{"id":150530,"date":"1961-12-08T00:00:00","date_gmt":"1961-12-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-masthan-sahib-vs-chief-commissioner-pondicherry-on-8-december-1961"},"modified":"2016-12-07T21:53:27","modified_gmt":"2016-12-07T16:23:27","slug":"n-masthan-sahib-vs-chief-commissioner-pondicherry-on-8-december-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-masthan-sahib-vs-chief-commissioner-pondicherry-on-8-december-1961","title":{"rendered":"N. Masthan Sahib vs Chief Commissioner, Pondicherry on 8 December, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
N. Masthan Sahib vs Chief Commissioner, Pondicherry on 8 December, 1961<\/div>\n
Equivalent citations: 1962 AIR 797, \t\t 1962 SCR Supl. (1) 981<\/div>\n
Author: N R Ayyangar<\/div>\n
Bench: Gajendragadkar, P.B., Sarkar, A.K., Wanchoo, K.N., Gupta, K.C. Das, Ayyangar, N. Rajagopala<\/div>\n
           PETITIONER:\nN. MASTHAN SAHIB\n\n\tVs.\n\nRESPONDENT:\nCHIEF COMMISSIONER, PONDICHERRY\n\nDATE OF JUDGMENT:\n08\/12\/1961\n\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nGAJENDRAGADKAR, P.B.\nSARKAR, A.K.\nWANCHOO, K.N.\nGUPTA, K.C. DAS\n\nCITATION:\n 1962 AIR  797\t\t  1962 SCR  Supl. (1) 981\n CITATOR INFO :\n R\t    1963 SC1464\t (3,4,5,6,7,12)\n\n\nACT:\n     Territory of  India-Pondicherry, if  part\tof\nIndia-Question referred to Union Government-Answer\nof Union Government, if binding on Court-Orders of\nauthorities   in   Pondicherry-Appeal\tand   Writ\nPetition,  if\tmaintainable  in   Supreme  Court-\nConstitution of India, Arts. 1 (3), 32 and 136.\n\n\n\nHEADNOTE:\n     The Supreme  Court referred  two questions to\nthe Union  Government viz (i) whether. Pondicherry\nwas comprised  within the  territory of India, and\n(ii)  if   not,\t what\twas  the   extent  of  the\njurisdiction exercised by the Union Government and\nthe French  Government\tover  the  territory.  The\nanswers given  were that  (i) Pondicherry  was not\ncomprised within  the territory\t of India and (ii)\nthe Union  Government exercised\t full jurisdiction\nover Pondicherry and the French Government did not\nexercise any  de facto jurisdiction over it. There\nwas a  treaty of  cession between France and India\nin respect  of Pondicherry  but it  had\t not  been\nratified as  required by  the  French  and  Indian\nlaws. The  appellant contended\tthat the answer of\nthe  Union   Government\t to  the  second  question\nestablished  that  Pondicherry\twas  part  of  the\nterritory of  India and\t that the  Court  was  not\nbound by the answer to the first question.\n^\n     Held,  that  Pondicherry  was  not\t comprised\nwithin the territory of India as specified in Art.\n1(3) of\t the Constitution. The answer of the Union\nGovernment on  this question  was binding  on  the\nCourt. There  was no  conflict between the answers\nto   the    two\t  questions.\tThough\t  complete\nadministrative control\tover Pondicherry  had been\ntransferred to\tthe Government\tof India  it could\nnot be\tequated to a transfer of territory. Unless\nthere was  ratification of  the Treaty there could\nlegally be  no transfer of territory. Accordingly,\nno appeal  could be entertained by the Court under\nArt. 136 of the Constitution against the decisions\nof the authorities in Pondicherry.\n982\n     Duff Development  Company\tv.  Government\tof\nKelantan  1924\t A.  C.\t 797,  Government  of  the\nRepublic of Spain v. Arantzazu Mendi. (1939) A. C.\n256 and Fagernes 1927 Probate 311, applied.\n     Jolley v.\tMainka 49 C.L.R. 242 and Efrost v.\nSlevenson, 58 C.L.R. 528, distinguished.\n     Per  Gajendragadkar,  Wanchoo  and\t Ayyangar,\nJJ.-Having regard  to the  nature  of  the  relief\nsought no  writ under  Art. 32 of the Constitution\ncould be issued to the authorities in Pondicherry.\n     Per Sarkar\t and  Das  Gupta,  JJ-The  Supreme\nCourt could  issue a  writ under  Art. 32  to  the\nquasi-Judicial authorities in Pondicherry. Article\n32 was a fundamental right and the right to obtain\na writ\twas equally  a fundamental  right. If  the\nConstitution gave  to a\t party a fundamental right\nto a  writ the\tCourt could not refuse that right.\nThe consideration  that the writ issued may not be\nenforced in  Pondicherry could\tnot be\tallowed to\ndefeat the  provisions of the Constitution. Such a\nconsideration is  relevant only\t in  the  case\tof\ndiscretionary orders.\n     K. K. Kochunni v. The State of Madras,<\/a> [1959]\nSupp. 2\t S.C.R. 316,  In re International Pulp and\nPaper Co.  Ltd., (1876)\t 3 Ch D.594, Reg v. Fox, 8\nE. &  B. 939,  R. v. Cassel, (1916) I K B. 595 and\nIn re Banwarilal Roy, 48, C.W.N. 755, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION:  Civil  Appeal
\nNos. 42 and 43 of 1961.\n<\/p>\n
     Appeals by\t special leave\tfrom the judgments
\nand orders  dated September  7, 1960  of the Chief
\nCommissioner, Pondicherry  in Appeals  Nos. 56 and
\n57 of 1960.\n<\/p>\n
\t\t       WITH
\n       Petitions Nos. 297 and 298 of 1960.\n<\/p>\n
     Petitions under  Art. 32  of the Constitution
\nof India for enforcement of Fundamental Rights.\n<\/p>\n
     A. V.  Viswanatha Sastri  R.  K.  Garg,  M.K.
\nRamamurthy, S.C. Agrawal and D. P.  Singh, for the
\nappellants\/petitioners (In  both the  appeals  and
\nthe petitions.)
\n     C. K.  Daphtary, Solicitor-General\t of India,
\nB. Sen, B. R. L. Iyengar and T. M. Sen, for the
\n983<\/span>
\nrespondent  No.\t  1  (in  both\tthe  appeals)  and
\nrespondents Nos. 1 and 2 (in both the petitions).\n<\/p>\n
     A.\t S.  R.\t Chari,\t K.  R.\t Choudhri  and\tR.\n<\/p>\n
Mahalingier, for  respondent No.  2 (in\t both  the
\nappeals).\n<\/p>\n
     R. Gopalakrishnan,\t for respondent\t No. 3 (in
\nboth the petitions).\n<\/p>\n
     1961.   December,\t  8.-The    Judgment\tof
\nGajendragadkar, Wanchoo\t and  Ayyangar,\t JJ.,  was
\ndelivered by  Ayyangar, J.  The judgment of Sarkar
\nand Das Gupta, JJ., was delivered by Sarkar, J.\n<\/p>\n
     AYYANGAR, J.-The  two Civil  Appeals  are\tby
\nspecial leave  of this\tCourt  and  the\t two  Writ
\nPetitions  have\t  been\tfiled  by  the\trespective
\nappellants seeking  the\t same  relief  as  in  the
\nappeals, the relief sought being the setting aside
\nof orders  passed by  the  Chief  Commissioner\tof
\nPondicherry  as\t  the  State  Transport\t appellate
\nauthority (under  the  Motor  Vehicles\tAct).  All
\nthese four  have been  heard together because of a
\ncommon point  raised regarding the jurisdiction of
\nthis  Court  to\t entertain  the\t appeals  and  the
\npetitions.\n<\/p>\n
     It is  manifest that  the\tpreliminary  point
\nabout the  jurisdiction of  this Court should have
\nfirst to  be considered\t before dealing\t with  the
\nmerits of  the contentions  raised in  the appeals
\nand petitions.\tIt might  be convenient to state a
\nfew facts  to appreciate  the context in which the
\nquestions debated  before us  arise and\t the point
\nconcerned in the order now passed.\n<\/p>\n
     Sivarama  Reddiar\t the  appellant\t in  Civil
\nAppeal 43  of 1961  and\t the  petitioner  in  Writ
\nPetition 298 of 1960, is a citizen of India and is
\nengaged in  the business  of motor transport. By a
\nnotification  dated   December\t27,  1958  in  the
\nOfficial  Gazette   of\t Pondicherry   the   State
\nTransport  Commission\tof   Pondicherry   invited
\napplications  for  the\tgrant  of  stage  carriage
\npermits to  be submitted before February 27, 1959,
\nincluding the  route from Pondicherry to Karaikal,
\nthe latter being another
\n984<\/span>
\nformer French  possession.  In\tresponse  to  this
\nnotification, Sivarama\tReddiar\t as  well  as  one
\nGopal Pillai  who is  the second respondent to the
\nappeal and  the\t second\t respondent  in\t the  Writ
\nPetition were  two of  the  19\tpersons\t who  made
\napplications for the grant of this permit to them.
