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K.S. Ramamurthi Reddiar Vs. the Chief Commissioner, Pondicherry and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1963SC1464; [1964]1SCR656
ActsConstitution of India - Articles 12, 15, 32 and 136; Andhra Civil Services (Disciplinary Tribunal) Rules, 1953; States Reorganisation Act, 1956 - Sections 115, 120, 121, 122 and 127
AppellantK.S. Ramamurthi Reddiar
RespondentThe Chief Commissioner, Pondicherry and anr.
Cases ReferredN. MasthanSahib v. Chief Commissioner
Excerpt:
.....or directions could not bedirectly enforced against the authority in pondicherry, the order would beineffective. this clearly implies that the quasi-judicial authority was notunder the control of the government of india like an executive oradministrative authority and therefore it was not possible for this court toissue a direction to the government of india to direct a quasi-judicialauthority to give effect to the decision of this court 'by the exercise oftheir powers of control over the authority outside the territory ofindia'.it follows from these observations in the majority decision inthat case that the control envisaged by the words 'under the control ofthe government of india' in art. 15 torequire otherwise) discriminates, that a citizen can complain of the breach ofart. that..........was not possible for this court toissue a direction to the government of india to direct a quasi-judicialauthority to give effect to the decision of this court 'by the exercise oftheir powers of control over the authority outside the territory ofindia'. it follows from these observations in the majority decision inthat case that the control envisaged by the words 'under the control ofthe government of india' in art. 12 is not the control which arises out ofmere appointment, payment and the right to take disciplinary action; thecontrol envisaged under art. 12 is a control of the functions of theauthorities concerned, and the right of the government of india by virtue ofthat control to give directions to the authority to function in a particularmanner with respect to such functions. now.....
Judgment:

Wanchoo, J.

1. The appeal and the writ petition arise out of the same order of the ChiefCommissioner of Pondicherry acting as the appellate authority under the MotorVehicles Act and will be dealt with together. The petitioner is one of fourteenpersons who had applied for a stage carriage permit before the State TransportAuthority, Pondicherry. The petitioner's application was rejected and thepermit was granted to Perumal Padayatchi, one of the respondents before us. TheState Transport Authority considered various factors one of which was thatPerumal Padayatchi was a native of Pondicherry and taking all the factors intoaccount, the permit was granted to Perumal Padayatchi. The petitioner went inappeal before the Appellate Authority, who is the Chief Commissioner ofPondicherry. The Appellate Authority dismissed the appeal and observed thateven if it were conceded that the claims of the petitioner were more or lessequal to those of Perumal Padayatchi, the latter would be entitled topreference on the ground that he is a native of Pondicherry. We may add thatthough the petitioner used to live in Pondicherry, he was not a native of Pondicherry.This order rejecting the appeal was passed on September 9, 1960. The appeal hasbeen filed with special leave against this order. The petitioner has also filedthe writ petition against this order in which he raises, the same points.

2. The main contention urged on behalf of the petitioner is that the orderof the appellate Authority shows that preference was granted to PerumalPadayatchi on the ground that he was a native of Pondicherry (i.e. he was bornin Pondicherry), while the petitioner was merely a resident of Pondicherry(i.e. he was born in Pondicherry). The petitioner contends that such grant ofpreference on the ground of place of birth is hit by Art. 15 of theConstitution as the petitioner is a citizen of India, and Art. 15 lays downthat 'the State shall not discriminate against any citizen on grounds onlyof religion, race, case, sex, place of birth or any of them'.

3. This contention of the petitioner is met on behalf of the respondents inthis way. The respondents submit that at the relevant time, Pondicherry was notwithin the territory of India and the Constitution did not apply to it.Therefore, the petitioner would have no right to apply to this Court forspecial leave under Art. 136 of the Constitution; nor would the petitioner havea right to proceed by way of a writ petition under Art. 32 against an orderwhich was passed by the Appellate Authority in Pondicherry at a time whenPondicherry was not in the territory of India. Reliance in this connection isplaced on behalf of the respondents on the decision of this Court in N. MasthanSahib v. Chief Commissioner, Pondicherry [1962] Su 1 S.C.R. 981.

