PETITIONER:
N. MASTHAN SAHIB
Vs.
RESPONDENT:
CHIEF COMMISSIONER, PONDICHERRY
DATE OF JUDGMENT:
08/12/1961
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION:
1962 AIR 797 1962 SCR Supl. (1) 981
CITATOR INFO :
R 1963 SC1464 (3,4,5,6,7,12)
ACT:
Territory of India-Pondicherry, if part of
India-Question referred to Union Government-Answer
of Union Government, if binding on Court-Orders of
authorities in Pondicherry-Appeal and Writ
Petition, if maintainable in Supreme Court-
Constitution of India, Arts. 1 (3), 32 and 136.
HEADNOTE:
The Supreme Court referred two questions to
the Union Government viz (i) whether. Pondicherry
was comprised within the territory of India, and
(ii) if not, what was the extent of the
jurisdiction exercised by the Union Government and
the French Government over the territory. The
answers given were that (i) Pondicherry was not
comprised within the territory of India and (ii)
the Union Government exercised full jurisdiction
over Pondicherry and the French Government did not
exercise any de facto jurisdiction over it. There
was a treaty of cession between France and India
in respect of Pondicherry but it had not been
ratified as required by the French and Indian
laws. The appellant contended that the answer of
the Union Government to the second question
established that Pondicherry was part of the
territory of India and that the Court was not
bound by the answer to the first question.
^
Held, that Pondicherry was not comprised
within the territory of India as specified in Art.
1(3) of the Constitution. The answer of the Union
Government on this question was binding on the
Court. There was no conflict between the answers
to the two questions. Though complete
administrative control over Pondicherry had been
transferred to the Government of India it could
not be equated to a transfer of territory. Unless
there was ratification of the Treaty there could
legally be no transfer of territory. Accordingly,
no appeal could be entertained by the Court under
Art. 136 of the Constitution against the decisions
of the authorities in Pondicherry.
982
Duff Development Company v. Government of
Kelantan 1924 A. C. 797, Government of the
Republic of Spain v. Arantzazu Mendi. (1939) A. C.
256 and Fagernes 1927 Probate 311, applied.
Jolley v. Mainka 49 C.L.R. 242 and Efrost v.
Slevenson, 58 C.L.R. 528, distinguished.
Per Gajendragadkar, Wanchoo and Ayyangar,
JJ.-Having regard to the nature of the relief
sought no writ under Art. 32 of the Constitution
could be issued to the authorities in Pondicherry.
Per Sarkar and Das Gupta, JJ-The Supreme
Court could issue a writ under Art. 32 to the
quasi-Judicial authorities in Pondicherry. Article
32 was a fundamental right and the right to obtain
a writ was equally a fundamental right. If the
Constitution gave to a party a fundamental right
to a writ the Court could not refuse that right.
The consideration that the writ issued may not be
enforced in Pondicherry could not be allowed to
defeat the provisions of the Constitution. Such a
consideration is relevant only in the case of
discretionary orders.
K. K. Kochunni v. The State of Madras, [1959]
Supp. 2 S.C.R. 316, In re International Pulp and
Paper Co. Ltd., (1876) 3 Ch D.594, Reg v. Fox, 8
E. & B. 939, R. v. Cassel, (1916) I K B. 595 and
In re Banwarilal Roy, 48, C.W.N. 755, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 42 and 43 of 1961.
Appeals by special leave from the judgments
and orders dated September 7, 1960 of the Chief
Commissioner, Pondicherry in Appeals Nos. 56 and
57 of 1960.
WITH
Petitions Nos. 297 and 298 of 1960.
Petitions under Art. 32 of the Constitution
of India for enforcement of Fundamental Rights.
A. V. Viswanatha Sastri R. K. Garg, M.K.
Ramamurthy, S.C. Agrawal and D. P. Singh, for the
appellants/petitioners (In both the appeals and
the petitions.)
C. K. Daphtary, Solicitor-General of India,
B. Sen, B. R. L. Iyengar and T. M. Sen, for the
983
respondent No. 1 (in both the appeals) and
respondents Nos. 1 and 2 (in both the petitions).
A. S. R. Chari, K. R. Choudhri and R.
Mahalingier, for respondent No. 2 (in both the
appeals).
R. Gopalakrishnan, for respondent No. 3 (in
both the petitions).
1961. December, 8.-The Judgment of
Gajendragadkar, Wanchoo and Ayyangar, JJ., was
delivered by Ayyangar, J. The judgment of Sarkar
and Das Gupta, JJ., was delivered by Sarkar, J.
AYYANGAR, J.-The two Civil Appeals are by
special leave of this Court and the two Writ
Petitions have been filed by the respective
appellants seeking the same relief as in the
appeals, the relief sought being the setting aside
of orders passed by the Chief Commissioner of
Pondicherry as the State Transport appellate
authority (under the Motor Vehicles Act). All
these four have been heard together because of a
common point raised regarding the jurisdiction of
this Court to entertain the appeals and the
petitions.
It is manifest that the preliminary point
about the jurisdiction of this Court should have
first to be considered before dealing with the
merits of the contentions raised in the appeals
and petitions. It might be convenient to state a
few facts to appreciate the context in which the
questions debated before us arise and the point
concerned in the order now passed.
Sivarama Reddiar the appellant in Civil
Appeal 43 of 1961 and the petitioner in Writ
Petition 298 of 1960, is a citizen of India and is
engaged in the business of motor transport. By a
notification dated December 27, 1958 in the
Official Gazette of Pondicherry the State
Transport Commission of Pondicherry invited
applications for the grant of stage carriage
permits to be submitted before February 27, 1959,
including the route from Pondicherry to Karaikal,
the latter being another
984
former French possession. In response to this
notification, Sivarama Reddiar as well as one
Gopal Pillai who is the second respondent to the
appeal and the second respondent in the Writ
Petition were two of the 19 persons who made
applications for the grant of this permit to them.
Before the State Transport Commission dealt with
these applications, the Government of India in the
exercise of its powers under s. 4 of the Foreign
Jurisdiction Act, 1947 published a notification in
the Official Gazette of Pondicherry extending the
provisions of the Indian Motor Vehicles Act, 1939
as in force in Delhi to Pondicherry with effect
from June 19, 1959. Rules 3(4) and 4 of this order
promulgated under the Foreign Jurisdiction Act
provided:
“3(4). Any Court, tribunal or authority
required or empowered to enforce the said Act
in Pondicherry may for the purpose of
facilitating its application in relation to
Pondicherry construe the said Act with such
alteration not affecting the substance as may
be necessary or proper with respect to the
matter before the Court, tribunal or
authority as the case may be.”
Rule 4 effected a repeal of existing laws in these
terms:
“Repeal of existing laws:-All laws in
force in Pondicherry immediately before the
commencement of the Order which correspond to
the Act and the rules, notifications and
‘Orders applied to Pondicherry by this order
shall, except in so far as such laws relate
to the levy of any fee, cease to have effect
save as respects things done or omitted to be
done before such commencement.”
