisdiction of the High Court, it is the order of the latter authority which is the operative order after the appeal is disposed of. Since the High Court cannot issue a writ against the appellate authority for want of territorial jurisdiction, it would not be open to it to issue a writ to the original authority, which may be within its territorial jurisdiction, once the appeal is disposed of, even if the appellate authority merely confirmed the order of the original authority and dismissed the appeal.

9. That decision of the Supreme Court was followed by this Court in Divisional Manager v. S. A. Nagrami, 1968 All LJ 180= (AIR 1968 All 422).

10. In view of the difficulties created by these decisions, Parliament considered it expedient to enlarge the jurisdiction of High Courts to issue writs under Article 226 of the Constitution. It was considered hard upon litigants in different parts of India to require them to file writs in Punjab High Court simply because offices of Government of India were located in New Delhi within the jurisdiction of Punjab High Court, Clause (1-A) of Article 226 now provides that a High Court may exercise jurisdiction under Article 226 notwithstanding that the seat of such Government or authority is beyond the territorial limits of the High Court, provided that a part of the cause of action arose within the territorial jurisdiction of the High Court. The object of the amendment made by the Constitution (Fifteenth Amendment) Act, 1963 was explained in Basu's Commentary on the Constitution of India, 5th Edition on page 363:--

'In some earlier High Court decisions, It was held that the situs of the cause of action was one of the factors which gave jurisdiction to a High Court under Article 226, so that even though the respondent was outside the jurisdiction of a High Court it could entertain an application for Article 226, if the cause of action arose within its jurisdiction.

11. This view was, however negatived by the Supreme Court in Election Commission v. Saka Venkata. (AIR 1953 SC 210) in these words:

'The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority 'within the territories' in relation to which the High Court exercises jurisdiction .....'.

12. The Supreme Court thus laid down the rule that cause of action was no consideration and that it was the residence or location of the respondent which alone gave territorial jurisdiction to a High Court to entertain an application under Article 226 and this view was reiterated in all subsequent cases. This led to the curious result that the High Court of Punjab was the only High Court where relief under Article 226 could be sought against the Government of India. It also crippled the effectiveness of the writs to the residents of the different States whenever the respondent was resident or situate outside the limits of the State where the applicant was residing.

The object of the present Amendment is to make the accrual of cause of action an additional factor to give jurisdiction to a High Court, under Article 226.

13. The question now arises whether Clause (1-A) of Article 226 introduced in the year 1963 can have retrospective operation. In Sheo Mohan Srivastava v. Assistant Security Officer, Allahabad, Writ No. 1367 of 1962, D/- 28-9-1966 (All) G. C. Mathur, J. held that the amendment of Article 226 of the Constitution is not retrospective, and does affect petitions filed before the date of the amendment in respect of orders passed before the amendment.

14. Similarly, in Mohammed Fiazuddin Khan v. Custodian, Evacuee Property, Writ No. 638 of 1961. D/- 25-11-1963 (All) a single Judge of Andhra Pradesh High Court held that a constitutional amendment is not retrospective. A High Court cannot exercise its power under Article 226 of the Constitution in respect of orders passed before the Fifteenth Amendment of the Constitution, if the order was passed outside the Court's territorial jurisdiction.

15. In Keshavlal v. Mohanlal, AIR 1968 SC 1336 the facts were these. A certain order passed under Section 29 of the Bombay Rent Control Act of 1947 was challenged by a petition under Section 115 of the Code of Civil Procedure. Section 29(2) of the Bombay Act was amended by Gujarat Act No. 18 of 1965. By this amendment a jurisdiction wider than that exercisable under Section 115, Civil P. C. was conferred on the High Court. It was held that the amendment cannot apply to a pending revision underSection 115. Civil P. C. filed long before the date of amendment The revision had to be decided in accordance with the limitations imposed by Section 115, Civil P. C. The question whether the High Court could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate Court was not a matter of procedure. The order of the appellate Court, subject to scrutiny by the High Court under Section 115, Civil P. C., was final, In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate Court was according to law, the legislature did not attempt to legislate in the matter of procedure. Section 29(2) of the Bombay Act was not intended to be retrospective in operation.