\nBefore the  State Transport  Commission dealt with
\nthese applications, the Government of India in the
\nexercise of  its powers\t under s. 4 of the Foreign
\nJurisdiction Act, 1947 published a notification in
\nthe Official  Gazette of Pondicherry extending the
\nprovisions of  the Indian Motor Vehicles Act, 1939
\nas in  force in\t Delhi to  Pondicherry with effect
\nfrom June 19, 1959. Rules 3(4) and 4 of this order
\npromulgated under  the\tForeign\t Jurisdiction  Act
\nprovided:\n<\/p>\n
\t  “3(4). Any  Court, tribunal or authority
\n     required or empowered to enforce the said Act
\n     in\t Pondicherry   may  for\t  the  purpose\tof
\n     facilitating its  application in  relation to
\n     Pondicherry construe  the said  Act with such
\n     alteration not affecting the substance as may
\n     be necessary  or proper  with respect  to the
\n     matter  before   the   Court,   tribunal\tor
\n     authority as the case may be.”\n<\/p><\/blockquote>\n
Rule 4 effected a repeal of existing laws in these
\nterms:\n<\/p>\n
\t  “Repeal of  existing laws:-All  laws\tin
\n     force in  Pondicherry immediately\tbefore the
\n     commencement of the Order which correspond to
\n     the Act  and  the\trules,\tnotifications  and
\n     ‘Orders applied  to Pondicherry by this order
\n     shall, except  in so  far as such laws relate
\n     to the  levy of any fee, cease to have effect
\n     save as respects things done or omitted to be
\n     done before such commencement.”\n<\/p><\/blockquote>\n
On  July  21,  1959,  the  Chief  Commissioner\tof
\nPondicherry, in\t exercise of  the powers conferred
\non him\tby s.  44 of  the Motor Vehicles Act, 1939
\nconstituted  a\t State\tTransport   Authority  for
\nPondicherry The
\n985<\/span>
\nState  Transport   Authority,\tPondicherry   thus
\ncreated, issued\t a notification\t on August 1, 1959
\nby which  it required  persons who had applied for
\nStage  Carriage\t  permits  in\tresponse  to   the
\nnotification dated  December 27,  1958 to  furnish
\nparticulars with  regard to  a number  of  matters
\nwhich were  relevant for  being considered for the
\ngrant of  a Stage  Carriage permit under the Motor
\nVehicles  Act.\t Both\tthe   appellant-petitioner
\nSivarama  Reddiar   as\twell  as  inter\t alia  the
\nrespondent Gopal  Pillai  furnished  the  required
\nparticulars.  The   Particulars\t supplied  by  the
\nparties were  checked and  verified by\tdesignated
\nauthorities and\t thereafter  the  State\t Transport
\nAuthority by  an order\ton April 30, 1960 directed
\nthe  grant   of\t the   permit  to  the\tappellant-
\npetitioner Sivarama  Reddiar rejecting\tthe claims
\nof all\tothers\tincluding  the\trespondent  Gopala
\nPillai. Though\tthe Motor  Vehicles Act\t which had
\nbeen  extended\tto  Pondicherry\t included  s.  64,
\nwhereby persons\t aggrieved by  an order of a State
\nTransport Authority  could  file  appeals  against
\nsuch  order,   no  appellate  authority\t had  been
\nconstituted  by\t  the  Chief   Commissioner.  This
\nsituation was  remedied by  a notification  by the
\nChief Commissioner  dated May  4, 1960\twhereby he
\nconstituted himself  under s. 68 of the Act as the
\nappellate authority  for the purpose of exercising
\njurisdiction under  s. 64  thereof. Several of the
\naggrieved  operators   including   Gopala   Pillai
\npreferred appeals to the Chief Commissioner. By an
\norder  dated   September   5,\t1960   the   Chief
\nCommissioner, Pondicherry  allowed the\tappeal\tof
\nthe respondent\tGopala Pillai, set aside the order
\nof the\tState  Transport  Authority  granting  the
\npermit\tto  the\t appellant  Sivarama  Reddiar  and
\ndirected that the permit for the route Pondicherry
\nto Karaikal  be issued in favour of the respondent
\nGopala Pillai.\tWrit Petition 293 of 1960 has been
\nfiled to secure the setting aside of this order of
\nthe Chief  Commissioner on  the\t ground\t that  the
\norder violates\tthe fundamental\t rights guaranteed
\nto the petitioner by
\n986<\/span>
\nPart III  of the Constitution and Civil Appeal No.
\n43 of  1961 is directed to obtain the same relief.
\nIt is  not necessary  at this stage to set out the
\nfacts of  the other appeal and petition by Masthan
\nSahib, because\texcept that the route is different
\nand so,\t are the grounds on which the order of the
\nChief Commissioner  is sought  to be impugned, the
\nother\tmaterial    facts   relevant\tfor    the
\nconsideration of the preliminary point to which we
\nadverted are exactly the same.\n<\/p>\n
     The preliminary  objection that  is raised to
\nthe entertainment  of the  appeal  is  shortly\tas
\nfollows:\n<\/p>\n
     Art. 136  (1) of the Constitution under which
\nthe appellant has obtained special leave reads:\n<\/p>\n
     “136 (1).\tNotwithstanding anything  in  this
\n     Chapter,  the   Supreme  Court  may,  in  its
\n     discretion, grant\tspecial\t leave\tto  appeal
\n     from  any\tjudgment,  decree,  determination,
\n     sentence or  order in  any\t cause\tor  matter
\n     passed or\tmade by\t any court  or tribunal in
\n     the territory of India.”\n<\/p><\/blockquote>\n
In order,  therefore, that  this Court\tmight have
\njurisdiction to\t entertain  the\t appeal\t it  is\t a
\nprerequisite that the Court or tribunal from whose
\njudgment or  order the\tappeal is preferred should
\nbe one\tin the\tterritory of India. It is urged on
\nbehalf of  the respondent  that Pondicherry is not
\npart  of   the\tterritory   of\tIndia,\t with  the
\nconsequence  that  the\tChief  Commissioner  whose
\norder is impugned in the appeal is not “a Court or
\ntribunal in  the territory of India.” The question
\nthus   raised\t is   of   great   political   and
\nconstitutional significance and it is not disputed
\nthat if\t this area  were not part of the territory
\nof India, this Court would have no jurisdiction in
\nthe absence of any legislation by Parliament under
\nArt. 138  (1), and  the Civil Appeal would have to
\nbe dismissed as incompetent.\n<\/p>\n
     It\t was  common  ground  that  this  was  the
\nposition in  regard to\tthe maintainability of the
\nappeal
\n987<\/span>
\nbut in regard to the Writ Petition Mr. Vishwanatha
\nShastri-learned Counsel\t for the petitioner-sought
\nto  sustain   its  maintainability   on\t  slightly
\ndifferent grounds. He invited our attention to the
\nterms of Art. 12 of the Constitution which reads:\n<\/p>\n
     “In this  Part, unless  the context otherwise
\n     requires, “the State” includes the Government
\n     and Parliament  of India  and the\tGovernment
\n     and the Legislature of each of the States and
\n     all local\tor other  authorities  within  the
\n     territory of  India or  under the\tcontrol of
\n     the Government of India.”\n<\/p><\/blockquote>\n
Learned Counsel\t pointed out  that for the purpose
\nof the\texercise of this Court’s powers under Art.
\n32 of  the Constitution for the enforcement of the
\nfundamental  rights   its  jurisdiction\t  was  not
\nlimited to  the authorities functioning within the
\nterritory of  India but\t that it  extended also to
\nthe giving of directions and the issuing of orders
\nto  authorities\t  functioning  even   outside  the
\nterritory of India, provided that such authorities
\nwere subject  to the  control of the Government of
\nIndia. This  submission appears to us well-founded
\nand that the powers of this Court under Art. 32 of
\nthe Constitution  are  not  circumscribed  by  any
\nterritorial limitation. It extends not merely over
\nevery authority\t within the territory of India but
\nalso those  functioning outside provided that such
\nauthorities  are   under  the\tcontrol\t  of   the
\nGovernment of India.\n<\/p>\n
     The power conferred on this Court by Part III
\nof the\tConstitution has,  however, to\tbe read in
\nconjunction with  Art.\t142  of\t the  Constitution
\nwhich reads:\n<\/p>\n
     “142 (1) The Supreme Court in the exercise of
\n     the jurisdiction  may  pass  such\tdecree\tor
\n     makes such\t order as  is necessary\t for doing
\n     complete  justice\tin  any\t cause\tor  matter
\n     pending before  it, and  any decree so passed
\n     or\t order\t so  made   shall  be  enforceable
\n     throughout the territory
\n988<\/span>
\n     of India  in such manner as may be prescribed
\n     by or  under any  law made\t by Parliament and
\n     until provision in that behalf is so made, in
\n     such manner  as the  President may\t by  order
\n     prescribe.\n<\/p><\/blockquote>\n
     (2) Subject to the provisions of any law made
\n     in this  behalf by\t Parliament,  the  Supreme
\n     Court shall,  as respects\tthe whole  of  the
\n     territory of  India, have all and every power
\n     to make any order for the purpose of securing
\n     the attendance  of any  person, the discovery
\n     or\t production   of  any  documents,  or  the
\n     investigation or  punishment of  any contempt
\n     of itself.”\n<\/p><\/blockquote>\n
It would  be  seen  that  Art.\t142  brings  in\t a
\nlimitation as  regards\tthe  territory\twhich  the
\norders\tor  directions\tof  this  Court\t could\tbe
\nenforced. It  is manifest that there is an anomaly
\nor a  discordance between the powers of this Court
\nunder  Art.   32  read\t with  Art.   12  and  the
\nexecutability  or  enforceability  of  the  orders
\nunder Art.  142. It  is\t possible  that\t this  has
\napparently arisen  because the\tlast words of Art.