On July 21, 1959, the Chief Commissioner of
Pondicherry, in exercise of the powers conferred
on him by s. 44 of the Motor Vehicles Act, 1939
constituted a State Transport Authority for
Pondicherry The
985
State Transport Authority, Pondicherry thus
created, issued a notification on August 1, 1959
by which it required persons who had applied for
Stage Carriage permits in response to the
notification dated December 27, 1958 to furnish
particulars with regard to a number of matters
which were relevant for being considered for the
grant of a Stage Carriage permit under the Motor
Vehicles Act. Both the appellant-petitioner
Sivarama Reddiar as well as inter alia the
respondent Gopal Pillai furnished the required
particulars. The Particulars supplied by the
parties were checked and verified by designated
authorities and thereafter the State Transport
Authority by an order on April 30, 1960 directed
the grant of the permit to the appellant-
petitioner Sivarama Reddiar rejecting the claims
of all others including the respondent Gopala
Pillai. Though the Motor Vehicles Act which had
been extended to Pondicherry included s. 64,
whereby persons aggrieved by an order of a State
Transport Authority could file appeals against
such order, no appellate authority had been
constituted by the Chief Commissioner. This
situation was remedied by a notification by the
Chief Commissioner dated May 4, 1960 whereby he
constituted himself under s. 68 of the Act as the
appellate authority for the purpose of exercising
jurisdiction under s. 64 thereof. Several of the
aggrieved operators including Gopala Pillai
preferred appeals to the Chief Commissioner. By an
order dated September 5, 1960 the Chief
Commissioner, Pondicherry allowed the appeal of
the respondent Gopala Pillai, set aside the order
of the State Transport Authority granting the
permit to the appellant Sivarama Reddiar and
directed that the permit for the route Pondicherry
to Karaikal be issued in favour of the respondent
Gopala Pillai. Writ Petition 293 of 1960 has been
filed to secure the setting aside of this order of
the Chief Commissioner on the ground that the
order violates the fundamental rights guaranteed
to the petitioner by
986
Part III of the Constitution and Civil Appeal No.
43 of 1961 is directed to obtain the same relief.
It is not necessary at this stage to set out the
facts of the other appeal and petition by Masthan
Sahib, because except that the route is different
and so, are the grounds on which the order of the
Chief Commissioner is sought to be impugned, the
other material facts relevant for the
consideration of the preliminary point to which we
adverted are exactly the same.
The preliminary objection that is raised to
the entertainment of the appeal is shortly as
follows:
Art. 136 (1) of the Constitution under which
the appellant has obtained special leave reads:
“136 (1). Notwithstanding anything in this
Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal
from any judgment, decree, determination,
sentence or order in any cause or matter
passed or made by any court or tribunal in
the territory of India.”
In order, therefore, that this Court might have
jurisdiction to entertain the appeal it is a
prerequisite that the Court or tribunal from whose
judgment or order the appeal is preferred should
be one in the territory of India. It is urged on
behalf of the respondent that Pondicherry is not
part of the territory of India, with the
consequence that the Chief Commissioner whose
order is impugned in the appeal is not “a Court or
tribunal in the territory of India.” The question
thus raised is of great political and
constitutional significance and it is not disputed
that if this area were not part of the territory
of India, this Court would have no jurisdiction in
the absence of any legislation by Parliament under
Art. 138 (1), and the Civil Appeal would have to
be dismissed as incompetent.
It was common ground that this was the
position in regard to the maintainability of the
appeal
987
but in regard to the Writ Petition Mr. Vishwanatha
Shastri-learned Counsel for the petitioner-sought
to sustain its maintainability on slightly
different grounds. He invited our attention to the
terms of Art. 12 of the Constitution which reads:
“In this Part, unless the context otherwise
requires, “the State” includes the Government
and Parliament of India and the Government
and the Legislature of each of the States and
all local or other authorities within the
territory of India or under the control of
the Government of India.”
Learned Counsel pointed out that for the purpose
of the exercise of this Court’s powers under Art.
32 of the Constitution for the enforcement of the
fundamental rights its jurisdiction was not
limited to the authorities functioning within the
territory of India but that it extended also to
the giving of directions and the issuing of orders
to authorities functioning even outside the
territory of India, provided that such authorities
were subject to the control of the Government of
India. This submission appears to us well-founded
and that the powers of this Court under Art. 32 of
the Constitution are not circumscribed by any
territorial limitation. It extends not merely over
every authority within the territory of India but
also those functioning outside provided that such
authorities are under the control of the
Government of India.
The power conferred on this Court by Part III
of the Constitution has, however, to be read in
conjunction with Art. 142 of the Constitution
which reads:
“142 (1) The Supreme Court in the exercise of
the jurisdiction may pass such decree or
makes such order as is necessary for doing
complete justice in any cause or matter
pending before it, and any decree so passed
or order so made shall be enforceable
throughout the territory
988
of India in such manner as may be prescribed
by or under any law made by Parliament and
until provision in that behalf is so made, in
such manner as the President may by order
prescribe.
(2) Subject to the provisions of any law made
in this behalf by Parliament, the Supreme
Court shall, as respects the whole of the
territory of India, have all and every power
to make any order for the purpose of securing
the attendance of any person, the discovery
or production of any documents, or the
investigation or punishment of any contempt
of itself.”
It would be seen that Art. 142 brings in a
limitation as regards the territory which the
orders or directions of this Court could be
enforced. It is manifest that there is an anomaly
or a discordance between the powers of this Court
under Art. 32 read with Art. 12 and the
executability or enforceability of the orders
under Art. 142. It is possible that this has
apparently arisen because the last words of Art.
12 extending the jurisdiction of this Court to
authorities “under the control of the Government
of India” were added at a late stage of the
constitution making while Arts. 142 and 144, the
latter reading:
“All authorities, civil and judicial, in
the territory of India shall act in aid of
the Supreme Court”.
were taken, in whole or in part, from s. 210 of
the Government of India Act, 1935 and that no
necessary changes were made in Art. 142 to bring
it into line with Art. 12 as it finally emerged
and the powers of this Court under Art. 32. But
this however offers us no solution to the question
which is whether, in view of the limitation
imposed by Art. 142 on the area within which alone
the directions or orders of this Court could be
directly
989
enforced, the Court could issue a writ in the
nature of certiorari or other appropriate writ or
direction to quash a quasi-judicial order passed
by an authority outside the territory of India,
though such authority is under the control of the
Government of India. If the order of the authority
under the control of the Government of India but
functioning outside the territory of India was of
an executive or administrative nature, relief
could be afforded to a petitioner under Art. 32 by
passing suitable orders against the Government of
India directing them to give effect to the
decision of this Court by the exercise of their
powers of control over the authority outside the
territory of India. Such an order could be
enforceable by virtue of Art. 144, as also Art.