16. In Rajaram Dadu v. State, AIR 1951 Nag 443 it was held by a Full Bench of Nagpur High Court that Article 226 does not relate to matters of procedure, but confers upon High Courts a power to interfere in certain cases. This power cannot be invoked by a person aggrieved by a decision of a High Court or Tribunal arrived at before the provision came into force.

17. The respondents placed strong reliance upon a decision of the Supreme Court in U. P. State v. Mohd. Nooh, AIR 1958 SC 86. Mohd. Nooh was a police constable. He was dismissed from service by the District Superintendent of Police on 21-12-1948. The order of dismissal was confirmed in appeal by the Deputy Inspector-General of Police on 7-6-1949, These orders dated 21-12-1948 and 7-6-1949 were challenged by Mohd. Nooh by filing a writ petition in this Court. The petition was allowed by this Court; and the two orders passed by the police authorities in 1948 and 1949 were quashed. The decision of this Court was reversed in appeal by the Supreme Court. It was held that the Constitution is prospective in its application, and has no restrospective operation except where the contrary has been expressly provided for. Article 226 of the Constitution has no retrospective operation. Transactions which are past and closed and the rights and liabilities which have accrued and vested would remain unaffected.

18. Mohd. Nooh's case was decided by the Supreme Court on the principle that the State of U. P. had acquired certain rights by virtue of the appellate order passed by the Deputy Inspector-General of Police on 7-6-1949. Those rights could not be disturbed under Article 226 of the Constitution, which became effective on 26-1-1950. It may be that Article 226 has no retrospective operation. But it does not follow that an amendment of Article 226 cannot have retrospective effect. The respondents in the present case cannotseriously maintain that they have got a vested right by virtue of the order passed by the Chief Mechanical Engineer. Northern Railway, New Delhi in August, 1961. Admittedly, the order of the Chief Mechanical Engineer, Northern Railway, New Delhi can be challenged by the petitioner before Delhi High Court. If Delhi High Court can quash the order of the Chief Mechanical Engineer, Northern Railway, New Delhi, passed in August, 1961, the respondents cannot seriously object to an inquiry into the same matter by Allahabad High Court. Whether a petition under Article 226 of the Constitution should be filed in Delhi High Court or Allahabad High Court is a matter of procedure. Clause (1-A) of Article 226 has not enlarged the substantive powers of High Courts. The only effect of Clause (1-A) is to enlarge the territorial limits of High Courts in certain cases.

19. In Maxwell's 'Interpretation of Statutes', 11th Edition the principle of beneficial construction has been explained on page 66 :--

'It is said to be the duty of the judge to make such construction of a statute as shall suppress the mischief and advance the remedy.'

It is further stated on page 217 that the general principle is that alterations in procedure are retrospective, unless there be some good reason against it.

20. In Kallu Khan v. Kamrulnisa, 1962 All LJ 1039 it was held that jurisdiction of the High Court for deciding sirdari issues is governed by the law applicable on the date of the decision of the suit and not by the one in force on the date of its institution.

21. In Anant Gopal Sheorey v. State of Bombay, AIR 1958 SC 915 it was explained that no person has a vested right in any course of procedure.

22. In Shiv Bhagwan v. Onkarmal, AIR 1952 Bom 365 it was explained that no party has a vested right to a particular proceeding or to a particular forum. It is well settled that all procedural laws are retrospective unless the Legislature expressly states to the contrary. Procedural laws must, therefore, be applied at the date when a suit or proceeding comes on for trial or disposal. The Court is bound to take notice of the change in law, and is bound to administer the law as it was when the suit came on for hearing. If the Court had jurisdiction to try the suit when it came on for disposal, it cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted.