\n12 extending  the jurisdiction\tof this\t Court\tto
\nauthorities “under  the control\t of the Government
\nof India”  were added  at  a  late  stage  of  the
\nconstitution making  while Arts.  142 and 144, the
\nlatter reading:\n<\/p>\n
\t  “All authorities, civil and judicial, in
\n     the territory  of India  shall act\t in aid of
\n     the Supreme Court”.\n<\/p><\/blockquote>\n
were taken,  in whole  or in  part, from s. 210 of
\nthe Government\tof India  Act, 1935  and  that\tno
\nnecessary changes  were made  in Art. 142 to bring
\nit into\t line with  Art. 12  as it finally emerged
\nand the\t powers of  this Court\tunder Art. 32. But
\nthis however offers us no solution to the question
\nwhich  is  whether,  in\t view  of  the\tlimitation
\nimposed by Art. 142 on the area within which alone
\nthe directions\tor orders  of this  Court could be
\ndirectly
\n989<\/span>
\nenforced, the  Court could  issue a  writ  in  the
\nnature of  certiorari or other appropriate writ or
\ndirection to  quash a  quasi-judicial order passed
\nby an  authority outside  the territory\t of India,
\nthough such  authority is under the control of the
\nGovernment of India. If the order of the authority
\nunder the  control of  the Government of India but
\nfunctioning outside  the territory of India was of
\nan  executive  or  administrative  nature,  relief
\ncould be afforded to a petitioner under Art. 32 by
\npassing suitable  orders against the Government of
\nIndia  directing   them\t to  give  effect  to  the
\ndecision of  this Court\t by the\t exercise of their
\npowers of  control over\t the authority outside the
\nterritory  of\tIndia.\tSuch  an  order\t could\tbe
\nenforceable by\tvirtue of  Art. 144,  as also Art.\n<\/p>\n
142. But  in a case where the order of the outside
\nauthority is of a quasi-judicial nature, as in the
\ncase before  us, we consider that resort to such a
\nprocedure is  not possible  and that if the orders
\nor directions  of this Court could not be directly
\nenforced against the authority in Pondicherry, the
\norder would  be ineffective and the Court will not
\nstultify itself by passing such an order.\n<\/p>\n
     In these  circumstances it becomes imperative
\nthat we\t should ascertain  the constitutional  and
\npolitical status of Pondicherry in relation to the
\nUnion of India. Certain documents have been placed
\nbefore us  and in  particular an  agreement  dated
\nOctober\t 21,   1954  entered   into  between   the
\nGovernment of  India and  of France  by which  the
\nadministration of  Pondicherry was  ceded  to  the
\nGovernment of India. Mr. Viswanatha Sastri learned
\nCounsel\t for  the  appellant-petitioner\t contended
\nthat on the terms and conditions contained in this
\nagreement, Pondicherry was a part of the territory
\nof India.  On the  other hand,\tMr.  Chari-learned
\nCounsel\t for   the  respondents\t  urged\t that  the
\nreservations contained\tin the agreement were such
\nas  to\t preclude  the\tCourt  from  reaching  the
\nconclusion
\n990<\/span>
\nthat  there   had  been\t a  transfer  of  complete
\nsovereignty, which  according to him was necessary
\nin order  to constitute\t the area  as part  of the
\nterritory of  India. The learned Solicitor-General
\nwho appeared  in response  to the  notice  to  the
\nUnion  of   India,  submitted\tthat   the   Union
\nGovernment  was\t  agreeable  to\t  the\trespective
\ncontentions urged  by the parties being decided by
\nthe Court.\n<\/p>\n
     We have considered the matter urged before us
\nwith great  care and  desire to make the following
\nobservations: So far as the Constitution of Indian
\nis concerned,  we have\tan express  definition\tof
\nwhat the phrase “territory of India” means. Art. 1
\n(3) enacts:\n<\/p>\n
     “1.  (3)  The   territory\tof   India   shall
\n     compromise-\n<\/p><\/blockquote>\n
     (a)  the territories of the States;<\/p><\/blockquote>\n
     (b)  the Union  territories specified  in the
\n\t  First Schedule; and\n<\/p>\n
     (c)  such\tother\tterritories  as\t  may\tbe
\nacquired.”\n<\/p>\n
There might  be little\tdifficulty about  locating
\nthe territories\t which are  set out  in cls. (a) &\n<\/p>\n
(b) but\t when one comes to (c) the question arises
\nas to  when a  territory is  “acquired”\t and  what
\nconstitutes “acquisition”.  Having regard  to  the
\nsubject\t dealt\twith,  the  expression\t“acquired”
\nshould be taken to be a reference to “acquisition”
\nas understood  in  Public  International  Law.\tIf
\nthere were  any public\tnotification assertion\tor
\ndeclaration  by\t  which\t the  Government  of  this
\ncountry had  declared or  treated a  territory\tas
\npart and  parcel of  the territory  of India,  the
\nCourts\t would\t  be   bound   to   recognise\tan
\n“acquisition” as  having  taken\t place,\t with  the
\nconsequence that  that territory  would be part of
\nthe territory  of the Union within Art.1(3)(c). In
\nthe present  case, we  have this  feature that the
\nadministration of the territory is being conducted
\nunder the  powers vested  in the  Government under
\nthe Foreign Jurisdiction Act. The preamble to that
\nAct recites that it was:\n<\/p>\n
991<\/span><\/p>\n
\t  “An Act  to provide  for the exercise of
\n     certain foreign  jurisdiction of  the Central
\n     Government”.\n<\/p><\/blockquote>\n
and   accordingly    the    expression\t  “foreign
\njurisdiction” is  defined in  its s.  2(a) to mean
\n“the jurisdiction which the Central Government has
\nfor the\t time being  in\t or  in\t relation  to  any
\nterritory outside  India.” Thus\t this would  prima
\nfacie  show   that  Pondicherry\t  has\tnot   been
\n“acquired” but\tstill continues\t to be outside the
\nterritory  of  India.  In  our\topinion,  however,
\nthough this might be very strong evidence that the
\nterritory has  not been “acquired” and so not part
\nof the\t“territory of  India”,\tit  is\tstill  not
\nconclusive. In\tthis state  of\tcircumstances  two
\ncourses would  be open\tto us:\t(1) to\tdecide for
\nourselves on  the material  that has  been  placed
\nbefore us  in the  shape of  the agreement between
\nthe two\t Governments etc.  Whether Pondicherry has
\nbeen “acquired”\t so  as\t to  become  part  of  the
\nterritory  of\tIndia,\tor   (2)  to   invoke  the
\nassistance of  the Government of India by inviting
\nthem to\t state\twhether\t the  territory\t has  been
\nacquired within\t Art. 1(3) of the Constitution and
\nwhether\t Pondicherry  is  thus\tnow  part  of  the
\n“territory of  India”. We  originally proposed\tto
\navail ourselves only of the procedure indicated in
\ns.6 of\tthe Foreign  Jurisdiction Act  1947  which
\nenacts:\n<\/p>\n
\t  “6. (1)  If in  any proceeding, civil or
\n     criminal, in  a Court established in India or
\n     by the  authority of  the Central\tGovernment
\n     outside India,  any question arises as to the
\n     existence\t or    extent\tof   any   foreign
\n     jurisdiction of  the Central  Government, the
\n     Secretary to  the Government  of India in the
\n     appropriate   department\t shall,\t  on   the
\n     application of  the Court,’ send to the Court
\n     the decision of the Central Government on the
\n     question, and  that decision  shall  for  the
\n     purposes of the proceeding be final.\n<\/p><\/blockquote>\n
992<\/span><\/p>\n
     (2)  The\tCourt  shall   send  to\t the  said
\n     Secretary in a document under the seal of the
\n     Court or  signed by  a Judge  of  the  Court,
\n     questions framed  so as properly to raise the
\n     question, and  sufficient\tanswers\t to  those
\n     questions shall  be returned  to the Court by
\n     the Secretary  and\t those\tanswers\t shall\ton
\n     production thereof\t be conclusive evidence of
\n     the matters therein contained.”\n<\/p><\/blockquote>\n
But the\t learned Solicitor-General  very  properly
\npointed out  that an  answer to the question which
\ncould  be  referred  under  this  provision  would
\nrelate merely  to  “the\t existence  or\textent\tof
\njurisdiction” and that information on these points
\nmight not be sufficient to solve the problem posed
\nby the\tpreliminary question raised in the appeals
\nand petitions  as to whether Pondicherry is a part
\nof the\t“territory of India” or not. We agree with
\nthe  learned  Solicitor-General\t that  information
\nrelating to  the  “existence  or  extent”  of  the
\njurisdiction exercisable  by the  Union Government
\nin the\tterritory might\t not completely\t solve the
\nquestion  for\tour   decision\t as   to   whether
\nPondicherry is\tpart of\t the territory of India or
\nnot, but  still if  the extent of the jurisdiction
\nvested in the Union Government by the arrangements
\nentered into between the two Governments virtually
\namounts to  a transfer\tof sovereignty\tfor  every
\npractical purpose, it would be possible to contend
\nthat  such   a\ttransfer   or\tcession\t  was\tso
\nincompatible with  the existence  of any practical
\nsovereignty in the French Government as to detract
\nfrom the  surrender or\ttransfer being\tother than
\ncomplete. It  is for  this reason that we consider
\nit proper  to exercise\tthe powers  vested in  the
\nCourt under s. 6 of the Foreign Jurisdiction Act.\n<\/p>\n
     It would  be  observed  from  what\t has  been
\nstated above  that it  would be\t more satisfactory
\nand  more   useful  for\t  the  disposal\t  of   the
\nproceedings
\n993<\/span>
\nbefore\tus   if\t we   ascertain\t from\tthe  Union
\nGovernment an  answer to the question whether they
\ndo or  do not consider that Pondicherry is part of
\nthe territory  of India.  We have only to add that
\non  the\t  decisions  in\t England,  the\tCourt  has
\njurisdiction to invite the Government to assist it
\nby  information\t  as  to   whether  according\tto
\nGovernment any territory was part of Her Majesty’s
\nDominion or  not (vide\tThe Fagernes  L.  R.  1927
\nProbate\t 311).\tBesides,  the  learned\tSolicitor-
\nGeneral agreed that the Government would assist us
\nby answering our reference. In view of the matters
\nset  out   above  we  direct  that  the\t following
\nquestions shall be forwarded to the Union of India
\nunder the seal of this Court for the submission of
\ntheir answers:\n<\/p>\n
     (1) Whether  Pondicherry which  was a  former
\nFrench\tSettlement   is\t or   is  not  at  present
\ncomprised  within   the\t territory   of\t India\tas
\nspecified in  Art. 1(3)\t of  the  Constitution\tby
\nvirtue of  the Articles\t of the\t Merger\t Agreement
\ndated October  21, 1954 between the Governments of
\nIndia and  France and  other relevant  agreements,
\narrangements,  acts   and  conduct   of\t the   two
\nGovernments.\n<\/p>\n
     (2) If  the answer\t to  Question  1  is  that
\nPondicherry is\tnot within the territory of India,
\nwhat is\t the extent  of the jurisdiction exercised
\nby the\tUnion Government  over the  said territory
\nand whether  it extends\t to making  all and  every
\narrangement  for  its  civil  administration,  its
\ndefence and  in regard to its foreign affairs. The
\nGovernment of India might also state the extent of
\njurisdiction which  France possesses over the area
\nand  which   operates  as   a  diminution  of  the
\njurisdiction ceded to or enjoyed by the Government
\nof India.\n<\/p>\n
     On\t the  receipt  of  the\tanswers\t to  these
\nquestions the  appeals will  be posted for further
\nhearing.\n<\/p>\n
     SARKAR J.-Four  matters came  up for  hearing
\ntogether. Two  of these\t are appeals  brought with
\nleave
\n994<\/span>
\ngranted by  this Court and two are petitions under
\nArt. 32\t of the\t Constitution. One  appeal and one
\npetition are by one party and the other appeal and
\npetition  are  by  another.  The  appeal  and  the
\npetition by  each party challenge an order made by
\nthe Chief  Commissioner of  Pondicherry under  the
\nMotor Vehicles\tAct, 1939.  Each of the two orders
\nchallenged was\tmade on applications for the grant
\nof bus\tpermits. By one of the orders a permit for
\na certain  route had  been given to a person other
\nthan one  of the  parties who  has  moved  us,\tin
\npreference to  him. By the other order, similarly,
\nthe claim of the other party moving us to a permit
\nfor  a\tdifferent  route  was  rejected.  All  the
\nmatters\t raise\tsubstantially  the  same  question
\nconcerning   the    validity\tof    the    Chief
\nCommissioner’s orders.\n<\/p>\n
     Now,  Pondicherry\t was  earlier\ta   French
\npossession  administered   by  the  Government\tof
\nFrance. By an agreement between the Governments of
\nIndia\tand    France,\t the   administration\tof
\nPondicherry was\t transferred to\t the Government of
\nIndia as  from November 1, 1954. The Government of
\nIndia had  been exercising  power  in  Pondicherry
\nsince, under  the Foreign  Jurisdiction Act, 1947.