142. But in a case where the order of the outside
authority is of a quasi-judicial nature, as in the
case before us, we consider that resort to such a
procedure is not possible and that if the orders
or directions of this Court could not be directly
enforced against the authority in Pondicherry, the
order would be ineffective and the Court will not
stultify itself by passing such an order.
In these circumstances it becomes imperative
that we should ascertain the constitutional and
political status of Pondicherry in relation to the
Union of India. Certain documents have been placed
before us and in particular an agreement dated
October 21, 1954 entered into between the
Government of India and of France by which the
administration of Pondicherry was ceded to the
Government of India. Mr. Viswanatha Sastri learned
Counsel for the appellant-petitioner contended
that on the terms and conditions contained in this
agreement, Pondicherry was a part of the territory
of India. On the other hand, Mr. Chari-learned
Counsel for the respondents urged that the
reservations contained in the agreement were such
as to preclude the Court from reaching the
conclusion
990
that there had been a transfer of complete
sovereignty, which according to him was necessary
in order to constitute the area as part of the
territory of India. The learned Solicitor-General
who appeared in response to the notice to the
Union of India, submitted that the Union
Government was agreeable to the respective
contentions urged by the parties being decided by
the Court.
We have considered the matter urged before us
with great care and desire to make the following
observations: So far as the Constitution of Indian
is concerned, we have an express definition of
what the phrase “territory of India” means. Art. 1
(3) enacts:
“1. (3) The territory of India shall
compromise-
(a) the territories of the States;
(b) the Union territories specified in the
First Schedule; and
(c) such other territories as may be
acquired.”
There might be little difficulty about locating
the territories which are set out in cls. (a) &
(b) but when one comes to (c) the question arises
as to when a territory is “acquired” and what
constitutes “acquisition”. Having regard to the
subject dealt with, the expression “acquired”
should be taken to be a reference to “acquisition”
as understood in Public International Law. If
there were any public notification assertion or
declaration by which the Government of this
country had declared or treated a territory as
part and parcel of the territory of India, the
Courts would be bound to recognise an
“acquisition” as having taken place, with the
consequence that that territory would be part of
the territory of the Union within Art.1(3)(c). In
the present case, we have this feature that the
administration of the territory is being conducted
under the powers vested in the Government under
the Foreign Jurisdiction Act. The preamble to that
Act recites that it was:
991
“An Act to provide for the exercise of
certain foreign jurisdiction of the Central
Government”.
and accordingly the expression “foreign
jurisdiction” is defined in its s. 2(a) to mean
“the jurisdiction which the Central Government has
for the time being in or in relation to any
territory outside India.” Thus this would prima
facie show that Pondicherry has not been
“acquired” but still continues to be outside the
territory of India. In our opinion, however,
though this might be very strong evidence that the
territory has not been “acquired” and so not part
of the “territory of India”, it is still not
conclusive. In this state of circumstances two
courses would be open to us: (1) to decide for
ourselves on the material that has been placed
before us in the shape of the agreement between
the two Governments etc. Whether Pondicherry has
been “acquired” so as to become part of the
territory of India, or (2) to invoke the
assistance of the Government of India by inviting
them to state whether the territory has been
acquired within Art. 1(3) of the Constitution and
whether Pondicherry is thus now part of the
“territory of India”. We originally proposed to
avail ourselves only of the procedure indicated in
s.6 of the Foreign Jurisdiction Act 1947 which
enacts:
“6. (1) If in any proceeding, civil or
criminal, in a Court established in India or
by the authority of the Central Government
outside India, any question arises as to the
existence or extent of any foreign
jurisdiction of the Central Government, the
Secretary to the Government of India in the
appropriate department shall, on the
application of the Court,’ send to the Court
the decision of the Central Government on the
question, and that decision shall for the
purposes of the proceeding be final.
992
(2) The Court shall send to the said
Secretary in a document under the seal of the
Court or signed by a Judge of the Court,
questions framed so as properly to raise the
question, and sufficient answers to those
questions shall be returned to the Court by
the Secretary and those answers shall on
production thereof be conclusive evidence of
the matters therein contained.”
But the learned Solicitor-General very properly
pointed out that an answer to the question which
could be referred under this provision would
relate merely to “the existence or extent of
jurisdiction” and that information on these points
might not be sufficient to solve the problem posed
by the preliminary question raised in the appeals
and petitions as to whether Pondicherry is a part
of the “territory of India” or not. We agree with
the learned Solicitor-General that information
relating to the “existence or extent” of the
jurisdiction exercisable by the Union Government
in the territory might not completely solve the
question for our decision as to whether
Pondicherry is part of the territory of India or
not, but still if the extent of the jurisdiction
vested in the Union Government by the arrangements
entered into between the two Governments virtually
amounts to a transfer of sovereignty for every
practical purpose, it would be possible to contend
that such a transfer or cession was so
incompatible with the existence of any practical
sovereignty in the French Government as to detract
from the surrender or transfer being other than
complete. It is for this reason that we consider
it proper to exercise the powers vested in the
Court under s. 6 of the Foreign Jurisdiction Act.
It would be observed from what has been
stated above that it would be more satisfactory
and more useful for the disposal of the
proceedings
993
before us if we ascertain from the Union
Government an answer to the question whether they
do or do not consider that Pondicherry is part of
the territory of India. We have only to add that
on the decisions in England, the Court has
jurisdiction to invite the Government to assist it
by information as to whether according to
Government any territory was part of Her Majesty’s
Dominion or not (vide The Fagernes L. R. 1927
Probate 311). Besides, the learned Solicitor-
General agreed that the Government would assist us
by answering our reference. In view of the matters
set out above we direct that the following
questions shall be forwarded to the Union of India
under the seal of this Court for the submission of
their answers:
(1) Whether Pondicherry which was a former
French Settlement is or is not at present
comprised within the territory of India as
specified in Art. 1(3) of the Constitution by
virtue of the Articles of the Merger Agreement
dated October 21, 1954 between the Governments of
India and France and other relevant agreements,
arrangements, acts and conduct of the two
Governments.
(2) If the answer to Question 1 is that
Pondicherry is not within the territory of India,
what is the extent of the jurisdiction exercised
by the Union Government over the said territory
and whether it extends to making all and every
arrangement for its civil administration, its
defence and in regard to its foreign affairs. The
Government of India might also state the extent of
jurisdiction which France possesses over the area
and which operates as a diminution of the
jurisdiction ceded to or enjoyed by the Government
of India.
On the receipt of the answers to these
questions the appeals will be posted for further
hearing.