23. In Harcharanlal v. Indian Institute of Sugarcane etc., AIR 1964 All 379 N. U. Beg, J. observed on page 381:--

'Section 8 of this Amendment Act introduced Clause (1-A) in Article 226 of the Constitution of India and empowered the High Court to exercise its jurisdiction also in relation to the territories within which the cause of action, wholly or in part, arises notwithstanding that the Government concerned is not within the territories within which the said High Court is situate..................On behalf of the opposite parties it was argued that the writ petition was filed on the 1st of August 1962. The above amendment.........wouldnot apply to the present case. I am unable to accept this contention. No question of retrospectively arises in the present case as the amending law relates to the power of the High Court. The relevant date, therefore, would be the date on which the High Court exercises its power to issue the writ and not the date on which the party exercises its right to file a writ petition. On the date on which this Court is exercising the power and is issuing the writ, the amended Act had come into force and the exercise of its enlarged power by the High Court on such a date would be valid and justified by the provisions of law.'

24. In Damomal v. Union of India, AIR 1967 Bom 355 it was held that if the effect of an order by governmental authority at Delhi fell on the petitioner at Bombay, Bombay High Court can entertain the petition challenging the action of such authority.

25. In Anwar Mohammad v. Custodian of Evacuee Property, Jaipur, AIR 1964 Raj 260 it was held by a Division Bench of Rajasthan High Court that Clause (1-A) of Article 226 of the Constitution does not in any manner confer any additional power on High Courts. The purpose and intent of the amendment of Art 226 is to enlarge the jurisdiction of the High Courts to issue writs, orders or directions to any Government, authority or person, notwithstanding that the seat of such Government or authority is not within the territorial jurisdiction of the High Court, and thus it only extends jurisdiction beyond the boun-daries of the State if the cause of action arises within its territory- Clause (l-A) of the Article 226 is simply procedural in nature, and it does not confer any vested right on the citizens of India. The amendment of Article 226 is, therefore, retrospective in effect so as to enable the High Court to exercise its powers under. Article 226 in respect of a cause of action arising before the amendment I respectfully agree with the view of Rajasthan High Court

26. It will be noticed that when the present writ petition was filed in March, 1961, the petitioner was merely challenging the order of dismissal dated 6-3-1961 passed by the Divisional Superintendent, Northern Railway, Lucknow. At that stage this Court had no difficulty in quashing the impugned order dated 6-3-1961. Complications arose, because the petitioner's departmental appeal was dismissed by the Chief Mechanical Engineer, Northern Railway, New Delhi. It would be hard upon the petitioner if the petition were now to be dismissed on the ground that the petitioner took the precaution to file a departmental appeal in addition to filing a writ petition in this Court. The petitioner is a resident of Lucknow. The first order dated 6-3-1961 was passed by an authority at Lucknow. This Court had jurisdiction to interfere with the order dated 6-3-1961. The only question is whether this Court has power to interfere with the appellate order, passed by the Chief Mechanical Engineer, Northern Railway, New Delhi in August. 1961. The writ petition will be disposed of in 1970. The amendment made in Article 226 by Constitution (Fifteenth Amendment) Act, 1963 relates to a matter of procedure. This Court can, therefore, make full use of its enlarged jurisdiction under Clause (1-A) of Article 226 of the Constitution with respect to the appellate order of the Chief Mechanical Engineer, Northern Railway, New Delhi, in spite of the fact that New Delhi is outside Uttar Pradesh.

27. My answer to the question referred to the Full Bench is therefore, as follows. On the facts and in the circumstances of the present case, this Court is competent to interfere with the appellate order of the Chief Mechanical Engineer, Northern Railway, New Delhi passed in the year 1961.

Mukerjee, J.

28. I agree with my lord the Chief Justice as to the answer proposed by him and have nothing useful to add to his judgment

Shukla, J.

28-A. I concur.

29. BY THE COURT:-- Our answer to the question, referred to the Full Bench Is as follows. On the facts and in the circumstances of the present case, this Court is competent to interfere with the appellate order of the Chief Mechanical Engineer, Northern Railway, New Delhi passed in the year 1961.


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