\nThe  Chief   Commissioner  of  Pondicherry  is\tan
\nofficer of the Government of India appointed under
\nthe powers derived as a result of the agreement.\n<\/p>\n
     With regard to the appeals, question arose at
\nthe hearing  before us\tas to  whether\tthey  were
\ncompetent. The\tappeals had  been filed with leave
\ngranted under Art. 136 of the Constitution. It was
\nsaid that  the appeals\twere  incompetent  because
\nPondicherry was outside the Indian territories and
\nunder Art.  136 no  appeal from\t any court outside
\nsuch  territories  lay\tto  this  Court.  It  was,
\nhowever, contended  on behalf  of  the\tappellants
\nthat since  the Indo-French agreement or very soon
\nthereafter, Pondicherry\t became part of the Indian
\nterritories as\ta territory acquired by India and,
\ntherefore the appeals who
\n995<\/span>
\ncompetent.  As\t the  most   satisfactory  way\tof
\ndeciding  the\tquestion  whether  Pondicherry\tis
\nwithin India  or not  is to  seek information from
\nthe Government\ton the\tpoint, the majority of the
\nmembers of  the bench  are  of\topinion\t that  the
\nGovernment  of\t India\tshould\tbe  approached\tto
\nenlighten  us  about  it.  The\tlearned\t Solicitor
\nGeneral, appearing  for the  Government,  has  not
\nobjected to this procedure being adopted.\n<\/p>\n
     With regard  to the  Petitions under Art. 32,
\nit was\tcontended that\tthe Chief  Commissioner of
\nPondicherry was a State within the meaning of Art.
\n12 of  the Constitution\t as under that article any
\nauthority under\t the control  of the Government of
\nIndia outside  the territory  of India was a State
\nfor the\t purpose of  Part III of the Constitution.
\nOn this\t basis it  was contended  on behalf of the
\npetitioners  that  the\tpetitions  under  Art.\t32
\nasking for  certain writs  to quash  the orders of
\nthe Chief  Commissioner of  Pondicherry were  also
\ncompetent. A  further question\tthen arises  as to
\nwhether in  view of  Art. 142  of the Constitution
\nthe writs, if issued, could be enforced against an
\nauthority under the control of Government of India
\nat Pondicherry,\t if Pondicherry\t was outside India
\nand if\tthey could  not, whether  the Court should
\nissue the  writs as  it would  only be stultifying
\nitself by doing so.\n<\/p>\n
     It seems  to us  that it  is  unnecessary\tto
\ndecide these  questions at  this stage, for we are
\ngoing to  ask the  Government to inform us whether
\nPondicherry was\t at  the  relevant  time  part\tof
\nIndian territories.  If the  Government inform\tus
\nthat  Pondicherry  was\tpart  of  India,  then\tno
\nquestion would\tarise  concerning  the\tpowers\tor
\njurisdiction of\t this court  in any of the matters
\nnow  before   us.  If  the  information\t from  the
\nGovernment is  that Pondicherry\t is not within the
\nterritories of\tIndia, that  will, in our opinion,
\nbe the
\n996<\/span>
\nproper time  to consider  whether  the\tCourt  can
\nstill give  the petitioners  the relief which they
\nask.\n<\/p>\n
     These  cases   involve  other   questions\tof
\ndifficulty and\timportance on  which it\t would\tbe
\nproper, in our view, to make a pronouncement after
\nthe Government of India’s answer to our request is
\nreceived. As  to none  of  these  are  indeed  any
\nquestion arising  in these  cases we  express  any
\nopinion\t at  this  stage.  We  wish,  however,\tto
\nobserve\t now  that  it\tseems  to  us  exceedingly
\nstrange that  if this  Court finds  that a party’s
\nfundamental right has been violated, from which it
\nwould follow  that that\t party has a right to move
\nthis  Court  under  Art.  32  and  to  obtain  the
\nnecessary writ,\t this Court  could refuse to issue
\nit  for\t the  reason  that  it\twould  thereby\tbe
\nstultifying itself.  If a  party is  entitled to a
\nwrit under  Art. 32,  then we  are not\taware that
\nthere is any discretion in the Court to refuse the
\nwrit  on  the  ground  that  the  writ\tcannot\tbe
\nenforced. Even\tassuming that  in view of Art. 142
\nof the\tConstitution, a\t writ cannot  be  enforced
\noutside India-as  to which we pronounce no opinion
\nnow-might is  not be  said with justification that
\nit is not necessary for us to be unduly pressed by
\nconsiderations\tof   the   difficulties\t  of   the
\nenforcement of\tthe writ  and  that  if\t would\tbe
\nreasonable for\tus to think that the Government of
\nIndia has  sufficient respect for this Court to do
\nall that  is in\t its power  to give effect to this
\nCourt’s order,\twhether\t or  not  there\t might\tbe
\ntechnical  difficulties\t  in  the   way\t  of   its
\nenforcement  by\t this  Court.  In  view\t of  these
\ndoubts, we  are unable,\t as at present advised, to
\nconcur in the opinion expressed in the Judgment of
\nthe majority  of the  learned Judges  constituting
\nthe Bench  that Art. 142 stands in the way of this
\nCourt issuing  a writ  under Art. 32 in this case.
\nWe would  reserve our  opinion till  a later stage
\nand till  it  becomes  necessary  to  express  any
\nopinion at all.\n<\/p>\n
997<\/span><\/p>\n
     BY COURT  : We  direct that the two questions
\nset out\t in the\t majority judgment be forwarded to
\nthe Union  of India  under the\tseal of this Court
\nfor submission of their answers.\n<\/p>\n
     On receipt\t of the\t answers to  the questions
\nthe appeals will be posted for further hearing.\n<\/p>\n
     The Judgment  of Gajendragadkar,  Wanchoo and
\nAyyangar, JJ.,\twas delivered  by Ayyangar  J. The
\nJudgment  of   Sarkar  and  Das\t Gupta,\t JJ.,  was
\ndelivered by Sarkar J.\n<\/p>\n
     AYYANGAR,\t J.-In\t  compliance   with    our
\ndirections the two questions were forwarded to the
\nUnion Government  and they submitted their answers
\nto them in the following terms:\n<\/p>\n
\t  “Question  No.  (1)-Whether  Pondicherry
\n     which was a former French Settlement is or is
\n     not at present comprised within the territory
\n     India as  specified in  Article 1(3)  of  the
\n     Constitution by virtue of the Articles of the
\n     Merger  Agreement\t dated\tOctober\t 21,  1954
\n     between the  Governments of  India and France
\n     and other\trelevant agreements  arrangements,
\n     acts and conduct of the two Governments.<\/p><\/blockquote>\n
     Answer-The French\tSettlement (Establishment)
\nof Pondicherry\tis at present not comprised within
\nthe territory  of India as specified in clause (3)
\nof Article  1 of the Constitution by virtue of the
\nAgreement  dated  the  21st  October,  1954,  made
\nbetween\t the   Government  of\tFrance\t and   the
\nGovernment of  India or\t by any other agreement or
\narrangement. By the aforesaid Agreement, dated the
\n21st  October,\t1954,  the  Government\tof  France
\ntransferred, and  the  Government  of  India  took
\nover, administration  of the  territory of all the
\nFrench\t Establishments\t   in\tIndia,\t including
\nPondicherry, with  effect from\tthe 1st\t November,
\n1954. A copy of the Agreement is enclosed. This is
\nexpressed to  be  a  de\t facto\ttransfer  and  was
\nintended to be
\n998<\/span>
\nfollowed up  by a  de jure  transfer. A\t treaty of
\nCession providing  for de  jure transfer  has been
\nsigned\tby   the  Government  of  France  and  the
\nGovernment of India on the 28th May, 1956, but has
\nnot been  so far  ratified in  accordance with the
\nFrench Law  as well  as\t in  accordance\t with  the
\narticle 31  of the Treaty. A copy of the Treaty is
\nalso enclosed.\tThe Government\tof India  has been
\nadministering  Pondicherry   under   the   Foreign
\nJurisdiction Act,  1947, on  the basis\tthat it is
\noutside India  and  does  not  form  part  of  the
\nterritory of India.\n<\/p>\n
\t  Question   No.(2)-If\t the   answer\tto
\n     question 1\t is that Pondicherry is not within
\n     the territory of India, what is the extent of
\n     the  jurisdiction\t exercised  by\tthe  Union
\n     Government\t over\tthe  said   territory  and
\n     whether it\t extends to  making all\t and every
\n     arrangement for its civil administration, its
\n     defence and in regard to its foreign affairs.
\n     The Government  of India might also state the
\n     extent of jurisdiction which France possesses
\n     over  the\t area  and  which  operates  as\t a
\n     diminution of  the jurisdiction  ceded to\tor
\n     enjoyed by the Government of India.
\n     Answer-The\t Government   of  India\t has  been
\nexercising full\t jurisdiction over  Pondicherry in
\nexecutive, legislative\tand  judicial  matters\tin
\naccordance with Foreign Jurisdiction Act. 1947. In
\ndoing so  it has followed the aforesaid Agreement.