SARKAR J.-Four matters came up for hearing
together. Two of these are appeals brought with
leave
994
granted by this Court and two are petitions under
Art. 32 of the Constitution. One appeal and one
petition are by one party and the other appeal and
petition are by another. The appeal and the
petition by each party challenge an order made by
the Chief Commissioner of Pondicherry under the
Motor Vehicles Act, 1939. Each of the two orders
challenged was made on applications for the grant
of bus permits. By one of the orders a permit for
a certain route had been given to a person other
than one of the parties who has moved us, in
preference to him. By the other order, similarly,
the claim of the other party moving us to a permit
for a different route was rejected. All the
matters raise substantially the same question
concerning the validity of the Chief
Commissioner’s orders.
Now, Pondicherry was earlier a French
possession administered by the Government of
France. By an agreement between the Governments of
India and France, the administration of
Pondicherry was transferred to the Government of
India as from November 1, 1954. The Government of
India had been exercising power in Pondicherry
since, under the Foreign Jurisdiction Act, 1947.
The Chief Commissioner of Pondicherry is an
officer of the Government of India appointed under
the powers derived as a result of the agreement.
With regard to the appeals, question arose at
the hearing before us as to whether they were
competent. The appeals had been filed with leave
granted under Art. 136 of the Constitution. It was
said that the appeals were incompetent because
Pondicherry was outside the Indian territories and
under Art. 136 no appeal from any court outside
such territories lay to this Court. It was,
however, contended on behalf of the appellants
that since the Indo-French agreement or very soon
thereafter, Pondicherry became part of the Indian
territories as a territory acquired by India and,
therefore the appeals who
995
competent. As the most satisfactory way of
deciding the question whether Pondicherry is
within India or not is to seek information from
the Government on the point, the majority of the
members of the bench are of opinion that the
Government of India should be approached to
enlighten us about it. The learned Solicitor
General, appearing for the Government, has not
objected to this procedure being adopted.
With regard to the Petitions under Art. 32,
it was contended that the Chief Commissioner of
Pondicherry was a State within the meaning of Art.
12 of the Constitution as under that article any
authority under the control of the Government of
India outside the territory of India was a State
for the purpose of Part III of the Constitution.
On this basis it was contended on behalf of the
petitioners that the petitions under Art. 32
asking for certain writs to quash the orders of
the Chief Commissioner of Pondicherry were also
competent. A further question then arises as to
whether in view of Art. 142 of the Constitution
the writs, if issued, could be enforced against an
authority under the control of Government of India
at Pondicherry, if Pondicherry was outside India
and if they could not, whether the Court should
issue the writs as it would only be stultifying
itself by doing so.
It seems to us that it is unnecessary to
decide these questions at this stage, for we are
going to ask the Government to inform us whether
Pondicherry was at the relevant time part of
Indian territories. If the Government inform us
that Pondicherry was part of India, then no
question would arise concerning the powers or
jurisdiction of this court in any of the matters
now before us. If the information from the
Government is that Pondicherry is not within the
territories of India, that will, in our opinion,
be the
996
proper time to consider whether the Court can
still give the petitioners the relief which they
ask.
These cases involve other questions of
difficulty and importance on which it would be
proper, in our view, to make a pronouncement after
the Government of India’s answer to our request is
received. As to none of these are indeed any
question arising in these cases we express any
opinion at this stage. We wish, however, to
observe now that it seems to us exceedingly
strange that if this Court finds that a party’s
fundamental right has been violated, from which it
would follow that that party has a right to move
this Court under Art. 32 and to obtain the
necessary writ, this Court could refuse to issue
it for the reason that it would thereby be
stultifying itself. If a party is entitled to a
writ under Art. 32, then we are not aware that
there is any discretion in the Court to refuse the
writ on the ground that the writ cannot be
enforced. Even assuming that in view of Art. 142
of the Constitution, a writ cannot be enforced
outside India-as to which we pronounce no opinion
now-might is not be said with justification that
it is not necessary for us to be unduly pressed by
considerations of the difficulties of the
enforcement of the writ and that if would be
reasonable for us to think that the Government of
India has sufficient respect for this Court to do
all that is in its power to give effect to this
Court’s order, whether or not there might be
technical difficulties in the way of its
enforcement by this Court. In view of these
doubts, we are unable, as at present advised, to
concur in the opinion expressed in the Judgment of
the majority of the learned Judges constituting
the Bench that Art. 142 stands in the way of this
Court issuing a writ under Art. 32 in this case.
We would reserve our opinion till a later stage
and till it becomes necessary to express any
opinion at all.
997
BY COURT : We direct that the two questions
set out in the majority judgment be forwarded to
the Union of India under the seal of this Court
for submission of their answers.
On receipt of the answers to the questions
the appeals will be posted for further hearing.
The Judgment of Gajendragadkar, Wanchoo and
Ayyangar, JJ., was delivered by Ayyangar J. The
Judgment of Sarkar and Das Gupta, JJ., was
delivered by Sarkar J.
AYYANGAR, J.-In compliance with our
directions the two questions were forwarded to the
Union Government and they submitted their answers
to them in the following terms:
“Question No. (1)-Whether Pondicherry
which was a former French Settlement is or is
not at present comprised within the territory
India as specified in Article 1(3) of the
Constitution by virtue of the Articles of the
Merger Agreement dated October 21, 1954
between the Governments of India and France
and other relevant agreements arrangements,
acts and conduct of the two Governments.
Answer-The French Settlement (Establishment)
of Pondicherry is at present not comprised within
the territory of India as specified in clause (3)
of Article 1 of the Constitution by virtue of the
Agreement dated the 21st October, 1954, made
between the Government of France and the
Government of India or by any other agreement or
arrangement. By the aforesaid Agreement, dated the
21st October, 1954, the Government of France
transferred, and the Government of India took
over, administration of the territory of all the
French Establishments in India, including
Pondicherry, with effect from the 1st November,
1954. A copy of the Agreement is enclosed. This is
expressed to be a de facto transfer and was
intended to be
998
followed up by a de jure transfer. A treaty of
Cession providing for de jure transfer has been
signed by the Government of France and the
Government of India on the 28th May, 1956, but has
not been so far ratified in accordance with the
French Law as well as in accordance with the
article 31 of the Treaty. A copy of the Treaty is
also enclosed. The Government of India has been
administering Pondicherry under the Foreign
Jurisdiction Act, 1947, on the basis that it is
outside India and does not form part of the
territory of India.
Question No.(2)-If the answer to
question 1 is that Pondicherry is not within
the territory of India, what is the extent of
the jurisdiction exercised by the Union
Government over the said territory and
whether it extends to making all and every
arrangement for its civil administration, its
defence and in regard to its foreign affairs.
The Government of India might also state the
extent of jurisdiction which France possesses
over the area and which operates as a
diminution of the jurisdiction ceded to or
enjoyed by the Government of India.
Answer-The Government of India has been
exercising full jurisdiction over Pondicherry in
executive, legislative and judicial matters in
accordance with Foreign Jurisdiction Act. 1947. In
doing so it has followed the aforesaid Agreement.
The Government of France has not also exercised
any executive, legislative or judicial authority
since the said Agreement.
