PETITIONER: K. S. RAMAMURTHI REDDIAR Vs. RESPONDENT: THE CHIEF COMMISSIONER,PONDICHERRY & ANR. DATE OF JUDGMENT: 22/01/1963 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS SHAH, J.C. CITATION: 1963 AIR 1464 1964 SCR (1) 656 CITATOR INFO : MV 1966 SC1089 (54) F 1967 SC1857 (6) RF 1975 SC1331 (180) ACT: Stage Carriage Permit-Grant to native of Pondicherry- Affirmed by Chief Commissioner as Appellate Authority-Dis- crimination on ground of place of birth-Jurisdiction of Supreme Court-"The State"--"Under the control of Government of India"-Meaning-Constitution of India, Arts. 12, 15, 32, 136. HEADNOTE: The petitioner, a resident of Pondicherry, was an applicant for a stage carriage permit,. before the State Transport authority pondicherry, alongwith 14 other persons. The Permit was granted to one Perumal Padayatchi taking into account the fact that he was a native of Pondicherry along with other facts. The petitioner, whose application for the permit was rejected, went in appeal to the Appellate Authority who dismissed the appeal . The petitioner filed a writ petition under Art. 32 in this Court and contended that preference on the ground of place of birth is violative of Art. 15 of the Constitution. On the dates of the orders sought to be impugned, Pondicherry was not yet part of the territory of India, but when the petition was heard it had become part of the territory of India. It was contended on behalf of the respondent that in view of the observations in the decision in N. Masthan Sahib v. Chief Commissioner, [1962] Supp. 1 S. C. R. 981, the writ petition was not maintainable. Held, that in Art. 12 the words "under the control of the Government of India" qualify the word "authorities" and not the word "territory" and Art. 12 gives an iaclusive definition of the word "State". Held, further, that if no writ could be issued at the time-. when the order was passed for the reason that Pondicherry was not part of India at that time, no such writ could be issued in respect of past acts after Pondicherry had become part of India 657 as that would be giving retrospective operation to the Constitution. Janardan Reddy v. The State, [1950] S.C. R. 940. referred to. Held, also, that judicial or quasi-judicial authorities out- side the territory of India but under the administration of the Government of India cannot be said to be 'under the control of the Government of India' as the expression "control" connotes power to issue directions regarding how a thing may be done by a superior authority to an inferior authority, and in the case of a quasi-judicial authority no such directions or orders could be issued. It is only in the case of executive action that a superior authority may direct that a particular thing may be done in a particular way by the subordinate authority. In the very nature of things where rule of law prevails it is not open to a Government, be it the Government of India or the Government of a State, to direct a quasi-judicial or judicial authority to decide Any particular matters before it in a particular manner. N. Masthan Sahib v. Chief Commissioner, [1962] Supp. 1 S. C. R. 981, referred to. Held, also, that the Chief Commissioner who is the Appellate Authority in the case, fell outside the definition of 'State', he being a quasi-judicial authority not under the control of the Government of India and, therefore, Art. 15 of the Constitution did not apply to him and no protection under Art. 15 was available against the Chief Commissioner at the time the impugned order was made. JUDGMENT:
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal No. 569
of 1961.
Appeal by special leave from the order dated September 9,
1960, of the Chief Commissioner, Pondicherry in Appeal No.
94 of 1960.
WITH
Writ Petition No. 347 of 1960.
Petition ‘tinder Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
658
N. C. Chatterjee, R. K. Garg and S. C. Agarwala for the
Appellant.
C. K. Daphtary, Solicitor-General of India, B. R. L.
Iyengar and R. N. Sachthey, for respondent No. 1 (in C. A.
No. 569/61).
R. Mahalinga Iyer, for respondent No. 2 (in C.A.569/61).
N. C. Chatterjee, R. K. Garg and S. C. Agarwala, for the
petitioner and the intervener.
C. K. Daphtary, Solicitor-General of India, B. R. L.
Iyengar and R. N. Sachthey, for respondent No. 1 (in W. I,.
No. 347/60).
R. Thiagarajan, for respondent No. 3 (in W. P. No.
347/60).