\nThe Government\tof France  has not  also exercised
\nany executive,\tlegislative or\tjudicial authority
\nsince the said Agreement.\n<\/p>\n
     The jurisdiction  of the  Government of India
\nover   Pondicherry    extends\tto    making   all
\narrangements for  its  civil  administration.  The
\nadministration of  the territory  is being carried
\non under  the Foreign  Jurisdiction Act. 1947, and
\nin  accordance\t with  the  French  Establishments
\n(Administration) Order, 1954,
\n999<\/span>
\nand other  Orders made\tunder sections\t3 and 4 of
\nthat Act. The Government of India have been aiming
\nat conducting the administration of Pondicherry so
\nas to  conform to  the pattern\tof  administration
\nobtaining to  in India\tconsistent with\t the  said
\nAgreement. Accordingly\ta large\t number of Acts in
\nforce in  India\t have  already\tbeen  extended\tto
\nPondicherry.\n<\/p>\n
     The Government  of India  hold the\t view that
\nthe sole  responsibility in regard to arrangements
\nfor  the   defence  of\t Pondicherry  devolves\ton
\nthemselves.\n<\/p>\n
     Pondicherry has  no foreign  relations of its
\nown. No claims have been made by the Government of
\nFrance in  this matter\tnor have the Government of
\nIndia recognized the existence of any such claim.\n<\/p>\n
     The Government  of France\tdo not possess any
\nde facto jurisdiction over Pondicherry which would
\nimply any diminution of the jurisdiction exercised
\nby the Government of India.”\n<\/p>\n
     The  appeals  and\tthe  writ  petitions  were
\nthereafter posted for further hearing before us on
\nOctober 9, 1961.\n<\/p>\n
     Mr. N.  C. Chatterji-learned Counsel for Shri
\nMasthan Sahib, appellant in Civil Appeal No. 42 of
\n1961 and  petitioner in\t writ petition\tNo. 297 of
\n1960, urged  before us\ttwo contentions. The first
\nwas that the answer to the second question clearly
\nestablished   that   the   French   establishments
\nincluding Pondicherry  were part  of the territory
\nof  India,  having  been  acquired  by\tthe  Union
\nGovernment within  the meaning of Art. 1(3)(c) and
\nthat in view of this position it was not necessary
\nto consider  nor proper for us to accept the views
\nexpressed by  the Union Government in their answer
\nto the\tfirst question\twherein they had expressly
\nstated that  they  did\tnot  consider  the  French
\n“establishments” covered  by the agreement between
\nthe Union  Government and the Government of France
\ndated  October\t 21,  1954  as\tbeing  within  the
\nterritory of India within
\n1000<\/span>
\nArt.1(3) of the Constitution of India. Secondly, a
\npoint which  was necessarily involved in the first
\none just  set out-that this Court was not bound by
\nthe statement  of the  Government of  India in its
\nanswer to  Question  No.  1  and  that\tit  should
\ndisregard  such\t an  answer  and  investigate  for
\nitself on  the materials  placed before\t it as\tto
\nwhether Pondicherry  was part  of the territory of
\nIndia or not.\n<\/p>\n
     In\t support   of  the  first  submission  Mr.
\nChatterji  placed  considerable\t reliance  on  the
\npassage in our judgment rendered on April 28, 1961
\nreading:\n<\/p>\n
     “Still if\tthe  extent  of\t the  jurisdiction
\n     vested  in\t  the  Union   Government  by  the
\n     arrangements entered  into\t between  the  two
\n     Governments virtually  amounts to\ta transfer
\n     of sovereignty  for every\tpractical purpose,
\n     it would  be possible  to contend that such a
\n     transfer or  cession was so incompatible with
\n     the existence of any practical sovereignty in
\n     the French\t Government as to detract from the
\n     surrender\tor   transfer  being   other  than
\n     complete.”<\/p><\/blockquote>\n
     The argument  was\tthat  the  answer  to  the
\nsecond question\t showed (1)  positively\t that  the
\nGovernment    of    India    exercised\t  complete
\njurisdiction   over    the    territory-executive,
\nlegislative  and  judicial,  its  authority  being
\nplenary and extending to the making of laws. Their
\nexecution and  the administration  of justice with
\ncomplete  power\t  over\tits  defence  and  foreign
\naffairs and  (2) negatively that the Government of
\nFrance possessed no authority in the territory, so
\nmuch so that it could not be predicated that there
\nhad  been   any\t retention  of\teven  a\t vestigial
\nsovereignty to\tdetract from  the completeness\tof
\nthe  transfer.\t In  the   circumstances,  learned
\nCounsel urged that he was justified in inviting us
\nto ignore  or disregard\t the answer  to the  first
\nquestion and  instead answer  the question  as\tto
\nwhether these  French establishments  were  within
\nthe territory  of India or not on the basis of the
\nsecond question.\n<\/p>\n
1001<\/span><\/p>\n
     Having regard  to the nature of this argument
\nit is necessary to state briefly the circumstances
\nin which  we felt  it necessary\t to frame  the two
\nquestions that we did. At the stage of the hearing
\nof the petitions on the first occasion, notice was
\nissued to  the Union  Government and  the  learned
\nSolicitor General  appearing in\t response  to  the
\nnotice did  not convey to us any definite views on
\nthe  part   of\tthe   Government  as   to  whether
\nPondicherry was\t or was\t not considered by them to
\nbe part\t of the territory of India but invited the
\nCourt to decide the question on the materials that
\nmight be  placed the  parties before  us. At  that
\nstage therefore\t we were not quite certain whether
\nGovernment would  be prepared  to  make\t a  formal
\nstatement about\t their views  on this question. If
\ntherefore the  Government were\tinclined still\tto
\nleave the  matter to the Court, we desired to have
\ncomplete information  as to  the factual  position
\nregarding the  government of the territory. It was
\nin view\t of that  possibility that  Question No. 2<\/span>
\nwas framed.  It\t was,  of  course,  possible  that
\nGovernment might  communicate their  views to  the
\nCourt and with a view to enable this to be done we
\nframed Question\t No.  1.  In  these  circumstances
\nnothing is  gained by  reference to the passage in
\nour judgment  dated April  28, 1961.  The  passage
\nextracted is  certainly not  an authority  for the
\nposition as  to whether\t if  Question  No.  1  was
\nanswered, the  Court could  properly consider  any
\nimplications or\t inferences arising  on the answer
\nto Question No. 2.\n<\/p>\n
     We shall  therefore proceed  to consider  the
\nprincipal question  that  arises  at  this  stage,
\nviz., whether  the answer  of  the  Government\tis
\nreply to  a specific  and formal  enquiry  by  the
\nCourt that  it did  not consider a particular area
\nto have\t been “acquired”  by the Indian Government
\nand therefore not a part of the territory of India
\nwas binding  on the  Court or  not.  A\tnumber\tof
\ndecisions of  the English and Australian Courts in
\nwhich the point
\n1002<\/span>
\nhas been  considered were  placed before us and we
\nshall proceed  to refer\t to the\t more important of
\nthem.\n<\/p>\n
     In Duff  Development Company v. Government of
\nKelantan(1) the question related as to whether the
\nSultan of Kelantan was the ruler of an independent
\nsovereign State,  such that  the Courts in England
\nhad  no\t  jurisdiction\tover  the  Sultan  or  the
\nGovernment of  that State.  The Secretary of State
\nfor the Colonies who was requested by the Court to
\nfurnish information  as regards\t the status of the
\nruler and of the Government stated that the Sultan
\nwas the\t head of  an independent  sovereign state.
\nThe  binding   character  of  this  statement  was
\nhowever questioned  and it  was argued\tbefore the
\nHouse of Lords on foot of certain public documents
\nthat Kelantan  was  merely  a  dependency  of  the
\nBritish Government  and not  a sovereign State. On
\nthe other  side; it  was pressed  upon the  House,
\nthat the  statement of\tthe Secretary of State was
\nbinding and this latter submission was unanimously
\naccepted by  the House.\t In doing so Viscount Cave
\nobserved:\n<\/p>\n
\t  “If  after  this  definite  statement\t a
\n     different view were taken by a British Court,
\n     an undesirable  conflict might  arise; and in
\n     my opinion\t it is\tthe duty  of the  Court to
\n     accept the\t statement  of\tthe  Secretary\tof
\n     State thus\t clearly and  positively  made\tas
\n     conclusive upon the point.”\n<\/p><\/blockquote>\n
Viscount Finlay expressed himself thus:\n<\/p>\n
\t  “It has  long been  settled that  on any
\n     question of  the status  of any foreign power
\n     course is\tthat the Court should apply to His
\n     Majesty’s Government,  and that  in any  such
\n     matter it\tis bound to act on the information
\n     given to  them through the proper department.
\n     Such information is not in the nature of
\n1003<\/span>
\n     evidence; it  is a statement by the Sovereign
\n     of this  country through one of his Ministers
\n     upon a  matter which is peculiarly within his
\n     cognizance.”\n<\/p><\/blockquote>\n
Lord Sumner said:\n<\/p>\n
\t  “Where such  a statement  is forthcoming
\n     no other evidence is admissible or needed.”
\nThere is  one other  decision of the House of Lord
\nto which reference may usefully be made-Government
\nof the\tRepublic of  Spain v. Arantzazu, Mendi.(1)
\nThe question  for  decision  was  whether  it  was
\nGeneral\t  Franco’s   Government\t  that\t was   the
\nGovernment in  Spain or the Republican Government.