The jurisdiction of the Government of India
over Pondicherry extends to making all
arrangements for its civil administration. The
administration of the territory is being carried
on under the Foreign Jurisdiction Act. 1947, and
in accordance with the French Establishments
(Administration) Order, 1954,
999
and other Orders made under sections 3 and 4 of
that Act. The Government of India have been aiming
at conducting the administration of Pondicherry so
as to conform to the pattern of administration
obtaining to in India consistent with the said
Agreement. Accordingly a large number of Acts in
force in India have already been extended to
Pondicherry.
The Government of India hold the view that
the sole responsibility in regard to arrangements
for the defence of Pondicherry devolves on
themselves.
Pondicherry has no foreign relations of its
own. No claims have been made by the Government of
France in this matter nor have the Government of
India recognized the existence of any such claim.
The Government of France do not possess any
de facto jurisdiction over Pondicherry which would
imply any diminution of the jurisdiction exercised
by the Government of India.”
The appeals and the writ petitions were
thereafter posted for further hearing before us on
October 9, 1961.
Mr. N. C. Chatterji-learned Counsel for Shri
Masthan Sahib, appellant in Civil Appeal No. 42 of
1961 and petitioner in writ petition No. 297 of
1960, urged before us two contentions. The first
was that the answer to the second question clearly
established that the French establishments
including Pondicherry were part of the territory
of India, having been acquired by the Union
Government within the meaning of Art. 1(3)(c) and
that in view of this position it was not necessary
to consider nor proper for us to accept the views
expressed by the Union Government in their answer
to the first question wherein they had expressly
stated that they did not consider the French
“establishments” covered by the agreement between
the Union Government and the Government of France
dated October 21, 1954 as being within the
territory of India within
1000
Art.1(3) of the Constitution of India. Secondly, a
point which was necessarily involved in the first
one just set out-that this Court was not bound by
the statement of the Government of India in its
answer to Question No. 1 and that it should
disregard such an answer and investigate for
itself on the materials placed before it as to
whether Pondicherry was part of the territory of
India or not.
In support of the first submission Mr.
Chatterji placed considerable reliance on the
passage in our judgment rendered on April 28, 1961
reading:
“Still if the extent of the jurisdiction
vested in the Union Government by the
arrangements entered into between the two
Governments virtually amounts to a transfer
of sovereignty for every practical purpose,
it would be possible to contend that such a
transfer or cession was so incompatible with
the existence of any practical sovereignty in
the French Government as to detract from the
surrender or transfer being other than
complete.”
The argument was that the answer to the
second question showed (1) positively that the
Government of India exercised complete
jurisdiction over the territory-executive,
legislative and judicial, its authority being
plenary and extending to the making of laws. Their
execution and the administration of justice with
complete power over its defence and foreign
affairs and (2) negatively that the Government of
France possessed no authority in the territory, so
much so that it could not be predicated that there
had been any retention of even a vestigial
sovereignty to detract from the completeness of
the transfer. In the circumstances, learned
Counsel urged that he was justified in inviting us
to ignore or disregard the answer to the first
question and instead answer the question as to
whether these French establishments were within
the territory of India or not on the basis of the
second question.
1001
Having regard to the nature of this argument
it is necessary to state briefly the circumstances
in which we felt it necessary to frame the two
questions that we did. At the stage of the hearing
of the petitions on the first occasion, notice was
issued to the Union Government and the learned
Solicitor General appearing in response to the
notice did not convey to us any definite views on
the part of the Government as to whether
Pondicherry was or was not considered by them to
be part of the territory of India but invited the
Court to decide the question on the materials that
might be placed the parties before us. At that
stage therefore we were not quite certain whether
Government would be prepared to make a formal
statement about their views on this question. If
therefore the Government were inclined still to
leave the matter to the Court, we desired to have
complete information as to the factual position
regarding the government of the territory. It was
in view of that possibility that Question No. 2
was framed. It was, of course, possible that
Government might communicate their views to the
Court and with a view to enable this to be done we
framed Question No. 1. In these circumstances
nothing is gained by reference to the passage in
our judgment dated April 28, 1961. The passage
extracted is certainly not an authority for the
position as to whether if Question No. 1 was
answered, the Court could properly consider any
implications or inferences arising on the answer
to Question No. 2.
We shall therefore proceed to consider the
principal question that arises at this stage,
viz., whether the answer of the Government is
reply to a specific and formal enquiry by the
Court that it did not consider a particular area
to have been “acquired” by the Indian Government
and therefore not a part of the territory of India
was binding on the Court or not. A number of
decisions of the English and Australian Courts in
which the point
1002
has been considered were placed before us and we
shall proceed to refer to the more important of
them.
In Duff Development Company v. Government of
Kelantan(1) the question related as to whether the
Sultan of Kelantan was the ruler of an independent
sovereign State, such that the Courts in England
had no jurisdiction over the Sultan or the
Government of that State. The Secretary of State
for the Colonies who was requested by the Court to
furnish information as regards the status of the
ruler and of the Government stated that the Sultan
was the head of an independent sovereign state.
The binding character of this statement was
however questioned and it was argued before the
House of Lords on foot of certain public documents
that Kelantan was merely a dependency of the
British Government and not a sovereign State. On
the other side; it was pressed upon the House,
that the statement of the Secretary of State was
binding and this latter submission was unanimously
accepted by the House. In doing so Viscount Cave
observed:
“If after this definite statement a
different view were taken by a British Court,
an undesirable conflict might arise; and in
my opinion it is the duty of the Court to
accept the statement of the Secretary of
State thus clearly and positively made as
conclusive upon the point.”
Viscount Finlay expressed himself thus:
“It has long been settled that on any
question of the status of any foreign power
course is that the Court should apply to His
Majesty’s Government, and that in any such
matter it is bound to act on the information
given to them through the proper department.
Such information is not in the nature of
1003
evidence; it is a statement by the Sovereign
of this country through one of his Ministers
upon a matter which is peculiarly within his
cognizance.”
Lord Sumner said:
“Where such a statement is forthcoming
no other evidence is admissible or needed.”
There is one other decision of the House of Lord
to which reference may usefully be made-Government
of the Republic of Spain v. Arantzazu, Mendi.(1)
The question for decision was whether it was
General Franco’s Government that was the
Government in Spain or the Republican Government.
The Secretary of State for Foreign Affairs had, in
a formal communication to the Court in reply to a
letter forwarded under the direction of Bucknill
J., stated that His Majesty’s Government had
recognised the Nationalist Government as the
Government which had administrative control over a
large portion of Spain and particularly over the
Basque Provinces wherein the ship, title to which
was in question, had been registered. Lord Wright
in his speech said:
“The Court is, in my opinion, bound without
any qualification by the statement of the
Foreign office, which is the organ of His
Majesty’s Government for this purpose in a
matter of this nature. Such a statement is a
statement of fact, the contents of which are
not open to be discussed by the Court on
grounds of law.”
