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Civil Appeals Nos. 21 and 22 of 1954, decided on 20th December 1955.
Art. 226 (Constitution of Pakistan Art. 170)‑Territorial jurisdiction of Nigh Court Whether High Court can Issue writ to a tribunal having its offence outside the territorial jurisdiction.
The jurisdiction under Article 226 of the Constitution of India (Art. 170 Constitution of Pakistan) is exercised by the High Courts in order to protect and safeguard the rights of the citizens and where the High Court finds that any person within its territories is guilty of doing an act which is not authorized by law or is violative of the fundamental rights of the citizens, it exercises that jurisdiction in order to vindicate his rights and redress his grievances and the only conditions, of its exercise of that jurisdiction are firstly that writs cannot run beyond the territories subject to the jurisdiction of the Court and secondly the person or authority to whom the High Court is empowered to issue such writs must be "within those territories" which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories.
Commission of a wrongful act by agent‑Liability‑Direction (writ) to whom issuable‑Constitu tion of India, Art. 226 (Constitution of Pakistan Art. 170).
There can be no agency in the matter of the commission of a wrong. 'The wrong doer would certainly be liable to be dealt with as the party directly responsible for his wrongful action. The relationship between principal and agent would only be relevant for the purpose of determining whether the principal‑ also is vicariously liable for the wrong perpetrated by his agent. On the analogy of criminal liability the offence could not be heard to say that he was committing the offence under the behest or direction of his principal. On the analogy of a civil wrong, the tortfeasor could certainly not protect himself against liability on the ground of having committed the tort under the directions of his principal.
The argument that by issuing a writ against the agent under those circumstances the High Court would be putting him in a position whereby he would be compelled to disobey the directions of his principal is also of no avail for the simple reason that an agent is bound to obey all lawful directions of his principal and not directions which the High Court holds to be unlawful or not justified in law.
The agent could certainly be prohibited from obeying the unlawful directions of his principal and even if the principal cannot be reached by reason of his being outside the territories, the arm of the law could certainly reach the agent who is guilty of having committed the wrong and the High Court could certainly issue a writ against him under Art. 226, of the Constitution of India (Art. 170, Constitution of Pakistan).
Election Commission India v. Saka Vankata Rao A I R 1953 S C 210 ; K. S. Rashid & Sons v. Income‑tax Investiga tion Commission A I R 1954 S C 207 ; Ryots of Garabandho v. Zaraindar of Parlakimedi A I R 1943 P C 164, Azmat Ullha v. Custodian, Evacuee Property, U. P. A I R 1955 All. 435, Burhanpur National Textile Workers Union v. Labour Appellate Tribunal of India A I R 1955 Nag. 148 and Jogoindar Singh Waryam Singh N. Director Rural Rehabilitation Pepsu A I R 1955 Pepsu 91 ref.
M. K. Nambiar, Senior Advocate N. Palpu, Narain Andley and Rajinder Naraih for Appellant (in No. 21) and for Respondents (in No. 22).
M. C. Setalvad, Attorney‑General of India (G. N. Joshi, R. Ganapathy Iyer, Porus A. Mehta and R. H. Dhebar) for Respondents (in No. 21) and for Appellants (in No. 22).
These two appeals with certificates under Art. 133 of the Constitution are directed against a judgment of the High Court of Travancore‑Cochin in a writ petition filed by one A. Thangal Kunju Musaliar, hereinafter called the petitioner.
The petitioner is a native of Quilon within the Travancore State which was originally under the sovereignty of the Maharaja of Travancore. He is the Managing Director of Messrs A. Thangal Kunju Musaliar & Sons Ltd., Quilon, and had been assessed to income‑tax for the years 1942 and 1943 and the final orders in his assessment for the said years were passed by the Chief Revenue Authority of Travancore on 6th December 1946 and 30th November 1946 respectively.
On 7th March 1949, the Travancore Legislature passed Act XIV of 1124 (M. E.) modelled on our Act XXX of 1947, styled the Travancore Taxation on Income (Investigation Commission) Act, 1124, to provide for an investigation into matters relating to taxation on 'income. Section 1 (3) of the Act provided that it was to come into force on such date as the Travancore Government may by notification in the Government Gazette appoint.
Under section 3, a Commission to be called the Income tax Investigation Commission was to be constituted inter alla to investigate in accordance with the provisions of the Act cases referred to it under section 5 and report thereon to the Government. The Commission was to be appointed to act in the first instance up to the last day of Karkadakom 1125 (16th August 1950) but the Government was empowered to extend its appointment to any period up to the last day of Karka dakom 1126 (16th August 1951).