\nThe Secretary of State for Foreign Affairs had, in
\na formal  communication to the Court in reply to a
\nletter forwarded  under the  direction of Bucknill
\nJ.,  stated  that  His\tMajesty’s  Government  had
\nrecognised  the\t  Nationalist  Government  as  the
\nGovernment which had administrative control over a
\nlarge portion  of Spain\t and particularly over the
\nBasque Provinces  wherein the ship, title to which
\nwas in\tquestion, had been registered. Lord Wright
\nin his speech said:\n<\/p>\n
     “The Court\t is, in\t my opinion, bound without
\n     any qualification\tby the\tstatement  of  the
\n     Foreign office,  which is\tthe organ  of  His
\n     Majesty’s Government  for this  purpose in\t a
\n     matter of\tthis nature. Such a statement is a
\n     statement of  fact, the contents of which are
\n     not open  to be  discussed by  the\t Court\ton
\n     grounds of law.”<\/p><\/blockquote>\n
     No doubt, these decisions were in relation to
\nthe status  of or recognition by the Government of
\nforeign sovereign  and are  therefore not  ad idem
\nwith the  point which now arises for consideration
\nviz., whether  a particular  piece of territory is
\nor is  not part\t of  the  territory  of\t India.\t A
\nstatement by  Government in  relation to a similar
\nquestion
\n1004<\/span>
\ncame up before the Court of Appeal in Fagernes (1)
\nThe question  for the  Court’s\tconsideration  was
\nwhether the  Bristol Channel,  particularly at the
\npoint where  a collision  was stated to have taken
\nplace, was  or was  not part of British territory.
\nHill J. before whom an action for damage caused by
\nthe alleged collision came up held that the waters
\nof  the\t Bristol  Channel  were\t part  of  British
\nterritory and therefore within the jurisdiction of
\nthe High  Court. The  defendants appealed  to  the
\nCourt of  Appeal and  at that  stage the Attorney-
\nGeneral appeared  and  in  response  to\t a  formal
\nenquiry by the Court as to whether the place where
\nthe collision  was stated  to  have  occurred  was
\nwithin the  realm of  England, replied\tthat  “the
\nspot  where  the  collision  is\t alleged  to  have
\noccurred is  not within\t the limits  to which  the
\nterritorial sovereignty\t of His\t Majesty extends.”
\nOn the basis of this statement the Court of Appeal
\nunanimously reversed  the judgment  of Hill  J. An
\nargument was  raised before  the Court\tas regards
\nthe binding  character of  the\tstatement  by  the
\nAttorney-General and  in regard\t to this Akin L.J.
\nsaid:\n<\/p>\n
     “I consider  that statement  binds the Court,
\n     and constrains it to decide that this portion
\n     of the  Bristol Channel is not within British
\n     jurisdiction, and\tthat the  appeal  must\tbe
\n     allowed. I think that it is desirable to make
\n     it clear  that this  is not  a decision  on a
\n     point of  law,  and  that\tno  responsibility
\n     rests upon\t this Court  save that of treating
\n     the statement  of the  Crown  by  its  proper
\n     officer as conclusive.”\n<\/p><\/blockquote>\n
Lawrence L.J. observed:\n<\/p>\n
     “It is the duty of the Court to take judicial
\n     cognizance\t of   the  extent  of  the  King’s
\n     territory\tand,   if  the\t Court\titself\tis
\n     unacquainted  with\t  the\tfact   whether\t a
\n     particular place  is or  is  not  within  the
\n     King’s territory,\tthe Court  is entitled\tto
\n     inform itself of that fact by making
\n1005<\/span>
\n     such inquiry  as, it  considers proper. As it
\n     is highly\texpedient, if  not essential, that
\n     in a  matter of  this kind the Courts, of the
\n     King should act in unison with the Government
\n     of the  King, this Court invited the Attorney
\n     General to\t attend\t at  the  hearing  of  the
\n     appeal and at the conclusion of the arguments
\n     asked him\twhether the Crown claimed that the
\n     spot where\t the collision occurred was within
\n     the territory  of\tthe  King.  The\t Attorney-
\n     General in\t answer to  this  inquiry,  stated
\n     that he  had communicated\twith the Secretary
\n     of State for Home Affairs, who had instructed
\n     him to  inform the Court that “the spot where
\n     this collision is alleged to have occurred is
\n     not  within   the\t limits\t  to   which   the
\n     territorial  sovereignty\tof   His   Majesty
\n     extends.” In  view of this answer, given with
\n     the authority  of the  Home Secretary  upon a
\n     matter  which   is\t peculiarly   within   the
\n     cognizance of  the Home  office,  this  Court
\n     could  not,   in  my   opinion,  properly\tdo
\n     otherwise than hold that the alleged tort was
\n     not committed  within the jurisdiction of the
\n     High Court”.\n<\/p><\/blockquote>\n
Bankes L.J.,  though he agreed with his colleagues
\nin allowing  the appeal, however struck a slightly
\ndifferent note saying:\n<\/p>\n
     “This information\twas given  at the instance
\n     of the  Court, and for the information of the
\n     Court. Given under such circumstances, and on
\n     such a  subject, it  does not  in my  opinion
\n     necessarily bind  the Court in the sense that
\n     it is under an obligation to accept it”<\/p><\/blockquote>\n
     The  entire  matter  is  thus  summarised\tin
\nHalsbury’s Laws\t of England, Third Edition, Volume
\n7:\n<\/p>\n
     “There  is\t  a  class   of\t facts\twhich  are
\n     conveniently  termed  ‘facts  of  state’.\tIt
\n     consists  of   matters  and   questions   the
\n     determination of which is solely in the hands
\n     of the Crown or
\n1006<\/span>
\n     the government,  of which\tthe following  are
\nexamples:\n<\/p><\/blockquote>\n
     (1)  ………………………………….
\n…….\n<\/p><\/blockquote>\n
     (2)     Whether  a\t particular  territory\tis
\n\t  hostile  or\tforeign,  or   within  the
\n\t  boundaries of a particular state.”\n<\/p><\/blockquote>\n
Mr. Chatterji,\thowever, invited  our attention to
\ncertain observations contained in two decisions of
\nthe High  Court of  Australia-Jolley v. Mainka and
\nFrost v.  Stevenson (2).In  both these\tcases  the
\npoint  involved\t was  as  to  the  status  of  the
\nterritory  of\tNew  Guinea  which  Australia  was
\nadministering  as   mandatory  territory  under\t a
\nmandate from  the League of Nations. There are, no
\ndoubt, observations  in these  cases dealing  with
\nthe meaning  of the  word ‘acquired’  in s. 122 of
\nthe Commonwealth  of Australia\tAct, but the point
\nto  be\tnoticed\t however  is  that  there  was\tno
\nstatement by the Government of the Commonwealth of
\nAustralia as  to whether  this area was or was not
\npart of\t the territory\tof Australia,  such as\twe
\nhave in\t the present  case. We\tdo not, therefore,
\nconsider that  these observations  afford  us  any
\nassistance for the solution of the question before
\nus.\n<\/p>\n
     Both Mr.  Chatterji and Mr. Viswanatha Sastri
\nlearned Counsel who appeared for Sivarama Reddiar,
\nthe appellant  and petitioner  in the other cases,
\nstressed the fact that what we were called upon to
\ndecide\twas   the  meaning   of\t  the\texpression
\n‘acquired’ in  Art. 1  (3) (c) of the Constitution
\nand that  in the  case of  a written  constitution
\nsuch as\t we had\t to construe, jurisdiction of this
\nCourt was not to be cut down and the enquiry by it
\nlimited by reasons of principles accepted in other
\njurisdictions.\tIn   particular,  learned  Counsel
\nstressed the fact that it would not be
\n1007<\/span>
\nproper for  the Court  to ignore  patent facts and
\nhold itself  bound by  the statement of Government
\nin cases  where, for  instance, the  Government of
\nthe day for reasons of its own desiring to exclude
\nthe jurisdiction  of this Court denied that a part
\nof territory  which patently  was within Art. 1(3)
\nwas within  it. It  is not  necessary  for  us\tto
\nexamine\t what\tthe  position\twould  be  in  the
\ncontingency visualized,\t but assuredly\tit is  not
\nsuggested that\tthe case  before us  falls  within
\nthat category.\tThe proposition\t laid down  in the
\nEnglish decisions  that a  conflict is\tnot to\tbe
\nenvisaged between the Executive Government and the
\njudiciary appears to us to rest on sound reasoning
\nand except  possibly in the extreme cases referred
\nto by  the learned  Counsel, the  statement of the
\nGovernment must\t be held  binding on the Court and
\nto be given effect to by it.\n<\/p>\n
     There is one other matter which was specially
\npressed upon  us during\t the course of argument to
\nwhich is  necessary to\trefer. The  submission was
\nthat the answer by the Union Government to the two
\nquestions  were\t  really  contradictory\t and  that
\nwhereas the  answer to the second question made it
\nout  that   the\t French\t establishments\t had  been
\nacquired and  were part of the territory of India,
\nthe  Government\t had  in  relation  to\tthe  first
\nquestion made  a contradictory\tanswer. We  do not
\nconsider  this\targument  well-founded.\t In  cases
\nwhere the  only fact  available is  the\t de  facto
\nexercise of complete sovereignty by one State in a
\nparticular area,  the sovereignty  of  that  State
\nover that area and the area being regarded as part
\nof the\tterritory of  that State would prima facie
\nfollow. But  this would\t apply\tnormally  only\tto
\ncases where  sovereignty and control was exercised
\nby unilateral  action. Where  however the exercise
\nof power and authority and the right to administer
\nis referable  to an  agreement between two States,
\nthe question  whether  the  territory  has  become
\nintegrated with and become part
\n1008<\/span>
\nof the\tterritory of the State exercising de facts
\ncontrol depends wholly on the terms upon which the
\nnew  Government\t  was  invited\t or  permitted\tto
\nexercise  such\t control  and  authority.  If  the
\ninstruments evidencing\tsuch agreements\t negatived
\nthe implication\t arising from the factual exercise
\nof Governmental authority then it would not follow
\nthat there is an integration of the territory with
\nthat  of  the  administering  power  and  that\tis
\nprecisely what\thas happened  in the present case.