No doubt, these decisions were in relation to
the status of or recognition by the Government of
foreign sovereign and are therefore not ad idem
with the point which now arises for consideration
viz., whether a particular piece of territory is
or is not part of the territory of India. A
statement by Government in relation to a similar
question
1004
came up before the Court of Appeal in Fagernes (1)
The question for the Court’s consideration was
whether the Bristol Channel, particularly at the
point where a collision was stated to have taken
place, was or was not part of British territory.
Hill J. before whom an action for damage caused by
the alleged collision came up held that the waters
of the Bristol Channel were part of British
territory and therefore within the jurisdiction of
the High Court. The defendants appealed to the
Court of Appeal and at that stage the Attorney-
General appeared and in response to a formal
enquiry by the Court as to whether the place where
the collision was stated to have occurred was
within the realm of England, replied that “the
spot where the collision is alleged to have
occurred is not within the limits to which the
territorial sovereignty of His Majesty extends.”
On the basis of this statement the Court of Appeal
unanimously reversed the judgment of Hill J. An
argument was raised before the Court as regards
the binding character of the statement by the
Attorney-General and in regard to this Akin L.J.
said:
“I consider that statement binds the Court,
and constrains it to decide that this portion
of the Bristol Channel is not within British
jurisdiction, and that the appeal must be
allowed. I think that it is desirable to make
it clear that this is not a decision on a
point of law, and that no responsibility
rests upon this Court save that of treating
the statement of the Crown by its proper
officer as conclusive.”
Lawrence L.J. observed:
“It is the duty of the Court to take judicial
cognizance of the extent of the King’s
territory and, if the Court itself is
unacquainted with the fact whether a
particular place is or is not within the
King’s territory, the Court is entitled to
inform itself of that fact by making
1005
such inquiry as, it considers proper. As it
is highly expedient, if not essential, that
in a matter of this kind the Courts, of the
King should act in unison with the Government
of the King, this Court invited the Attorney
General to attend at the hearing of the
appeal and at the conclusion of the arguments
asked him whether the Crown claimed that the
spot where the collision occurred was within
the territory of the King. The Attorney-
General in answer to this inquiry, stated
that he had communicated with the Secretary
of State for Home Affairs, who had instructed
him to inform the Court that “the spot where
this collision is alleged to have occurred is
not within the limits to which the
territorial sovereignty of His Majesty
extends.” In view of this answer, given with
the authority of the Home Secretary upon a
matter which is peculiarly within the
cognizance of the Home office, this Court
could not, in my opinion, properly do
otherwise than hold that the alleged tort was
not committed within the jurisdiction of the
High Court”.
Bankes L.J., though he agreed with his colleagues
in allowing the appeal, however struck a slightly
different note saying:
“This information was given at the instance
of the Court, and for the information of the
Court. Given under such circumstances, and on
such a subject, it does not in my opinion
necessarily bind the Court in the sense that
it is under an obligation to accept it”
The entire matter is thus summarised in
Halsbury’s Laws of England, Third Edition, Volume
7:
“There is a class of facts which are
conveniently termed ‘facts of state’. It
consists of matters and questions the
determination of which is solely in the hands
of the Crown or
1006
the government, of which the following are
examples:
(1) ………………………………….
…….
(2) Whether a particular territory is
hostile or foreign, or within the
boundaries of a particular state.”
Mr. Chatterji, however, invited our attention to
certain observations contained in two decisions of
the High Court of Australia-Jolley v. Mainka and
Frost v. Stevenson (2).In both these cases the
point involved was as to the status of the
territory of New Guinea which Australia was
administering as mandatory territory under a
mandate from the League of Nations. There are, no
doubt, observations in these cases dealing with
the meaning of the word ‘acquired’ in s. 122 of
the Commonwealth of Australia Act, but the point
to be noticed however is that there was no
statement by the Government of the Commonwealth of
Australia as to whether this area was or was not
part of the territory of Australia, such as we
have in the present case. We do not, therefore,
consider that these observations afford us any
assistance for the solution of the question before
us.
Both Mr. Chatterji and Mr. Viswanatha Sastri
learned Counsel who appeared for Sivarama Reddiar,
the appellant and petitioner in the other cases,
stressed the fact that what we were called upon to
decide was the meaning of the expression
‘acquired’ in Art. 1 (3) (c) of the Constitution
and that in the case of a written constitution
such as we had to construe, jurisdiction of this
Court was not to be cut down and the enquiry by it
limited by reasons of principles accepted in other
jurisdictions. In particular, learned Counsel
stressed the fact that it would not be
1007
proper for the Court to ignore patent facts and
hold itself bound by the statement of Government
in cases where, for instance, the Government of
the day for reasons of its own desiring to exclude
the jurisdiction of this Court denied that a part
of territory which patently was within Art. 1(3)
was within it. It is not necessary for us to
examine what the position would be in the
contingency visualized, but assuredly it is not
suggested that the case before us falls within
that category. The proposition laid down in the
English decisions that a conflict is not to be
envisaged between the Executive Government and the
judiciary appears to us to rest on sound reasoning
and except possibly in the extreme cases referred
to by the learned Counsel, the statement of the
Government must be held binding on the Court and
to be given effect to by it.
There is one other matter which was specially
pressed upon us during the course of argument to
which is necessary to refer. The submission was
that the answer by the Union Government to the two
questions were really contradictory and that
whereas the answer to the second question made it
out that the French establishments had been
acquired and were part of the territory of India,
the Government had in relation to the first
question made a contradictory answer. We do not
consider this argument well-founded. In cases
where the only fact available is the de facto
exercise of complete sovereignty by one State in a
particular area, the sovereignty of that State
over that area and the area being regarded as part
of the territory of that State would prima facie
follow. But this would apply normally only to
cases where sovereignty and control was exercised
by unilateral action. Where however the exercise
of power and authority and the right to administer
is referable to an agreement between two States,
the question whether the territory has become
integrated with and become part
1008
of the territory of the State exercising de facts
control depends wholly on the terms upon which the
new Government was invited or permitted to
exercise such control and authority. If the
instruments evidencing such agreements negatived
the implication arising from the factual exercise
of Governmental authority then it would not follow
that there is an integration of the territory with
that of the administering power and that is
precisely what has happened in the present case.