Section 5 (1) enacted that the Government might, at any time before the last day of Makaram 1125 (15th February 1950) refer to the Commission for investigation and report any case or points in a case in which the Government had prima facie reasons for belief that a person had to a substantial extent evaded payment of tax on income together with such material as might be available in support of such belief.
Section 6 prescribed the powers of the Commission and inter alia provided for the appointment by the Commission of an authorised official to examine accounts or documents, interrogate persons or obtain statements from persons.
On 1st July 1949, the Tranvancore State and the Cochin State integrated with each other and there was brought into existence the United State of Travancore and Cochin. By virtue of Ordinance I of 1124 promulgated on the same day, called the United State of Travancore and Cochin Adminis tration and Application of Laws Ordinance, 1124 (Ordi nance I was enacted later as Act VI of 1125), all existing laws of Travancore were to continue in force till altered, amended or repealed by competent authority. The existing law of Travancore was defined to mean any law in force in the State of Travancore immediately prior to the 1st July 1949.
On 26th July 1949, a notification was published in the Travancore‑Cochin Government Gazette whereby, in exercise of the powers conferred by section 1 (3), Travancore Taxation on Income (Investigation Commission) Act XIV of 1124 as continued in force by the United State of Travancore and Cochin Administration and Application of Laws Ordinance, 1124 (I of 1124), the Government appointed the 7th Karka dakom 1124 (22nd July 1949) to be the date on which the said Act was to have come into force.
On 26th November 1949 the Government of the United State of Travancore and Cochin issued orders under section 5 (1) of the Travancore Act XIV of 1124 referring the cases of the petitioner for the years 1942 and 1943 for investigation by the Travancore Income‑tax Investigation Commission.
These orders had specific reference to the years 1942 and 1943 and the investigation to be made by the Commission was with reference to the alleged evasion of tax by the petitioner for those respective years. The cases were registered as Evasion Cases 1 and 2 of 1125.
On 10th December 1949 the petitioner received from the Secretary of the Commission a. notice in regard to the said cases. The relevant portion of the said notice stated :
"Whereas the Income‑tax Investigation Commission having been informed that a substantial portion of your income for 1942 and 1943 has escaped assessment, has ordered investigation into the matter, you are hereby required to produce the following on or before 21st Decem ber 1949 before the Commission.
(1) The account books (day books and ledgers) for the years 1942 and 1943.
(2) * * * * * * * * *
(3) * * * * * * * * *
(4) * * * * * * * * *
(5) * * * * * * * * *
(6) * * * * * * * * *
Pursuant to this notice the petitioner produced the relevant books and the Commission duly completed its investigation under the terms of the Travancore Act XIV of 1124.
Before the Commission could, however, make its report, the Constitution of India came into force on 26th January 1950 and the United State of Travancore and Cochin became a part of the territory of India, forming a Part B' State. Under Art 372 (1). of the Constitution, the Travancore Taxation on Income (Investigation. Commission) Act, 1124 (Travancore Act XIV of 1124) was continued in "until altered; amended or repealed by a competent authority."
An Indian States Finance Enquiry Committee had been appointed in 1948‑49 and it had made its recommendations regarding the agreements to be entered into between the President of the Union and the Rajpramukhs in regard to financial arrangements.
In accordance with the recommendations of the Committee, an agreement was entered into or. 25th February 1950 between the President of the Union and the Rajpramukh of Travamcore‑Cochin in regard to these matters and on 31st Marc) 1950 the Finance Act, 1950 (Act XXV of 1950) came into force and the Indian Income‑tax Act, 1922 XI of 1922) was extended to Travancore‑Cochin.
On 18th April 1950, the Opium and Revenue Laws (Exten sion of Application) Act, 1950 being Act XXXIII of 1950 was passed by Parliament extending to Travancore‑ Cochin the taxation on Income (Investigation Commission Act, 1947 (XXX of 1947) and section 3 of that Act provided that the law of Travancore corresponding to the Taxation on Income (Investigation Commission) Act, 1947 (XXX of 1947) shall continue to remain in force with the following modifications, viz.
(a) that all cases referred to or pending before the State Commission (by whatever name called) in respect of matter relating to taxation on income other, than agricultural income shall stand transferred to the Central Commission for I disposal ; and
(b) that the State law shall, so far as may be, apply to determine the procedure that may be followed and powers that may be exercised by the Central Commission in the disposal of cases transferred under clause (a).
The Travancore Commission had been appointed in the first instance to act up to the last day of Karkadakom 1125 (16th August 1950). Neither the Travancore Commission nor the Ind. Commission to which the pending cases before the Travancore Commission were transferred as aforesaid made any report on these cases of the petitioner before the expiry of this period nor was any extension of the term of appointment of the Travancore Commission made up to the last day of Karkadakom 1126 (16th August 1951) as originally contemplated.
