R.M.SAHAI, J. - (1.) Can a person residing in a State invoke extraordinary jurisdiction under Art.226 against an authority or government situated outside the State in respect of an order made or action taken by such government or authority outside the territorial limits of the High Court ? Put it differently, whether cause of action wholly or in part arises within meaning of Cl.(2) of Art.226 in the State where petitioner resides ?
(2.) For this it is necessary to narrate in brief the circumstances in which Cl.(2) was added in Art.226 by Constitution (Fifteenth Amendment) Act, 1963, Art.226(1) as it originally stood read as under : "Notwithstanding anything in Art.32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders, or writs, including (writ in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose). It was drastically amended by Forty Second Amendment, 1976 but it has been restored as it was by Forty Fourth Amendment Act, 1978. Therefore, it may be seen as to how the expression 'every High Court shall have power through the territories in relation to which it exercises jurisdiction' used in this article was interpreted. The first decision which came up before Hon'ble Supreme Court was Election Commission of India v. Saka Venkata Subba Rao, 1953 0 SCR 1144. A writ of prohibition was sought against Election Commission having its permanent office at New Delhi. It was issued by the Madras High Court. The decision was overruled and it was held : "We are unable to agree with the learned Judge below that if a tribunal or authority permanently located and normally carrying on its activities elsewhere exercises jurisdiction within those territorial limits so as to affect the rights of parties therein such tribunal or authority must be regarded as "functioning" within the territorial limits of the High Court and being, therefore, amenable to its jurisdiction under Art.226." The Hon'ble Court further repelled the argument of inconvenience and held, "It was said that it could not have been contemplated that an inhabitant of the State of Madras, feeling aggrieved by a threatened interference with the exercise of his rights in that State by an authority, located in Delhi and acting without jurisdiction, should seek his remedy under Art.226 in the Punjab High Court. It is a sufficient answer to this argument of inconvenience to say that, the language of the article being reasonably plain, it is idle to speculate as to what was or was not contemplated. Soon thereafter came another case K.S. Rashid and Sons v. The Income-tax Investigation, 1954 SCR 738. K.S. Rashid and Sons, who were assessees in State of U.P. filed writ for prohibition in High Court of Punjab to restrain the Commission from proceedings under S.5 of Act XXX of 1947. The petition was dismissed and the preliminary objection that petitioners being assessees belonging to the State of U. P. could not approach Punjab High Court merely because Commission was in Delhi was upheld. In appeal the Hon'ble Court set aside this finding and held that petition was maintainable. It reiterated the view in Election Commission case (supra) and held : "There are only two limitations placed upon the exercise of these powers by a High Court under Art.226 of the Constitution : one is that the power is to be exercised "through out the territories in relation to which it exercises jurisdiction", that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. The other limitation is that the person or authority to whom the High Court is empowered to issue writs "must be within those territories" and this implies that they must be amenable to its jurisdiction either by residence or location within those territories. It is with reference to these two conditions thus mentioned that the jurisdiction of the High Courts to issue writs under Art.226 of the Constitution is to be determined." Then came the decisions of Lt. Col Khajoor Singh v. Union of India, AIR 1961 SC 532 and Collector of Customs v. East India Co. Ltd., AIR 1963 SC 1124 which hastened introduction of Cl.(2). Khajoor Singh was holding a regular commission in Jammu and Kashmir State forces, which were amalgamated with Defence Force of Union of India. He was compulsorily retired by an order of Govt. of India. He challenged the order in Jammu and Kashmir High Court. It was dismissed as not maintainable. The order was upheld by majority in the Supreme Court. It was held, by B.P. Sinha, J. "It seems to us therefore that it is not permissible to read in Art.226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction. Thus if a person residing or located in Bombay, for example, is aggrieved by an order passed by an authority located, say, in Calcutta, the forum in which he has to seek relief is not the Bombay High Court though the order may affect him in Bombay but the Calcutta High Court where the authority passing the order is located. It would, therefore, in our opinion be wrong to introduce in Art.226, the concept of the place where the order passed has effect in order to determine the jurisdiction of the High Court which can give relief under Art.226." In concurring judgement K.C. Das Gupta, J. held : "For the reasons discussed above I have reached the conclusion that while the Government of India is within the territories of every High Court in India the only High Court which has jurisdiction to issue a writ or order or directions under Art.226 or Art.32(2A) against it is the one within the territories under which the act or omission against which relief was sought took place." Due to these decisions Cl.(1A) was added to Art.226 by 1963 Amendment which later on became Cl.(2). It reads as under : "(1A) The power conferred by Cl.(1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action for the exercise of such power arises, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories". In the objects and reasons of the Amendment Act it was mentioned that : "Under the existing Art.226 of the Constitution the only High Court which has jurisdiction with respect to the Central Government is the Punjab High Court. This involves considerable hardship to litigants from distant places. It is, therefore, proposed to amend Art.226 so that when any relief is sought against any Government, authority or person for any action taken, the High Court within whose jurisdiction the cause of action arises may also have jurisdiction to issue appropriate directions, orders or writs".
(3.) From a bare reading of the clause, in background in which it was introduced, there is hardly any doubt that it did not confer any additional powers on the High Court. A Full Bench in Om Prakash v. Divisional Superintendent, Northern Railway, AIR 1970 All 440 while discussing the purpose of introducing this clause observed : "The object of the present Amendment is to make the accrual of cause of action on additional factor to give jurisdiction to a High Court under Art.226." It only extended the jurisdiction to issue writ to any authority or government irrespective of its seat or place if the cause of action wholly or partly arose within territorial limits of that Court.;