4. The petitioner also relies on the same decision of this Court. It isconceded on his behalf that in view of that decision it was not open to thepetitioner to apply to this Court under Art. 136 and therefore the appeal maynot be maintainable. But it is urged that under Art. 12 'the State'for the purpose of part III of the Constitution is defined to include 'theGovernment and Parliament of India and the Government and the Legislature ofeach of the States and all local or other authorities within the territory ofIndia or under the control of the Government of India'. It is thereforecontended that even though Pondicherry was not a part of India when the orderunder challenge was passed, the Appellate Authority which passed the order wasa 'local or other authority under the control of the Government ofIndia' and therefore was amenable to a writ under Art. 32 of the Constitution.Further it is urged that whatever may have been the position when MasthanSahib's case [1962] Su. 1 S.C.R. 981, was decided, Pondicherry is nowwithin the territory of India since August 1962 and therefore this Court cannow issue a writ to the Appellate Authority if the order under challengeviolates Art. 15 of the Constitution.

5. The respondents however contend that the fact that Pondicherry is nowwithin the territory of India makes no difference in the application of thedecision in Masthan Sahib's case [1962] Su. 1 S.C.R. 981. It is submittedthat the reasons which led the majority in that case to refuse to issue a writclearly imply (even if there is no actual decision in express terms on thequestion now raised) that a judicial or quasi-judicial authority cannot be saidto be an authority 'under the control of the Government of India'within the meaning of Art. 12, and therefore the Appellate Authority which wasa quasi-judicial authority was not under the control of the Government of Indiaand could not be amenable to a writ under Art. 32 at the time when the orderunder challenge was passed. Further as the Constitution is not retrospective inoperation the fact that Pondicherry since August 1962 is part of the territoryof India would not give this Court jurisdiction to issue a writ now when itcould not issue a writ to the Appellate Authority in September, 1960, evenreading Art. 32 along with Art. 12 of the Constitution.

6. Before we come to consider the questions thus raised in the writpetition, we may state that so far as the appeal is concerned, it is concludedby the decision in Masthan Sahib's case [1962] Su 1 S.C.R. 981. Article136 gives power to this Court to grant special leave to appeal from anyjudgment, decree, determination, sentence or order in any cause or matterpassed or made by any court or tribunal in the territory of India. Admittedly,Pondicherry was not within the territory of India when the order was passed andtherefore Art. 136 would not apply to such an order. We have already indicatedthat this position is conceded on behalf of the petitioner. So far therefore asthe appeal is concerned it must be dismissed on the authority of MasthanSahib's case [1962] Su. 1 S.C.R. 981, though in the circumstances we shallpass no order as to costs.

7. Turning now to the writ petition, the main question that falls forconsideration is the effect of Art. 12 and whether on a proper interpretationof that Article, the Appellate Authority could in this case be said to be'a local or other authority under the control of the Government ofIndia'. It is submitted on behalf of the respondents that this matter isalso concluded by the decision of the majority in Masthan Sahib's case [1962]Su. 1 S.C.R. 981, and that the effect of that decision is that a judicialor a quasi-judicial authority would not be an authority 'under the controlof the Government of India'. On the other hand, the petitioner contendsthat there was no such decision in that case as will appear from the concludingportion of the judgment and therefore the question is open for considerationbefore us.

8. As both parties rely on that decision we may quote the relevant partthereof. Before we do so we may mention that the decision in that case was intwo parts, the first part being delivered on April 28, 1961 and the final parton December 8, 1961, though the report contains only the final part. Relevantpart of that decision which appears in the first part delivered on April 28,1961, is as below :-

'Learned counsel pointed out that for the purposeof the exercise of this Court's power under Art. 32 of the Constitution for theenforcement of the fundamental rights its jurisdiction was not limited to theauthorities functioning within the territory of India but that it extended alsoto the giving of directions and the issuing of orders to authoritiesfunctioning even outside the territory of India, provided that such authoritieswere subject to the control of the Government of India. This submission appearsto us well-founded and the power of this Court under Art. 32 of theConstitution is not circumscribed by any territorial limitation. It extends notmerely over every authority within the territory of India but also thosefunctioning outside, provided that such authorities are under the control ofthe Government of India.'