On 25th August 1951, therefore, the Opium and Revenue Laws (Extension of Application) Amendment Act, 1951, being Act XLIV of 1951 was passed amending Act XXXIII of 1950 whereby it was provided that in the place of clause (b) of section 3 of Act XXXIII of 1950, the following clause shall substituted and shall be deemed always to have been sub stituted viz., "in the disposal of cases transferred to the Central Commission, the Commission shall have and exercise the same powers as it has and exercises in the investigation of cases referred to it under the Taxation on Income (In vestigation Commission) Act, 1947 (XXX of 1947) and shall be entitled to act for same term as under subsection (3) of section 4 of that Act" and it was further provided that any 'decision given by the Chief Revenue Authority of Travan core or of Travancore‑Cochin shall be deemed a decision of the Income‑tax Authority for purposes of subsection (2) of section 8 of the Travancore Act XIV of 1124.
On 18th October 1951, a notification was issued by the Indian Income‑tax Investigation Commission appointing M. Venkatachalam Potty, Income‑tax Officer on Special Duty, Trivandrum, as an authorised official under section 6, Travan core Taxation on Income (Investigation Commission) Act, 1124 read with Act XXXIII of 1950.
The authorised official, hereinafter referred to as respondent 1, forwarded to the petitioner on 21st November 1951 for his information a copy of that notification investing him with the powers of an authorised official and intimated that the investigation proposed to be conducted will not be confined to the years 1942 and 1943, the two years originally covered by Evasion Cases Nos. 1 and 2 of 1125 but that it would be necessary for him to investigate the petitioner's income for the period from 1940 to the last completed assess ment year notwithstanding the fact that the erstwhile State commission had not specifically intimated to him that they Proposed to cover the full period.
The petitioner, by his registered letter dated 23rd February 1952 pointed out to respondent I the illegality of the steps proposed to be taken by him to which, however, the latter replied by his letter dated the 13th March 1952 stating that he proposed to consider income for the full investigation period, viz., from 1940 to the last completed assessment year.
The petitioner thereupon filed on 6th May 1952 a writ petition in the High Court of Travancore‑Cochin, being D. P. XLI of 1952 against respondent I as also the Indian Income‑tax Investigation Commission, hereinafter called res pondent 2, for a writ of prohibition or any other appropriate writ or direction prohibiting the respondents from holding any enquiry into the cases registered as Evasion Cases Nos. 1 and 2 of 1125 on the file of Income‑tax Investigation Commission of Travancore or from holding any investigation into the income of the petitioner from 1940 to the last completed assessment year or for any other period.
Respondent I filed a counter‑affidavit in which it was inter alga submitted:
" that the Commission by these proceedings is not trying to clutch at non‑existent jurisdiction. They are fully prepared to shape their proceedings in accordance with the directions of this Hon'ble Court".
This affidavit was stated to have been filed as the answer of both the counter‑petitioners, viz., respondents 1 and 2 and respondent 1 stated that he had been fully authorised to do so.
The writ petition was heard by a Bench of three Judges of the High Court consisting of K. T. Koshi, C.J., and P. K. Subramonia Iyer and M. S. Menon, JJ: The learned Judges held that respondent 2 had all the powers that the Travan core Commission had under the Travancore Act XIV of 1124 and no more and accordingly issued a writ prohibiting respondent 1 from conducting an investigation into years other than 1942 and 1943 observing that any attempt to enlarge the scope of the enquiry was without legislative warrant.
The petitioner appealed in so far as the order of the High Court was against him permitting the enquiry for the years 1942 and 1943, his appeal being Civil Appeal No. 21 of 1954. Respondents 1 and 2 appealed against the order of the High Court in so far as it prohibited respondent 1 from conducting investigation for the years which were not covered by the Evasion Cases Nos. 1 and 2 of 1125, their appeal being Civil Appeal No. 22 of 1954.
Both these appeals came for hearing and final disposal before us on 20th September 1955. After the arguments had proceeded for some time Shri Nambiyar, for the petitioner, asked for leave to urge additional grounds, viz., (a) that section 5 (1) of Travancore Act XIV of 1124 was ultra vires under Arts. 14 and 19 of the Constitution, and (b) that in particular the said section 5 (1) infringed Art. 14 of the Constitution inasmuch as it was not based on any rational classification whatsoever, and the word "substantial" therein could not possibly be deemed to be any form of classification.
On our giving him such leave the learned Attorney General, appearing for respondents I and 2 asked for time to put in an affidavit showing the background against which Travancore Act XIV of 1124 had been passed by the Travan core Legislature. An affidavit was accordingly filed before us by Gauri Shanker, Secretary of respondent 2 setting out facts and events as and by way of answer to these new contentions of the petitioner.