1963. January 22. The judgment of the Court was delivered
by
WANCHOO, J.–The appeal and the writ petition arise out of
the same order of the Chief Commissioner of Pondicherry
acting as the appellate authority under the Motor Vehicles
Act and will be dealt with together. The petitioner is one
of fourteen persons who had applied for a stage carriage
permit before the State Transport Authority, Pondicherry.
The petitioner’s application was rejected and the permit was
granted to Perumal Padayatchi, one of the respondents before
us. The State Transport Authority considered various
factors one of which was that Perumal Padayatchi was a
native of Pondicherry and taking all the factors into
account, the permit was granted to Perumal Padayatchi. The
petitioner went in appeal before the Appellate Authority,
who is the Chief Commissioner of Pondicherry. The Appellate
Authority dismissed
659
the appeal and observed that even if it were conceded. that
the claim% of the petitioner were more or less equal to
those of Perumal Padayatchi, the latter would be entitled to
preference on the ground that he is a native of Pondicherry.
We may. add that though 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 has been filed with special leave against this order.
‘I he petitioner has also filed the writ petition against
this order in which he raises, the same points.
The main contention urged on behalf of the petitioner is
that the order of the appellate Authority shows that
preference was granted to Perumal Padayatchi on the ground
that he was a native of Pondicherry (i. e. he was born in
Pondicherry), while the petitioner was merely a resident of
Pondicherry (i. e. he was born in Pondicherry). The
petitioner contends that such grant of preference on the
ground of place of birth is hit by Art. 15 of the
Constitution as the petitioner is a citizen of India, and
Art. 15 lays down that “the State shall not discriminate
against any citizen on grounds only of religion, race, case,
sex, place of birth or any of them”.
This contention of the petitioner is met on behalf of the
respondents in this way. The respondents submit that at the
relevant time, Pondicherry was not within the territory of
India and the Constitution did not apply to it. Therefore,
the petitioner would have no right to apply to this Court
for special leave under Art. 136 of the Constitution; nor
would the petitioner have a right to proceed by way of a
writ petition under Art. 32 against an order which was
passed by the Appellate Authority in Pondicherry at a time
when Pondicherry was not in the territory of India.
Reliance in this connection is placed on behalf of the
respondents on the decision of this
660
Court in N. Masthan Sahib v. Chief Commissioner,
Pondicherry(1)
The petitioner also relies on the same decision of this
Court. It is conceded on his behalf that in view of that
decision it was not open to the petitioner to apply to this
Court under Art. 136 and therefore the appeal may not 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 “‘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”. It
is therefore contended that even though Pondicherry was not
a part of India when the order under challenge was passed,
the Appellate Authority which passed the order was a “local
or other authority under the control of the Government of
India” 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 Masthan Sahib’s case (1), wag
decided, Pondicherry is now within the territory of India
since August 1962 and therefore this Court can now issue a
writ to the Appellate Authority if the order under
challenge, violates Art. 15 of the Constitution.
The respondents however contend that the fact that
Pondicherry is now within the territory of India makes no
difference in the application of the decision in Masthan
Sahib’s case (1). It is submitted that the reasons which
led the majority in that case to refuse to issue a writ
clearly imply (even if there is no actual decision in
express terms on the question now raised) that a judicial or
quasi-judicial authority cannot be said to be an authority
“under the control of the Government of India” within the
meaning of Art. 12, and therefore the. Appellate Authority
which was a quasi-,judicial authority was not under the
(1) [1962] Supp. 1 S.C.R. 981.
661
control of the Government of India and could not be amenable
to a writ under Art. 32 at the time when the order under
challenge was passed. Further as the Constitution is not
retrospective in operation the fact that Pondicherry since
August 1962 is part of the territory of India would not give
this Court jurisdiction to issue a writ now when it could
not issue a writ to the Appellate Authority in September,
1960, even reading Art. 32 along with Art. 12 of the
Constitution.
Before we come to consider the questions thus raised in the
writ petition, we may state that so far as the appeal is
concerned, it is concluded by the decision in Masthan
Sahib’s case (1). Article 136 gives power to this Court to
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. Admittedly, Pondicherry was not within the territory
of India when the order was passed and therefore Art. 136
would not apply to such an order. We have already indicated
that this position is conceded on behalf of the petitioner.
