LT. COL. KHAJOOR SINGH versus THE UNION OF INDIA & ANOTHER.

Citation: [1961] 2 S.C.R. 828 · Decided: 01-12-1960 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Dismissed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

828 
SUPREME COURT REPORTS 
[1961] 
r960 
the question will now be answered in the negative. As 
already stated, there is no need to answer the second 
The Conirnissioner 
. 
h' h d 
t 
· 
. of Juconie-tax, 
question, W lC 
OeS IlO 
arl~e. 
Bambay 
The appeal is allowed with costs here and in the 
v. 
High Court. 
Jl.1 /s. Dwarkadas 
J(hetan .s- Co. 
Appeal allowed. 
_Hidayatullah } , 
Dece111ber I. 
LT. COL. KHAJOOR SINGH 
v. 
THE UNION OF JftDIA & ANOTHER. 
(B. P. SINHA, c. J., J. L. KAPUR, 
P. B. GAJENDRAGADKAR, K. SUBBA RAO, 
K. N. WANCHOO, K. C. DAS GUPTA and 
J. c. SHAH, JJ.) 
Fundamental Right, Enforcement of-Power of High Court to 
issue writs against the Government of India-Constitution of India, 
Arts. 3z(2A). 226. 
The High Court of Jammu and Kashmir, relying on the 
decisions of this Court in Election Commission, India v. Saka 
Venkata Subba Rao, [1953] S.C.R. rr44 and K. S. Rashid and Son 
v. The Income Tax Investigation Commission etc., [1954] S.C.R. 
738, dismissed an applicatbn for a writ made by the appellant 
against the Union of India and Anr. under Art. 32(2A), the rele-
vant provisions of which are in the matter of enforcement of 
fundamental rights the same as in Art. 226 of the Constitution, 
on the preliminary objection that the said application was not 
maintainable against the Union of India as it was outside the 
territorial jurisdiction of that Court. The appellant's case was 
that he was holding the substantive rank of Lieut. Col. in Jammu 
and Kashmir and had the right to continue in service until he 
attained the age of 53 on November 20, r96r, but was prematu-
rely retired by a Jetter issued by the Government of India on 
July 31, 1954, without any allegation or charge and in contra-
vention of Art. 16(r) of the Constitution. 
Held, that there can be 'no doubt as to the correctness of 
the decisions relied on by the High Court and the appeal must 
fail. 
2 S.C.R. SUP!tEME COURT REPORTS 
829 
The jurisdiction of the High Court under Art. 226 of the 
Constitution, properly construed, depends not on the residence 
or location of the person affected by the order but of the per-
son or authority passing the order and the place where the 
order has effect cannot enter into the determination of such 
jurisdiction. Since ft:inctioning of a Government really means 
giving effect to its order, such functioning cannot determine the 
meaning of the words "any person or authority within these 
territories" occurring in the article .. A natural person, there-
fore, is within those territories if he resides there permanently 
or temporarily, an authority other than the Government is 
within those territories if its office is located there and a Govern-
ment if its seat from which, in fact, it functions is there. 
It is not correct to say that the word "authority" in 
Art. 220 cannot include a Government. That word has to be 
read along with the clause "including in appropriate cases any 
Government" immediately following it, which, properly constru-
ed, means, that the word may include any Government in an 
appropriate case. That clause is not connected with the issu-
ance of a writ or order and is not intended to confer discretion 
on the High Courts in the matter of issuing a writ or direction 
on any Government, and only means in such cases where the 
authority against whom the High Court has jurisdiction to 
issue the writ, happens to be a Government or its subordinates, 
the High Court may issue a writ against the Government. 
Election Commission, India v. Saka Venkata Subba Rao, 
[1953] S.C.R. n44 and K. S. Rashid and Son v. The Income-tax 
Investigation Commission etc., [1954] S.C.R. 738, approved. 
Maqbulunnissa v. Union of India, I.L.R. (1953) 2 All. 289, 
overruled. 
The Lloyds Bank Limited v. The Lloyds Bank Indian Staff 
Association (Calcutta Branches), I.L.R. [1954] 2 Cal. I, referred to. 
Proceedings under Art. 226 are not suits covered by Art. 
300 of the Constitution. Such proceedings provide for extra-
ordinary remedies by a special procedure and there is no scope 
for introducing the concept of cause of action in it in the face 
of the express limitation imposed by it, that the person or 
authority concerned must be within the territories over which 
the High Court exercises jurisdiction. 
Ryots of Garabandho v. Zamindar of Parlakimedi, (1943) L.R. 
70 I.A. 129, held inapplicable. 
The resulting inconvenience of such an interpretation of 
Art. 226 to persons residing far away from N

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