As annexures to their reply the Union Government
have included The Treaty of Cession dated May 28,
1956, which is a sequel to the agreement dated
October 21, 1954, transferring the powers of the
Government of the French Republic to the
Government of the Indian Union. Under the terms,
this Treaty would become operative and full
sovereignty as regards the territory of the
establishments of Pondicherry, Karikal, Maha and
Yanam would be ceded to the Indian Government only
when the treaty comes into force. It is not
necessary to refer to all the clauses of this
Treaty except the one which stipulates that it
would come into force on the day of ratification
by the two Governments concerned. According to the
Constitution of France an Act of the France
Assembly is required for the validity of a Treaty
relating to or involving the cession of French
territory. It is common ground that the Treaty has
not been ratified yet. The resulting position
therefore is that by the agreement dated October
21,1954, though complete administrative control
has been transferred to the Government of India,
this transfer of control cannot be equated to a
transfer of territory, that being the common
intention of the parties to that agreement. Unless
a ratification takes place there would legally be
no transfer of territory and without a transfer of
territory there would not be in the circumstances
an “acquisition of territory”, with the
consequence that at present Pondicherry has to be
treated as not part
1009
of the territory of India. It is unnecessary to
consider what the position would have been if the
Union Government had, notwithstanding the terms of
the Treaty, treated the former French
establishments as having become part of the
territory of India.
There was one minor submission made by Mr.
Viswanatha Sastri to which a passing reference
may be made. He suggested that the term “territory
of India” in Art. 142 might not represent the same
concept as ‘the territory of India’ within Art.
1(3) and that in the context of Art. 142 the term
‘territory of India might include every territory
over which the Government of the Union exercised
de facto control. We are not impressed by this
argument. The term ‘territory of India’ has been
used in several Articles of the Constitution and
we are clearly of the opinion that in every
Article where this phraseology is employed it
means the territory of India for the time being as
falls within Art. 1(3) and that the phrase cannot
mean different territories in different Articles.
We have already dealt with the question as to
what the effect on the maintainability of the
appeals and the petitions would be if Pondicherry
were not part of the territory of India. In view
of Pondicherry not being within the territory of
India we hold that this Court has no jurisdiction
to entertain the appeals. The appeals therefore
fail and are dismissed. The writ Petitions must
also fail and be dismissed for the reason that
having regard to the nature of the relief sought
and the authority against whose orders relief is
claimed they too must fail. They are also
dismissed. We would add that these dismissals
would not include the petitioners from approaching
this Court if so desired, in the event of
Pondicherry becoming part of the territory of
India. In the peculiar circumstances of this case
we direct that that the parties bear their
respective costs.
1010
Before leaving this case, we desire to point
out that the situation created by the French
establishments not being part of the territory of
India is somewhat anomalous. Thier administration
is being conducted by the extension of enactments
in India by virtue of the power conferred by the
Foreign Jurisdiction Act. We have had occasion to
point out that though technically the areas are
not part of Indian territory, they are governed
practically as part of India. But so far as the
orders of the courts and other authorities-
judicial and quasi-judicial within that area are
concerned, the Superior Courts in India have not,
subject to what we have stated as regards the
limited jurisdiction of the court, any appellate
or revisional jurisdiction over them and this
might in a large number of cases lead to injustice
and a sense of grievance. There is enough power in
Government even at the stage of the de facto
transfer to remedy the situation. By appropriate
action under the Foreign Jurisdiction Act, or by
Parliamentary Legislation under the entry ‘Foreign
Jurisdiction’ the appellate Jurisdiction of the
High Court or of this Court could be enlarged
under Arts. 225 and 138 [1] respectively so as to
afford an adequate remedy for the inhabitants of
these areas. To this aspect of the matter we
consider that the attention of Government should
be drawn.
SARKAR, J.-On the earlier occasion when these
cases came up before this Court, we postponed
further hearing of them till we received the
answers of the Government of India to two
questions which we then referred to it. These
questions substantially were, (a) whether
Pondicherry is or is not within the territories of
India and (b) if it is not, the extent of the
jurisdiction exercised by the Union Government
over it and the jurisdiction which France still
possesses in regard to it. These questions were
put because considerable doubt was felt as to the
real status of Pondicherry. If it
1011
was a foreign territory, no appeal could lie to
this Court under Art. 136 of the Constitution from
any tribunal in Pondicherry and two of these
matters were such appeals. The other two matters
were petitions asking for writs against certain
authorities in Pondicherry and the majority held
that no writ could issue to a foreign territory in
view of Art. 142 of the Constitution and therefore
for the purposes of these petitions also it was
necessary to ascertain the status of pondicherry.
We however then felt some difficulty about the
question whether we could refuse to issue writs to
an officer of the Government of India outside the
territory of India and expressed our inability to
concur in the opinion of the majority. We said
that the proper time to discuss that question
would be when on receipt of the Government’s
answers to our questions, it had to be held that
Pondicherry was a foreign territory and reserved
our final decision on the question till then.
The Government’s answers to our questions
have now been received. On the basis of these
answers, for the reasons hereafter mentioned, it
has to be held that Pondicherry is a foreign
territory. We, therefore, now wish to say a few
words on the question on which we reserved our
opinion on the former occasion. The opinion of the
majority no doubt prevails in spite of what we
shall say. Before we discuss the question which we
reserved we desire to observe in regard to the
appeals that it must be held that they are not
maintainable as Pondicherry is a foreign
territory.
Now, the writs are sought to quash the orders
of a quasi-judicial authority functioning in
Pondicherry on the ground that they violate
certain fundamental rights of the petitioners This
authority however is an officer of the Government
of India. How far writs can be issued under Art.
32 of the Constitution of India to quash a quasi-
judicial order even if made in India, itself a
1012
question of considerable difficulty on which there
has been a difference of opinion in this Court.
That question was recently discussed before
another Bench but the judgment in that case has
not yet been delivered. For the present purpose
however we will assume that writs can be issued
under Art. 32 to quash a quasi-judicial order.
The First observation that we wish to make is
that it has now been finally held by this Court,
dealing with an application under Art. 32 that
“the right to move this Court by appropriate
proceedings for the enforcement of the rights
conferred by Part III of the Constitution is
itself a guaranteed right”: Kavalannara
Kottarthill Kochunni v. The State of Madras. (1) A
right to move this Court by a petition under Art.
32 is, therefore, a fundamental right. That being
so, a right to obtain a writ when the petition
establishes a case for it, must equally be a
fundamental right. For, it would be idle to give a
fundamental right to move this Court and not a
similar right to the writ the issue of which the
petition might clearly justify. If then a
fundamental right to a writ is established,-and
that is the assumption on which we are examining
the present question-the party who establishes
such right must be entitled ex debito justitiae to
the issue of the necessary writ. There would then
be no power in the Court to refuse in its
discretion to issue it.
But it is said that if a writ was issued in
the present case, it could not in view of Art. 142
which says that an order of this Court shall be
enforced throughout the territory of India, be
enforced Pondicherry. Let us assume that is so.
Then it is said that if the Court were to issue
the writ it would only be stultifying itself and
should not therefore issue it. We are unable to
accede to this contention. If a party has been
given by the
1013
Constitution a fundamental right to a writ, there
is no power in the Court to refuse that right.
Supposed practical considerations of incapacity to
in force the writ issued cannot be allowed to
defeat the provisions of the Constitution.
