N. MASTHAN SAHIB versus CHIEF COMMISSIONER, PONDICHERRY

Citation: [1962] SUPP. 1 S.C.R. 981 · Decided: 08-12-1961 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

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(l) S.C.R. 
SUPREME COURT REPORTS 
981 
N. MASTHAN SAHIB 
v. 
CHIEF COMMISSIONER, PONDICHERRY 
(P. B. GAJENDRAGADKAR, A. K. SARKAR, K. N. 
WANOHOO, K. C. DAS GUPTA and N. RAJ.A.GOP.A.LA 
AYYANGAR, JJ,) 
Territory of India-Pondicherry, if part of India-Ques-
tion referred to Union Governmtnt-Amwer of Union Gol!t.ra-
ment, if binding on Gourt-Ordera of authorities in Pondicherry 
-Ap~l and Writ Petition, if maintainable in Supremt Gwrt--
Gon11titution of India, Arts. I (3), 32 and 136. 
· 
The Supreme Court referred two questions to the Union 
Government viz (i) whether.Pondicherry was comprised within 
the territory oflndia, and (ii) if not, what was the extent of 
the jurisdiction exercised by the Union Government and the 
French Government over the territory. The answers given 
were that (i) Pondicherry was not comprised within the terri-
tory of India and (ii) the Union Government exercised full 
jurisdiction over Pondicherry and the French Government did 
not exercise any de facto jurisdiction over it. There was a 
treaty of cession between France and India in respect of 
Pondichcrry but it had not been ratified as required by the 
French and Indian laws. The appellant contended that the 
answer of the Union Government to the second question 
established that Pondicherry was part of the territory of India 
and that the Court was not bound by the answer to the first 
question. 
Hekl, that Pondichorry was not comprised within the 
territory of India as specified in Art. I (3) of the Constitution. 
The answer of the Union Government on this question was 
binding on the Court. There was no conflict between the 
answers to the two questions. Though complete administra-
tive control over Pondicherry had been transferred to the 
Government of India it could not be equated to a transfer of 
territory. Unless there was ratification of the Treaty there 
could legally be no transfer of'territory. Accordingly, no 
appeal could be entertained by the Court under Art. 136 of 
the Constitution apinst the decisions of the authorities in 
Pondicherry . 
1961 
W61 
N. M asthan Sahib 
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Chief Commissioner; 
Pondicherry 
982 SUPREME COURT REPORTS [1962) SUPP. 
Duff Dei·elopment Company v. Government aj Kelantan 
1924 A.O. 197, Government of the Republic of Spain v. Arant· 
razu Mendi, (1939) A. C. 256 and Fageri,es 1927 Probate 
311, applied. 
Jolley v. Mainka 49 C.L.R. 242 and Fjrost v. Stevenson, 
58 C.L.R. 528, distingui•hed . 
. Per Gajendragadkar, Wanchoo and Ayyangar, JJ.-
Havmg regard to the nature of the relief sought no writ under 
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Art. 32 of the Constitution could be issued to the authorities in 
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~dhl~. 
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P.r Sarkar and Das Gupta, JJ.-The Supreme Court 
could issue a writ under Art. 32 to the quasi-Judicial authori· 
ties in Pondicherry. Article 32 was a fundamental right and the 
right to obtain a writ was equally a fundamental right. If the 
Constitution gave to a party a fundamental right to a writ the 
Court could not refuse that right. The consideration that the 
writ i1Sued may not be enforced in Pondicherry could not be 
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allowed to defeat the provisions of the Constitution. Such a 
consideration is 
relevant only in the case of discretionary • 
orders. 
K. K. Kochunni v. 'l'he 
State of Madras, [1959) Supp. 
2 S.C.R. 316, In re International Pulp and Paper Oo. Ltd., 
(1876) 3 Ch.U.594, Reg v. Fox, 8 E. & B. 939, R. v. OasBel, 
(1916) 1 K.B. 595 and Jn re Banwari!al Roy, 48, C.W.N. 755, 
referred to. 
C1vn. ·APPELLATE JURISDICTION: Civil Appeal 
Nos. 42 and 43 of 1961. 
Appeals by special leave from the judgments 
and orders dated September 7, 1960 of the Chief 
Commissioner, Pondicherry in Appeals Nos. 56 and 
57 of 1960. 
WITH 
Petitions Nos. 297 and 298 of 1960. 
Petitions under Art. 32 of the Constitution of 
India for enforcement of Fundamental Rights. 
A. V. Viswanathr,,Sastri,R. K. Garg, M.K.Rama-
murthy, S. 0. Agarwal and D.P. Singh, for the appel-
lants/petitioners (In both the appeals and the 
petitions.) 
O. K. Daphtary, 
Solicitor-General of India, 
B. Sen, B. R. L. Iyengarand T. M. Sen, for 1he 
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(I) S.C.R. 
SUPREME COURT REPORTS 
983 
respondent No. I (in both the appeals) and respon-
dents Nos. I and 2 (in both the petitions). 
A. S. R. Chari, K. R. Ohoudhria.nd R. Mahalin-
gier, for respondent No. 2 (in both the appeals). 
R. GcYpawkrishnan, for respondent No. 3 (in 
both the petitions). 
1961. December, 
8.-The 
Judgment 
of 
Gajendragadkar, Wanchoo and Ayyang

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