9. Then after considering Arts. 142 and 144 of the Constitution and pointingout that in view of the limitations imposed by Art. 142 on the territory withinwhich alone the orders or directions of this Court could be directly enforced,a question was posted whether a writ in the nature of certiorari or otherappropriate order or direction to quash a quasi-judicial order passed by anauthority outside the territory of India, though such authority is under thecontrol of the Government of India could issue. The majority judgment observedas follows in answer to the question thus posed :-

'If the order of the authority under the control ofthe Government of India but functioning outside the territory of India was ofan executive or administrative nature, relief could be afforded to a petitionerunder Art. 32 by passing suitable orders against the Government of Indiadirecting them to give effect to the decision of this Court by the exercise oftheir powers of control over the authority outside the territory of India. Suchan order could be enforceable by virtue of Art. 144, as also Art. 142. But in acase where the order of the outside authority is of a quasi-judicial nature, asin the case before us, we consider that resort to such a procedure is notpossible and that if the orders or directions of this Court could not bedirectly enforced against the authority in Pondicherry, the order would beineffective and that the Court will not stultify itself by passing such anorder.'

10. In the final order, however, at p. 1009 of the Report, the majorityobserved as follows :-

'The writ petitions must also fail and be dismissedfor the reason that having regard to the nature of the relief sought and theauthority against whose orders relief is claimed they too must fail. They arealso dismissed. We would add that these dismissals would not preclude thepetitioners from approaching this Court, if so desired in the event ofPondicherry becoming part of the territory of India'.

11. It is contended on behalf of the petitioner that the majority decisionin that case seems to imply that the Appellate Authority was under the controlof the Government of India as otherwise it would not have been necessary to putthe two questions which were put to the Government of India by the first partof the decision. Further it is contended that the observations in the finalpart of the judgment that the petitioners in that case were not precluded fromapproaching this Court, if so desired, in the event of Pondicherry becomingpart of the territory of India, also show that it was not held in that decisionthat judicial or quasi-judicial authorities could not be under the control ofthe Government of India. On the other hand, it is contended on behalf of therespondents that judicial or quasi-judicial authorities were not under thecontrol of the Government of India, for if they were a writ would have beenissued in that case in the same way as in the case of an executive oradministrative authority, i.e. a writ could issue to the Government of India'directing them to give effect to the decision of this Court by theexercise of their powers of control over the authority outside the territory ofIndia'. We have carefully considered the observations in the majoritydecision in this connection and it must be held that that decision is not adirect authority on the question that is now posed before us, for the point wasnot then specifically raised; and expressly decided, though as we will laterpoint out, the implication of the said decision is against the contentionraised by the petitioner. We have therefore to examine the contentions ofeither party as to the exact scope and effect of the words 'all local or otherauthorities within the territory of India or under the control of theGovernment of India', as if the question is res integra.

12. The first contention on behalf of the petitioner is that the words'under the control of the Government of India' in Art. 12 do notqualify the word 'authorities' therein but qualify the word'territory'. The petitioner would therefore read the relevant wordsof Art. 12 like this : 'All local or other authorities within theterritory of India or all local or other authorities within the territory underthe control of the Government of India'. Thus, according to thepetitioner, all that is required is that the territory even if it is not theterritory of India, should be under the control of the Government of India, andif the territory is under the control of the Government of India all local orother authorities in such territory would be included in the words 'theState'. On the other hand, the contention on behalf of the respondents isthat the words 'under the control of the Government of India' qualifythe word 'authorities' and not the word 'territory' in therelevant part of Art. 12 and that that part on its true interpretation wouldread thus : 'all local or other authorities within the territory of Indiaor all local or other authorities under the control of the Government ofIndia'.