\nAs annexures  to their\treply the Union Government
\nhave included  The Treaty of Cession dated May 28,
\n1956, which  is a  sequel to  the agreement  dated
\nOctober 21,  1954, transferring\t the powers of the
\nGovernment  of\t the  French   Republic\t  to   the
\nGovernment of  the Indian  Union. Under the terms,
\nthis  Treaty   would  become  operative\t and  full
\nsovereignty  as\t  regards  the\tterritory  of  the
\nestablishments of  Pondicherry, Karikal,  Maha and
\nYanam would be ceded to the Indian Government only
\nwhen the  treaty  comes\t into  force.  It  is  not
\nnecessary to  refer to\tall the\t clauses  of  this
\nTreaty except  the one\twhich stipulates  that\tit
\nwould come  into force\ton the day of ratification
\nby the two Governments concerned. According to the
\nConstitution  of  France  an  Act  of  the  France
\nAssembly is  required for the validity of a Treaty
\nrelating to  or involving  the cession\tof  French
\nterritory. It is common ground that the Treaty has
\nnot been  ratified  yet.  The  resulting  position
\ntherefore is  that by  the agreement dated October
\n21,1954, though\t complete  administrative  control
\nhas been  transferred to  the Government of India,
\nthis transfer  of control  cannot be  equated to a
\ntransfer  of  territory,  that\tbeing  the  common
\nintention of the parties to that agreement. Unless
\na ratification\ttakes place there would legally be
\nno transfer of territory and without a transfer of
\nterritory there\t would not be in the circumstances
\nan   “acquisition    of\t  territory”,\twith   the
\nconsequence that  at present Pondicherry has to be
\ntreated as not part
\n1009<\/span>
\nof the\tterritory of  India. It\t is unnecessary to
\nconsider what  the position would have been if the
\nUnion Government had, notwithstanding the terms of
\nthe   Treaty,\t treated   the\t  former    French
\nestablishments\tas   having  become  part  of  the
\nterritory of India.\n<\/p>\n
     There was\tone minor  submission made  by Mr.
\nViswanatha Sastri  to which  a\t passing reference
\nmay be made. He suggested that the term “territory
\nof India” in Art. 142 might not represent the same
\nconcept as  ‘the territory  of India’  within Art.
\n1(3) and  that in the context of Art. 142 the term
\n‘territory of  India might include every territory
\nover which  the Government  of the Union exercised
\nde facto  control. We  are not\timpressed by  this
\nargument. The  term ‘territory\tof India’ has been
\nused in\t several Articles  of the Constitution and
\nwe are\tclearly\t of  the  opinion  that\t in  every
\nArticle where  this  phraseology  is  employed\tit
\nmeans the territory of India for the time being as
\nfalls within  Art. 1(3) and that the phrase cannot
\nmean different territories in different Articles.\n<\/p>\n
     We have already dealt with the question as to
\nwhat the  effect on  the  maintainability  of  the
\nappeals and  the petitions would be if Pondicherry
\nwere not  part of  the territory of India. In view
\nof Pondicherry\tnot being  within the territory of
\nIndia we  hold that this Court has no jurisdiction
\nto entertain  the appeals.  The appeals\t therefore
\nfail and  are dismissed.  The writ  Petitions must
\nalso fail  and be  dismissed for  the reason  that
\nhaving regard  to the  nature of the relief sought
\nand the\t authority against  whose orders relief is
\nclaimed\t they\ttoo  must   fail.  They\t are  also
\ndismissed. We  would  add  that\t these\tdismissals
\nwould not include the petitioners from approaching
\nthis  Court   if  so  desired,\tin  the\t event\tof
\nPondicherry becoming  part  of\tthe  territory\tof
\nIndia. In  the peculiar circumstances of this case
\nwe  direct   that  that\t the  parties  bear  their
\nrespective costs.\n<\/p>\n
1010<\/span><\/p>\n
     Before leaving  this case, we desire to point
\nout that  the  situation  created  by  the  French
\nestablishments not  being part of the territory of
\nIndia is  somewhat anomalous. Thier administration
\nis being  conducted by the extension of enactments
\nin India  by virtue  of the power conferred by the
\nForeign Jurisdiction  Act. We have had occasion to
\npoint out  that though\ttechnically the\t areas are
\nnot part  of Indian  territory, they  are governed
\npractically as\tpart of\t India. But  so far as the
\norders\tof   the  courts  and  other  authorities-
\njudicial and  quasi-judicial within  that area are
\nconcerned, the\tSuperior Courts in India have not,
\nsubject to  what we  have stated  as  regards  the
\nlimited jurisdiction  of the  court, any appellate
\nor revisional  jurisdiction  over  them\t and  this
\nmight in a large number of cases lead to injustice
\nand a sense of grievance. There is enough power in
\nGovernment even\t at the\t stage\tof  the\t de  facto
\ntransfer to  remedy the\t situation. By appropriate
\naction under  the Foreign  Jurisdiction Act, or by
\nParliamentary Legislation under the entry ‘Foreign
\nJurisdiction’ the  appellate Jurisdiction  of  the
\nHigh Court  or of  this Court  could  be  enlarged
\nunder Arts.  225 and 138 [1] respectively so as to
\nafford an  adequate remedy  for the inhabitants of
\nthese areas.  To this  aspect  of  the\tmatter\twe
\nconsider that  the attention  of Government should
\nbe drawn.\n<\/p>\n
     SARKAR, J.-On the earlier occasion when these
\ncases came  up before  this  Court,  we\t postponed
\nfurther hearing\t of  them  till\t we  received  the
\nanswers\t of   the  Government\tof  India  to  two
\nquestions which\t we then  referred  to\tit.  These
\nquestions   substantially    were,   (a)   whether
\nPondicherry is or is not within the territories of
\nIndia and  (b) if  it is  not, the  extent of  the
\njurisdiction exercised\tby  the\t Union\tGovernment
\nover it\t and the  jurisdiction which  France still
\npossesses in  regard to\t it. These  questions were
\nput because  considerable doubt was felt as to the
\nreal status of Pondicherry. If it
\n1011<\/span>
\nwas a  foreign territory,  no appeal  could lie to
\nthis Court under Art. 136 of the Constitution from
\nany tribunal  in  Pondicherry  and  two\t of  these
\nmatters were  such appeals.  The other two matters
\nwere petitions\tasking for  writs against  certain
\nauthorities in\tPondicherry and\t the majority held
\nthat no writ could issue to a foreign territory in
\nview of Art. 142 of the Constitution and therefore
\nfor the\t purposes of  these petitions  also it was
\nnecessary to  ascertain the status of pondicherry.
\nWe however  then felt  some difficulty\tabout  the
\nquestion whether we could refuse to issue writs to
\nan officer  of the Government of India outside the
\nterritory of  India and expressed our inability to
\nconcur in  the opinion\tof the\tmajority. We  said
\nthat the  proper time  to  discuss  that  question
\nwould be  when\ton  receipt  of\t the  Government’s
\nanswers to  our questions,  it had to be held that
\nPondicherry was\t a foreign  territory and reserved
\nour final decision on the question till then.\n<\/p>\n
     The Government’s  answers\tto  our\t questions
\nhave now  been received.  On the  basis\t of  these
\nanswers, for  the reasons  hereafter mentioned, it
\nhas to\tbe held\t that  Pondicherry  is\ta  foreign
\nterritory. We,\ttherefore, now\twish to\t say a few
\nwords on  the question\ton which  we reserved  our
\nopinion on the former occasion. The opinion of the
\nmajority no  doubt prevails  in spite  of what\twe
\nshall say. Before we discuss the question which we
\nreserved we  desire to\tobserve in  regard to  the
\nappeals that  it must  be held\tthat they  are not
\nmaintainable   as   Pondicherry\t  is   a   foreign
\nterritory.\n<\/p>\n
     Now, the writs are sought to quash the orders
\nof  a\tquasi-judicial\tauthority  functioning\tin
\nPondicherry  on\t  the  ground  that  they  violate
\ncertain fundamental rights of the petitioners This
\nauthority however  is an officer of the Government
\nof India.  How far  writs can be issued under Art.
\n32 of  the Constitution of India to quash a quasi-
\njudicial order even if made in India, itself a
\n1012<\/span>
\nquestion of considerable difficulty on which there
\nhas been  a difference\tof opinion  in this Court.
\nThat  question\t was  recently\t discussed  before
\nanother Bench  but the\tjudgment in  that case has
\nnot yet\t been delivered.  For the  present purpose
\nhowever we  will assume\t that writs  can be issued
\nunder Art. 32 to quash a quasi-judicial order.\n<\/p>\n
     The First observation that we wish to make is
\nthat it\t has now  been finally held by this Court,
\ndealing with  an application  under Art.  32  that
\n“the right  to\tmove  this  Court  by  appropriate
\nproceedings for\t the  enforcement  of  the  rights
\nconferred by  Part  III\t of  the  Constitution\tis
\nitself\t a    guaranteed    right”:    Kavalannara
\nKottarthill Kochunni v. The State of Madras. (1) A
\nright to  move this Court by a petition under Art.
\n32 is,\ttherefore, a fundamental right. That being
\nso, a  right to\t obtain a  writ when  the petition
\nestablishes a  case for\t it,  must  equally  be\t a
\nfundamental right. For, it would be idle to give a
\nfundamental right  to move  this Court\tand not\t a
\nsimilar right  to the  writ the issue of which the
\npetition  might\t  clearly  justify.   If  then\t a
\nfundamental right  to a\t writ is  established,-and
\nthat is\t the assumption\t on which we are examining
\nthe present  question-the  party  who  establishes
\nsuch right must be entitled ex debito justitiae to
\nthe issue  of the necessary writ. There would then
\nbe  no\tpower  in  the\tCourt  to  refuse  in  its
\ndiscretion to issue it.\n<\/p>\n
     But it  is said  that if a writ was issued in
\nthe present case, it could not in view of Art. 142
\nwhich says  that an  order of  this Court shall be
\nenforced throughout  the territory  of\tIndia,\tbe
\nenforced Pondicherry.  Let us  assume that  is so.
\nThen it\t is said  that if  the Court were to issue
\nthe writ  it would  only be stultifying itself and
\nshould not  therefore issue  it. We  are unable to
\naccede to  this contention.  If a  party has  been
\ngiven by the
\n1013<\/span>
\nConstitution a\tfundamental right to a writ, there
\nis no  power in\t the Court  to refuse  that right.
\nSupposed practical considerations of incapacity to
\nin force  the writ  issued cannot  be  allowed\tto
\ndefeat the provisions of the Constitution.\n<\/p>\n
     No authority  has been cited to us in support
\nof the\tproposition that  when a party in entitled
\nas of  right to\t an order,  a court  can refuse to
\nmake that  order  on  the  ground  that\t it  would
\nthereby be  stultifying itself.\t So far as we have
\nbeen able  to ascertain orders are refused on this
\nground when  the matter\t is one for the discretion
\nof the\tCourt.\tSuch  cases  have,  for\t instance,
\nfrequently occurred in proceedings relating to the
\nissue of  injunctions, to  grant or  not to  grant
\nwhich is  well known,  in the  discretion  of  the
\nCourt.\tThe   discretion  has\tno  doubt   to\tbe
\njudicially exercised  as  indeed  all  discretions
\nhave, but none the less the right to the relief is
\nin the\tdiscretion of  the Court  as opposed  to a
\nrelief to  which a  party is  entitled\tex  debito
\njustitiae, a distinction which is well understood.