So far therefore as the appeal is concerned it must be
dismissed on the authority of Masthan Sahib’s case (1),
though in the circumstances we shall pass no order as to
costs.
Turning now to the writ petition, the main question that
falls for consideration is the effect of Art. 12 and whether
on a proper interpretation of that Article, the Appellate
Authority could in this case be said to be “‘a local or
other authority under the control of the Government of
India”. It is submitted on behalf of the respondents that
this matter is also concluded by the decision of the
majority in Masthan Sahib’s case (1), and that the effect of
that decision is that a judicial or a quasijudicial
authority would not be an authority “under the control of
the Government of India”.’ On the
(1) [1962] Supp. 1 S.C.R. 981.
662
other hand, the petitioner contends that there was no such
decision in that case as will appear from the concluding
portion of the judgment and therefore the question is open
for consideration before us.
As both parties rely on that decision we may quote the
relevant part thereof. Before we do so we may mention that
the decision in that case was in two parts, the first part
being delivered on April 28, 1961 and the final part on
December 8, 1961, though the report contains only the final
part. Relevant part of that decision which appears in the
first part delivered on April 28, 1961, is as below :–
“Learned counsel pointed out that for the
purpose of the exercise of this Court’s power
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 the power of this Court
under Art. 32 of the Constitution is not
circumscribed by any territorial limitations
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”.
Then after considering Arts. 142 and 144 of the Constitution
and pointing out that in view of the limitations imposed by
Art. 142 on the territory within which 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
663
other appropriate order 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 could issue. The majority judgment
observed as follows in answer to the question thus posed :-
“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 Dot
be directly enforced against the authority in
Pondicherry, the order would be ineffective
and that the Court will not stultify itself by
passing such an order.”
In the final order, however, at p. 1009 of the Report, the
majority observed as follows:-
“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 preclude the petitioners from
approaching this Court, if so desired in the
event of Pondicherry becoming part of the
territory of India”.
664
it is contended on behalf of the petitioner that the
majority decision in that case seems to imply that the
Appellate Authority was under the control of the Government
of India as otherwise it would not have been necessary to
put the two questions which were out to the Government of
India by the first part of the decision. Further it is
contended that the observations in the final part of the
judgment that the petitioners in that case were not
precluded from approaching this Court, if so desired, in the
event of Pondicherry becoming part of the territory of
India, also show that it was not held in that decision that
judicial or quasi-judicial authorities could not be under
the control of the Government of India. On the other hand,
it is contended on behalf of the respondents that judicial
or quasi-judicial authorities were not under the control of
the Government of India, for if they were a writ would have
been issued in that case in the same way as in the case of
an executive or administrative authority, i.e. a writ could
issue to 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”. We have carefully considered the
observations in the majority decision in this connection and
it must be held that that decision is not a direct authority
on the question that is now posed before us., for the point
was not then specifically raised; and expressly decided,
though as we will later point out, the implication of the
said decision is against the contention raised by the
petitioner. We have therefore to examine the contentions of
either party as to the exact scope and effect of the words
“‘all local or other authorities within the territory of
India or under the control of the Government of India”, as
if the question is res integra.
The first contention on behalf of the petitioner is that the
words “‘under the control of the Government
665
of India” in Art. 12 do not qualify the word “authorities”
therein but qualify the word “territory”. The petitioner
would therefore read the relevant words of Art. 12 like this
: “All local or other authorities within the territory of
India or all local or other authorities within the territory
under the control of the Government of India”. Thus,
according to the petitioner, all that is required is that
the territory even if it is not the territory of India,
should be under the control of the Government of India, and
if the territory is under the control of the Government of
India all, local or other authorities in such territory
would be included in the words “the State”. On the other
hand, the contention on behalf of the respondents is that
the words “under the control of the Government of India”
qualify the word “authorities” and not the word “territory”
in the relevant part of Art. 12 and that that part on its
true interpretation would read thus : “all local or other
authorities within the territory of India or all local or
other authorities under the control of the Government of
India”.