13. Having given our anxious consideration to this matter we are of opinionthat the interpretation put on the relevant words on behalf of the respondentsis the right one, both gramatically and otherwise. Art. 12 gives an inclusivedefinition of the words 'the State' and within these words of thatArticle are included, (i) the Government and Parliament of India, (ii) theGovernment and the legislature of each of the States, and (iii) all local orother authorities. These are the only authorities which are included in thewords 'the State' in Art. 12 for the purpose of Part III. Then followthe words which qualify the words 'all local or other authorities'.These local or other authorities which are included within the words 'theState' of Art. 12 are of two kinds, namely, (i) those within the territoryof India, and (ii) those under the control of the Government, of India. Thereare thus two qualifying clauses to 'all local or other authorities.'These clauses are : (i) within the territory of India and (ii) under thecontrol of the Government of India. It would in our opinion be gramaticallywrong to read the words 'under the control of the Government ofIndia' as qualifying the word 'territory'. From the scheme ofArt. 12 it is clear that three classes of authorities are meant to be includedin the words 'the State', there; and the third class is of two kindsand the qualifying words which follow 'all local or other authorities'define the two types of such local or other authorities as already indicatedabove. Further all local or other authorities within the territory of Indiainclude all authorities within the territory of India whether under the controlof the Government of India or the Governments of various States and evenautonomous authorities which may not be under the control of the Government atall. In contradistinction to this the second qualifying clause refers only tosuch authorities as are under the control of the Government of India and so thesecond qualifying clause must govern the word 'authorities'.Therefore, the interpretation put forward on behalf of the respondents seems tous to be correct both gramatically and otherwise. 'All local or otherauthorities' would thus be of two kinds, namely, (i) those within theterritory of India, and (ii) those under the control of the Government ofIndia. In the latter case there is no qualification that they should be withinthe territory of India. It is enough if they are under the control of theGovernment of India wherever they may be. We are therefore of opinion that nowrit could issue to the appellate authority at the time when the order underchallenge was passed, unless it could be called 'other authority under thecontrol of the Government of India'. Further, there can be no doubt thatif no writ could issue to the Appellate Authority at the time the order waspassed, no writ could issue now after Pondicherry has become part of theterritory of India, for that would be giving retrospective operation to theConstitution for this purpose which obviously cannot be done : (see JanardanReddy v. the State : [1950]1SCR940 ).