No authority has been cited to us in support
of the proposition that when a party in entitled
as of right to an order, a court can refuse to
make that order on the ground that it would
thereby be stultifying itself. So far as we have
been able to ascertain orders are refused on this
ground when the matter is one for the discretion
of the Court. Such cases have, for instance,
frequently occurred in proceedings relating to the
issue of injunctions, to grant or not to grant
which is well known, in the discretion of the
Court. The discretion has no doubt to be
judicially exercised as indeed all discretions
have, but none the less the right to the relief is
in the discretion of the Court as opposed to a
relief to which a party is entitled ex debito
justitiae, a distinction which is well understood.
Thus, dealing with a case of the issue of an
injunction restraining a person from. proceeding
with an action in a foreign court, Jessel M.R.
Observed, in In re International Pulp and Paper
Co. Ltd.(1), “Therefore, as to a purely foreign
country, it is of no use asking for an order,
because the order cannot be enforced”. Take
another case. In England an information in the
nature of quo warranto is not issued as a matter
of course as a matter of course [R.V. Stacey
(1785) I.T.B 1] and therefore the courts there
refused to issue it when in information would be
futile in its results. Halsbary Laws of England
(3rd ed.) Vol. 11 p. 148. So in Reg. v Fox(2) the
Court refused to issue the information for the
reason that the person sought to be removed by it
could be reappointed at once. These however are
cases in which a Court would be inclined not to
make
1014
a discretionary order on the ground that the Court
would thereby be stultifying itself. Instances
might be multiplied but it is unnecessary to do
so. We do not think that the principle of these
cases can be applied where a court has no option
but to make the order which we think is the
present case. It would clearly be less applicable
to a case like the present where, as we shall
immediately show, it would be wrong to think that
the order would not be carried out.
Lastly, can we be certain that the Court
would be stultifying itself by issuing the writ in
this case ? That would be only if our order is
sure to be ignored. We think that this Court would
be fully justified in proceeding on the basis that
any order made by it would be carried out by any
officer of the Government of India to whom it is
directed wherever he may be, out of respect for
the Constitution and this Court and this without
requiring to be forced to do so. In this
connection the case of R.v. Speyer, R. v.
Cassel(1) is of interest. There Speyer and Cassel
had been called upon by the court by rules nisi to
show cause why an information in the nature of quo
warranto should not be exhibited against them to
show by what authority they respectively claimed
to be members of His Majesty’s Privy Council for
Great Britain. Speyer and Cassel were naturalised
British subjects and the question was whether
under certain statutes they were not disqualified
from being appointed to the Privy Council. One of
the arguments on behalf of the respondents was
that the court would be powerless to enforce a
judgment of ouster for it could not prevent the
immediate reinstatement of the names of these
persons in the roll of Privy Councillors if the
King though fit to alter it. The answer that
Reading C.J. gave to this argument was
1015
“Although it may be interesting and useful for the
purpose of testing the propositions now under
consideration to assume the difficulties suggested
by the Attorney-General, none of them would in
truth occur. This is the King’s Court; we sit here
to administer justice and to interpret the laws of
the realm in the King’s name. It is respectful and
proper to assume that once the law is declared by
a competent judicial authority it will be followed
by the Crown.” The other members of the Bench also
took the same view, Lush J. observing, “The
consequences he suggests are argumentative and not
real, and we cannot regard them as fettering the
exercise of our jurisdiction”. Now this was a case
of a discretionary order. Even so, the Court felt
that it would be wrong to stay its hand only on
the ground that it could not directly enforce its
order. This salutary principle has been acted upon
in our country by Das J. who later became the
Chief Justice of this Court, in In re Banwarilal
Roy(1) There Das J. issued an information in the
nature of quo warranto in spite of the fact that
he could not command the Governor of Bengal to
comply with his order which might therefore have
become futile. We think it is a very healthy
principle and should be followed. We do not think
that we can allow our powers for the protection of
fundamental rights to be fettered by
considerations of the enforcement of orders made
by us; we must assume that the authorities in
Pondicherry will willingly carry out our order.
We turn now to the other questions arising on
the Government’s answers. Pondicherry was
admittedly a French possession but under an
agreement with France, the Government of India is
now administering it. The Government has
definitely stated that Pondicherry is not
comprised
1016
within the territory of India. It has also said
that it has full jurisdiction over Pondicherry
under that agreement, that the liability for
defence of Pondicherry is on it and that
Pondicherry has no foreign relations. It has
further said that France does not possess any de
facto jurisdiction over Pondicherry which would
imply a diminution of the jurisdiction exercised
by it.
It was contended that we are not bound by the
Government’s answer to the first question, namely,
that Pondicherry is outside India and that on the
basis of the answer to the second question we
should hold, in spite of the Government’s view,
that Pondicherry is a part of Indian territory. It
was said that since India had admittedly full
jurisdiction over Pondicherry and France exercised
none, it must be held the India has acquired
sovereignty over it and that it had, therefore,
become Indian territory by acquisition. We are
entirely unable to accept this contention. We
think that we are bound by the Government’s
decision at least in a case where we have referred
to it for our guidance. That is the view taken in
England and it is a view which is based on sound
principle: see Duff Development Co. v. The Govt.
of Kelantan.(1) Any other view would create a
chaos and we cannot be a party to it. We may say
that by a treaty. as in the present case, India
may acquire full jurisdiction over a foreign
territory which under the same treaty may
nonetheless remain a foreign territory.
It was contended that this would be absolute
surrender to the executive Government; that such a
view would enable the Government when it so liked,
to disown a territory which was patently a part of
India so that it might act therein as it liked in
complete disregard of the laws and without any
check from any court including this Court. This
contention, to use the words of Luch J. in
Speyer’s case(2)is “argumentative and not real”.
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We cannot imagine that in a democracy any
Government would ever act in the way suggested and
we are sure no Government of this country will
ever do so.
Furthermore, the contention has no foundation
whatever and is wholly imaginary. It is the duty
of a court to take judicial notice of the extent
of the territory of its own State. Section 57 of
the Evidence Act requires that. Therefore, if the
fact is patent that a certain territory is within
India, the courts will take judicial notice of it
and there will be no occasion to refer to the
Government for any information regarding it. It
may however be that in certain circumstances the
fact is not patent but even then it appears that
it will be the duty of a court to take judicial
notice and it does so by requesting the Government
to enlighten it on the point. So Lawrence L. J.
said in Fagernes (1), “It is the duty of the Court
to take judicial cognisance of the extent of the
King’s territory and, if the Court itself is
unacquainted with the fact whether a particular
place is or is not within the King’s territory,
the Court is entitled to inform itself of that
fact by making such enquiry as it considers
necessary.” It is only in cases where the Court is
not aware of the facts that the question of
referring to the Government will arise and
therefore no occasion can possible arise where the
Government might have the chance of distorting a
patent fact.
This is all that we desire to say. As the
majority of the learned Judges of the Bench have
taken a different view, the order to be made will
follow their decision.
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