\nThus, dealing  with a  case of\tthe  issue  of\tan
\ninjunction restraining\ta person  from. proceeding
\nwith an\t action in  a foreign  court, Jessel  M.R.
\nObserved, in  In re  International Pulp\t and Paper
\nCo. Ltd.(1),  “Therefore, as  to a  purely foreign
\ncountry, it  is of  no use  asking for\tan  order,
\nbecause\t the   order  cannot  be  enforced”.  Take
\nanother case.  In England  an information  in  the
\nnature of  quo warranto\t is not issued as a matter
\nof course  as a\t matter\t of  course  [R.V.  Stacey
\n(1785) I.T.B  1] and  therefore the  courts  there
\nrefused to  issue it  when in information would be
\nfutile in  its results.\t Halsbary Laws\tof England
\n(3rd ed.)  Vol. 11 p. 148. So in Reg. v Fox(2) the
\nCourt refused  to issue\t the information  for  the
\nreason that  the person sought to be removed by it
\ncould be  reappointed at  once. These  however are
\ncases in  which a  Court would\tbe inclined not to
\nmake
\n1014<\/span>
\na discretionary order on the ground that the Court
\nwould thereby  be  stultifying\titself.\t Instances
\nmight be  multiplied but  it is\t unnecessary to do
\nso. We\tdo not\tthink that  the principle of these
\ncases can  be applied  where a court has no option
\nbut to\tmake the  order\t which\twe  think  is  the
\npresent case.  It would clearly be less applicable
\nto a  case like\t the present  where, as\t we  shall
\nimmediately show,  it would be wrong to think that
\nthe order would not be carried out.\n<\/p>\n
     Lastly, can  we be\t certain  that\tthe  Court
\nwould be stultifying itself by issuing the writ in
\nthis case  ? That  would be  only if  our order is
\nsure to be ignored. We think that this Court would
\nbe fully justified in proceeding on the basis that
\nany order  made by  it would be carried out by any
\nofficer of  the Government  of India to whom it is
\ndirected wherever  he may  be, out  of respect for
\nthe Constitution  and this  Court and this without
\nrequiring  to\tbe  forced   to\t do  so.  In  this
\nconnection  the\t  case\tof   R.v.  Speyer,  R.\tv.
\nCassel(1) is  of interest. There Speyer and Cassel
\nhad been called upon by the court by rules nisi to
\nshow cause why an information in the nature of quo
\nwarranto should\t not be\t exhibited against them to
\nshow by\t what authority\t they respectively claimed
\nto be  members of  His Majesty’s Privy Council for
\nGreat Britain.\tSpeyer and Cassel were naturalised
\nBritish subjects  and  the  question  was  whether
\nunder certain  statutes they were not disqualified
\nfrom being  appointed to the Privy Council. One of
\nthe arguments  on behalf  of the  respondents  was
\nthat the  court would  be powerless  to enforce\t a
\njudgment of  ouster for\t it could  not prevent the
\nimmediate reinstatement\t of  the  names\t of  these
\npersons in  the roll  of Privy\tCouncillors if the
\nKing though  fit to  alter  it.\t The  answer  that
\nReading C.J. gave to this argument was
\n1015<\/span>
\n“Although it may be interesting and useful for the
\npurpose of  testing  the  propositions\tnow  under
\nconsideration to assume the difficulties suggested
\nby the\tAttorney-General, none\tof them\t would\tin
\ntruth occur. This is the King’s Court; we sit here
\nto administer justice and to interpret the laws of
\nthe realm in the King’s name. It is respectful and
\nproper to  assume that once the law is declared by
\na competent judicial authority it will be followed
\nby the Crown.” The other members of the Bench also
\ntook  the  same\t view,\tLush  J.  observing,  “The
\nconsequences he suggests are argumentative and not
\nreal, and  we cannot  regard them as fettering the
\nexercise of our jurisdiction”. Now this was a case
\nof a  discretionary order. Even so, the Court felt
\nthat it\t would be  wrong to  stay its hand only on
\nthe ground  that it could not directly enforce its
\norder. This salutary principle has been acted upon
\nin our\tcountry by  Das J.  who later  became  the
\nChief Justice  of this\tCourt, in In re Banwarilal
\nRoy(1) There  Das J.  issued an information in the
\nnature of  quo warranto\t in spite of the fact that
\nhe could  not command  the Governor  of Bengal\tto
\ncomply with  his order\twhich might therefore have
\nbecome futile.\tWe think  it  is  a  very  healthy
\nprinciple and  should be followed. We do not think
\nthat we can allow our powers for the protection of
\nfundamental   rights\tto    be    fettered\tby
\nconsiderations of  the enforcement  of orders made
\nby us;\twe must\t assume that  the  authorities\tin
\nPondicherry will willingly carry out our order.\n<\/p>\n
     We turn now to the other questions arising on
\nthe   Government’s    answers.\t Pondicherry   was
\nadmittedly  a\tFrench\tpossession  but\t under\tan
\nagreement with\tFrance, the Government of India is
\nnow   administering   it.   The\t  Government   has
\ndefinitely  stated   that   Pondicherry\t  is   not
\ncomprised
\n1016<\/span>
\nwithin the  territory of  India. It  has also said
\nthat it\t has full  jurisdiction\t over  Pondicherry
\nunder  that  agreement,\t that  the  liability  for
\ndefence\t of   Pondicherry  is\ton  it\t and  that
\nPondicherry  has  no  foreign  relations.  It  has
\nfurther said  that France  does not possess any de
\nfacto jurisdiction  over Pondicherry  which  would
\nimply a\t diminution of\tthe jurisdiction exercised
\nby it.\n<\/p>\n
     It was contended that we are not bound by the
\nGovernment’s answer to the first question, namely,
\nthat Pondicherry  is outside India and that on the
\nbasis of  the answer  to the  second  question\twe
\nshould hold,  in spite\tof the\tGovernment’s view,
\nthat Pondicherry is a part of Indian territory. It
\nwas said  that since  India  had  admittedly  full
\njurisdiction over Pondicherry and France exercised
\nnone, it  must be  held\t the  India  has  acquired
\nsovereignty over  it and  that it  had, therefore,
\nbecome Indian  territory by  acquisition.  We  are
\nentirely unable\t to  accept  this  contention.\tWe
\nthink  that  we\t are  bound  by\t the  Government’s
\ndecision at least in a case where we have referred
\nto it  for our guidance. That is the view taken in
\nEngland and  it is  a view which is based on sound
\nprinciple: see\tDuff Development  Co. v. The Govt.
\nof Kelantan.(1)\t Any other  view  would\t create\t a
\nchaos and  we cannot  be a party to it. We may say
\nthat by\t a treaty.  as in  the present case, India
\nmay  acquire  full  jurisdiction  over\ta  foreign
\nterritory  which   under  the\tsame  treaty   may
\nnonetheless remain a foreign territory.\n<\/p>\n
     It was  contended that this would be absolute
\nsurrender to the executive Government; that such a
\nview would enable the Government when it so liked,
\nto disown a territory which was patently a part of
\nIndia so  that it might act therein as it liked in
\ncomplete disregard  of the  laws and  without  any
\ncheck from  any court  including this  Court. This
\ncontention,  to\t use  the  words  of  Luch  J.\tin
\nSpeyer’s case(2)is “argumentative and not real”.\n<\/p>\n
1017<\/span><\/p>\n
We  cannot   imagine  that   in\t a  democracy  any
\nGovernment would ever act in the way suggested and
\nwe are\tsure no\t Government of\tthis country  will
\never do so.\n<\/p>\n
     Furthermore, the contention has no foundation
\nwhatever and  is wholly\t imaginary. It is the duty
\nof a  court to\ttake judicial notice of the extent
\nof the\tterritory of  its own State. Section 57 of
\nthe Evidence  Act requires that. Therefore, if the
\nfact is\t patent that a certain territory is within
\nIndia, the  courts will take judicial notice of it
\nand there  will be  no occasion\t to refer  to  the
\nGovernment for\tany information\t regarding it.\tIt
\nmay however  be that  in certain circumstances the
\nfact is\t not patent  but even then it appears that
\nit will\t be the\t duty of  a court to take judicial
\nnotice and it does so by requesting the Government
\nto enlighten  it on  the point.\t So Lawrence L. J.
\nsaid in Fagernes (1), “It is the duty of the Court
\nto take\t judicial cognisance  of the extent of the
\nKing’s territory  and,\tif  the\t Court\titself\tis
\nunacquainted with  the fact  whether a\tparticular
\nplace is  or is\t not within  the King’s territory,
\nthe Court  is entitled\tto inform  itself of  that
\nfact  by  making  such\tenquiry\t as  it\t considers
\nnecessary.” It is only in cases where the Court is
\nnot aware  of  the  facts  that\t the  question\tof
\nreferring  to\tthe  Government\t  will\tarise  and
\ntherefore no occasion can possible arise where the
\nGovernment might  have the  chance of distorting a
\npatent fact.\n<\/p>\n
     This is  all that\twe desire  to say.  As the
\nmajority of  the learned  Judges of the Bench have
\ntaken a\t different view, the order to be made will
\nfollow their decision.\n<\/p>\n
1<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India N. Masthan Sahib vs Chief Commissioner, Pondicherry on 8 December, 1961 Equivalent citations: 1962 AIR 797, 1962 SCR Supl. (1) 981 Author: N R Ayyangar Bench: Gajendragadkar, P.B., Sarkar, A.K., Wanchoo, K.N., Gupta, K.C. Das, Ayyangar, N. Rajagopala PETITIONER: N. MASTHAN SAHIB Vs. RESPONDENT: CHIEF COMMISSIONER, PONDICHERRY DATE OF JUDGMENT: 08\/12\/1961 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-150530","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nN. 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