Having given our anxious consideration to this matter we are
of opinion that the interpretation put on the relevant words
on behalf of the respondents is the right one, both
gramatically and otherwise. Art. 12 gives an inclusive
definition of the words “the State” and within these words
of that Article are included, (i) the Government and Parlia-
ment of India, (ii) the Government and the legislature of
each of the States, and (iii) all local or other
authorities. These are the only authorities which are
included in the words “the State” in Art. 12 for the purpose
of Part III. Then follow the words which qualify the words
“all local or other authorities”. These local or other
authorities which are included within the words “‘the State”
of Art. 12 are of two kinds, namely, (i) those within the
territory of India, and (ii) those under the control of the
666
Government, of India. There are thus two qualifying clauses
to “all local or other authorities.” These clauses are :
(i)within the territory of India and (ii) under the control
of the Government of India. It would in our opinion be
gramatically wrong to read the words “under the control of
the Government of India” as qualifying the word territory”.
From the scheme of’ Art. 12 it is clear that three classes
of authorities are meant to be included in the words ‘,the
State”, there; and the third class is of two kinds and the
qualifying words which follow “all local or other
authorities” define the two types of such local or other
authorities as already indicated above. Further all local
or other authorities within the territory of India include
all authorities within the territory of India whether under
the control of the Government of India or the Governments of
various States and even autonomous authorities which may not
be under the control of the Government at all. In
contradistinction to this the second qualifying clause
refers only to such authorities as are under the control of
the Government of India and so the second qualifying clause
must govern the word “authorities”.’ Therefore, the
interpretation put forward on behalf of the respondents
seems to us to be correct both gramatically and otherwise.
“All local or other authorities” would thus be of two kinds,
namely, (i) those within the territory of India, and (ii)
those under the control of the Government of India. In the
latter case there is no qualification that they should be
within the territory of India. It is enough if they are
under the control of the Government of India wherever they
may be. We are therefore of opinion that no writ could
issue to the appellate authority at the time when the order
under challenge was passed, unless it could be called “other
authority under the control of the Government of India
Further,, there can be no doubt that if no writ could issue
to the Appellate Authority at the time the order was passed,
no writ could issue now after
667
Pondicherry has become part of the territory of India, for
that would be giving retrospective operation to the
Constitution for this purpose which obviously cannot be
done: (see Janardan Reddy v. the State(1)).
The next question is whether a judicial or quasijudicial
authority outside the territory of India but within the
territory under the administration of the Government of
India can be said to be under the control of the Government
of India. For this purpose we have to find out the meaning
of the words “under the control of the Government of India”
as used in Art. 12. It is submitted on behalf of the
petitioner that if an authority is appointed by the
Government of India, is paid by the Government of India and
is liable to disciplinary action by the Government of India,
it would be an authority “under the control of the
Government of India”. It is urged that as the Chief
Commissioner, who is the appellate Authority, was appointed
by the Government of India, was paid by the Government of
India and was under the disciplinary control of the
Government of India, he would be an authority under the
control of the Government of India and this court would
therefore have been entitled to issue a writ against him
even when the order was passed and therefore all the more
so,, when Pondicherry is now within the territory of India.
The contention however that this Court could issue a writ
under Art. 32 against the Appellate Authority even at the
time when the order was passed, is clearly negatived by the
majority decision in Masthan Sahib’s case (2), for if that
could be done, writ would have been issued in that case.
The reason why writ was not issued in Masthan Sahib’s case
(2), was that the quasi -judicial authority was outside the
territory of India and this Court held that if the authority
were of an executive or administrative nature, a writ could
have been issued to the Government of India “”directing them
to give effect to the decision of this Court by the exercise
of their powers
(1) [1950] S.C.R. 940. (2) [1962] Supp. 1 S.C.R. 981.