14. The next question is whether a judicial or quasi-judicial authorityoutside the territory of India but within the territory under theadministration of the Government of India can be said to be under the controlof the Government of India. For this purpose we have to find out the meaning ofthe words 'under the control of the Government of India' as used inArt. 12 . It is submitted on behalf of the petitioner that if an authority isappointed by the Government of India, is paid by the Government of India and isliable to disciplinary action by the Government of India, it would be anauthority 'under the control of the Government of India'. It is urgedthat as the Chief Commissioner, who is the appellate Authority, was appointedby the Government of India, was paid by the Government of India and was underthe disciplinary control of the Government of India, he would be an authorityunder the control of the Government of India and this court would thereforehave been entitled to issue a writ against him even when the order was passedand therefore all the more so, when Pondicherry is now within the territory ofIndia. The contention however that this Court could issue a writ under Art. 32against the Appellate Authority even at the time when the order was passed, isclearly negatived by the majority decision in Masthan Sahib's case [1962] Su.1 S.C.R. 981, for if that could be done, writ would have been issued inthat case. The reason why writ was not issued in Masthan Sahib's case [1962]Su. 1 S.C.R. 981, was that the quasi-judicial authority was outside theterritory of India and this Court held that if the authority were of anexecutive or administrative nature, a writ could have been issued to theGovernment of India 'directing them to give effect to the decision of thisCourt by the exercise of their powers of control over the authority outside theterritory of India.' But as the authority in that case just like theauthority in the present case was a quasi-judicial authority resort to such aprocedure was not possible and if the orders or directions could not bedirectly enforced against the authority in Pondicherry, the order would beineffective. This clearly implies that the quasi-judicial authority was notunder the control of the Government of India like an executive oradministrative authority and therefore it was not possible for this Court toissue a direction to the Government of India to direct a quasi-judicialauthority to give effect to the decision of this Court 'by the exercise oftheir powers of control over the authority outside the territory ofIndia'. It follows from these observations in the majority decision inthat case that the control envisaged by the words 'under the control ofthe Government of India' in Art. 12 is not the control which arises out ofmere appointment, payment and the right to take disciplinary action; thecontrol envisaged under Art. 12 is a control of the functions of theauthorities concerned, and the right of the Government of India by virtue ofthat control to give directions to the authority to function in a particularmanner with respect to such functions. Now if the authorities wereadministrative or executive the control of the Government of India would notonly be by virtue of appointment, payment and disciplinary action, but it wouldalso extend to directing the authority to carry out its functions in aparticular manner and a purely executive or administrative authority can alwaysbe directed by the Government of India under which it is functioning to act ina particular manner with respect to its functions. This, however, cannot besaid of a quasi-judicial or judicial authority even though the Government ofIndia may have appointed the authority and may be paying it and may have theright to take disciplinary action against it in certain eventualities. It wasnot open to the Government of India to control the functions of aquasi-judicial or judicial authority and direct it to decide a particularmatter before it in a particular way. It seems to us therefore that the controlenvisaged under Art. 12 is control of the functions of the authorities and itis only when the Government of India can control the function of an authoritythat it can be said that the authority is under the control of the Governmentof India. Such control is possible in the case of a purely executive oradministrative authority; it is impossible in the case of a quasi-judicial orjudicial authority, for in the very nature of things, where rule of lawprevails, it is not open to the Government, be it the Government of India orthe Government of a State, to direct a quasi-judicial or judicial authority todecide a particular matter before it in a particular manner. Therefore, thisbeing the nature of the control which the Government of India must exercise inorder that an authority functioning outside the territory of India may be saidto be an authority under the control of the Government of India within themeaning of Art. 12, a quasi-judicial or judicial authority cannot be said to bean authority under the control of the Government of India within this meaning.We are therefore of opinion that the Appellate authority being quasi-judicialcould not be directed by the Government of India to decide a particular matterbefore it in a particular manner and therefore it cannot be said that it is anauthority under the control of the Government of India. As we have alreadyindicated, this follows from the reasoning of the majority in Masthan Sahib'scase [1962] Su. 1 S.C.R. 981, though it was not decided specifically assuch in that case. We are therefore of opinion that judicial or quasi-judicialauthorities functioning in territories administered by the Government of Indiabut outside the territory of India cannot be said to be authorities under thecontrol of the Government of India within the meaning of Art. 12, and thereforeArt. 12 would not apply to such authorities functioning outside the territoryof India. Consequently it would not be open to this Court to issue a writ underArt. 32 read with Art. 12 against a quasi-judicial authority outside theterritory of India even though that authority might have been appointed by theGovernment of India, might be paid by the Government of India or the Governmentof India might have the power of disciplinary action against it. The AppellateAuthority being a quasi-judicial authority would thus not be under the controlof the Government of India within the meaning of Art. 12. Therefore it wouldnot have been open to this Court to issue a writ against the order underchallenge when it was passed. In consequence it is not open to this Court nowthat Pondicherry has become part of India to issue a writ to the AppellateAuthority with respect to an order passed by it before Pondicherry became partof India, as the Constitution for this purpose is not retrospective.

15. The matter can be looked at in another way. Art. 15 prohibits the Statefrom discriminating against any citizen on grounds only of religion, race,caste, sex, place of birth or any of them. Therefore it is only when the Stateas defined in Art. 12 (for there is nothing in the context of Art. 15 torequire otherwise) discriminates, that a citizen can complain of the breach ofArt. 15 and ask for relief from this Court under Art. 32. We have however heldthat the Chief Commissioner being a quasi-judicial authority was not under thecontrol of the Government of India within the meaning of Art. 12 . Therefore, hecould not be the State within that Article. If so, it follows that the discrimination(assuming there was any) was by an authority which was not the State. Theprotection of Art. 15 is against discrimination by 'the State'. Thepetitioner therefore would not be entitled to any protection under Art. 15against the Chief Commissioner at the time the impugned order was made. That isanother reason why the present petition must fail.

16. We therefore dismiss the appeal and pass no order as to costs in respectthereof. We dismiss the writ petition with costs.

17. Appeal dismissed.

18. Writ petition dismissed.


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