668
of control over the authority outside the territory of
India”. But as the authority in that case ‘just like the
authority in the present case was a quasi-judicial authority
resort to such a procedure was not possible and if the
orders or directions could not be directly enforced against
the authority in Pondicherry, the order would be
ineffective. This clearly implies that the quasi-judicial
authority was not under the control of the Government of
India like an executive or administrative authority and
therefore it was not possible for this Court to issue a
direction to the Government of India to direct a quasi-
judicial authority 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”. It follows from
these observations in the majority decision in that case
that the control envisaged by the words “under the control
of the Government of India” in Art. 12 is not the control
which arises out of mere appointment, payment and the right
to take disciplinary action; the control envisaged under
Art. 12 is a control of the functions of the authorities
concerned, and the right of the Government of India by
virtue of that control to give directions to the authority
to function in a particular manner with respect to such
functions. Now if the authorities were administrative or
executive the control of the Government of India would not
only be by virtue of appointment, payment and disciplinary
action, but it would also extend to directing the authority
to carry out its functions in a particular manner and a
purely executive or administrative authority can always be
directed by the Government of India under which it is
functioning to act in a particular manner with respect to
its functions. This, however,cannot be said of a quasi-
judicial or judicial authority even though the Government of
India may have appointed the authority and may be paying it
and may have the right to take disciplinary action against
it in certain eventualities. It was not open
669
to the Government of India to control the functions of a
quasi-judicial or judicial authority and direct it to decide
a particular matter before it in a particular way. It seems
to us therefore that the control envisaged under Art. 12 is
control of the functions of the authorities and it is only
when the Government of India can control the function of an
authority that it can be said that the authority is under
the control of the Government of India. Such control is
possible in the case of a purely executive or administrative
authority; it is impossible in the case of a quasi-judicial
or judicial authority, for in the very nature of things,
where rule of’ law prevails, it is not open to the
Government, be it the Government of India or the Government
of a State, to direct a quasi-judicial or judicial authority
to decide a particular’ matter before it in a particular
manner. Therefore, this being the nature of the control
which the Government of India must exercise in order that an
authority functioning outside the territory of India may be
said to be an authority under the control of the Government
of India within the meaning of Art. 12, a quasi-judicial or
judicial authority cannot be said to be an authority under
the control of the Government of India within this meaning.
We are therefore of opinion that the Appellate authority
being quasi-judicial could not be directed by the Government
of India to decide a particular matter before it in a
particular manner and therefore it cannot be said that it is
an authority under the control of the Government of India.
As we have already indicated, this follows from the
reasoning of the majority in Masthan Sahib’s Case (1),
though it was not decided specifically as such in that case.
We are therefore of opinion that judicial or quasi-.judicial
authorities functioning in territories administered by the
Government of India but outside the territory of India
cannot be said to be authorities under the control of the
Government of India within the meaning of Art. 12, and
therefore Art. 12 would not apply to
670
such authorities functioning outside the territory of India.
Consequently it would not be open to this Court to issue a
writ under Art. 32 read with Art. 12 against a
quasi-.judicial authority outside the territory of India
even though that authority might have been appointed by the
Government of India, might be paid by the Government of
India or the Government of India might have the power of
disciplinary action against it. The Appellate Authority
being a quasijudicial authority would thus not be under the
control of the Government of India within the meaning of
Art. 12. Therefore it would not have been open to this
Court to issue a writ against the order under challenge when
it was passed. In consequence it is not open to this Court
now that Pondicherry has become part of India to issue a
writ to the Appellate Authority with respect to an order
passed by it before Pondicherry became part of India, as the
Constitution for this purpose is not retrospective.
The matter can be looked at in another way. Art. 15
prohibits the State from 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 State
as defined in Art. 12 (for there is nothing in the context
of Art. 15 to require otherwise) discriminates, that a
citizen can complain of the breach of Art. 15 and ask for
relief from this Court under Art. 32. We have however held
that the Chief Commissioner being a quasi-judicial authority
was not under the control of the Government of India within
the meaning of Art. 12. Therefore, he could 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. The protection of Art. 1.5 is
against discrimination by “the State.” The petitioner
therefore would not be entitled to any protection under Art.
15 against the Chief Commissioner at the time the impugned
order
671
was made. That is another reason why the present petition
must fail.
We therefore dismiss the appeal and pass no order as to
costs in respect thereof. We dismiss the writ petition with
costs.
Appeal dismissed.
Writ petition dismissed.