A preliminary objection to the jurisdiction of the High Court to entertain the writ petition may be dealt with first. This objection was not taken in the counter affidavit filed by the respondents, they having expressed their readiness to shape their proceedings in accordance with the directions of the Court.
The learned Advocate‑General of Travancore‑Cochin, however, urged before the High Court that the Court was not competent to entertain the petition in view of the fact that respondent 2 was not amenable to its jurisdiction and tote argument was that as respondent 2 functioned outside the State of Travancore‑Cochin and respondent 1 was a mere subordinate of respondent 2, it was beyond the competence of the High Court to grant the prayer embodied in the petition.
The High Court overruled the abjection observing that respondent I was resident within the State of Travancore Cochin, his office was situated at Trivandrum, all his com munications to the petitioner had emanated from within the State and the activities complained about were activities confined to the State.
It was of the opinion that the prayer in the petition was, in essence a prayer to paralyse the hands of respondent 1 and thus prevent the mischief and that, by his residence and the location of his office within the State respondent 1 was clearly amenable to the jurisdiction of the Court under Art. 226 of the Constitution.
It was further of opinion that the writ against respondent 1, if issued, was sufficient for stopping the mischief complained about and therefore it was unnecessary for it to decide whether or not a writ could be issued so far as respondent 2 was concerned. It, therefore, issued the necessary writ of prohibition against respondent 1.
The learned Attorney‑General pressed this preliminary objection at the outset while arguing Civil Appeal No. 22 of 1954. He pointed out that respondent 2 had its office in New Delhi and was permanently located there and the mere fact of its having appointed respondent I to function and carry on the investigation within the State of Travancore under its direction did not make it amenable to the jurisdiction of the High Court. He, therefore, contended that the High Court had no jurisdiction to entertain the writ petition against respondent 2.
He further contended that the High Court could not do indirectly what it was not able to do directly and that it could not issue any writ of prohibition against respondent 1 either even though he had his office at Trivandrum and had a permanent location within the jurisdiction of the High Court inasmuch as he was merely an arm of respondent 2 and any writ issued against him would have the indirect effect of prohibiting respondent 2 from exercising its legitimate func tions within the ambit of its powers under the Travancore Act XIV of 1124 read with Act XXX of 1950 and Act XLIV of 1951.
Reliance was placed by him on the decision of this Court in Election Commission, India v. Saka Venkata Rao (A I R 1953 S C 210). The respondent in that case had applied to the High Court of Madras under Art. 226 for a writ restraining the Election Commission, a statutory authority constituted by the President and having its office permanently located at New Delhi, from enquiring into his alleged disqualification for member ship of the Assembly, and a single Judge of the High Court had issued a writ of prohibition restraining the Election Commission from doing so.
The Election Commission filed an appeal to this Court and agitated the question of the jurisdiction of the High Court under Art. 226 to issue the writ against it. While discussing this question, Patanjali Sastri, C. J., who delivered the judgment of the Court observed as under:‑
"But wide as were the powers thus conferred, a two‑fold limitation was placed upon their exercise. In the first place, the power is to be exercised "throughout the terri tories 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.
Secondly, the person or authority to whom the High Court is empowered to issue such writs must be "within those territories" which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories":
The learned Chief Justice then traced the origin and develop ment of the power to issue prerogative writs as a special remedy in England and observed at p. 213.
"These writs were thus specifically directed to the persons or authorities against whom redress was sought and were made returnable in the Court issuing them and, in case of disobedience, were enforceable by attachment for contempt. These characteristics of the special form of remedy rendered it necessary for its effective use that the persons or authorities to whom the Court was asked to issue these writs should be within the limits of its territorial jurisdiction."
The mere functioning, of the tribunal or authority perma nently located and normally carrying on its activities elsewhere, within the territorial limits was not considered sufficient to invest the High. Court with jurisdiction under Art. 226 nor was the accrual of the cause of action within the territories considered sufficient for the purpose.
The residence or location within the territories of the person or authority was considered a condition of the High Court being empowered to issue such writs with the result that the Election Commission having its office permanently located at New Delhi was held not amenable to the jurisdic tion of the High Court for the issue of a writ under Art. 226.
This decision in Saka Venkata Rao's case (AIR1953SC210), was followed by this Court in K. S. Rashid & Son v. Income‑tax Investiga tion Commission (AIR1954SC207). In that case, the assessees who were within the State of U. P. and whose original assessments were made by the income‑tax authorities of that State had filed writ petitions in the Punjab High Court for the issue of writs under Art. 226 to the Income‑tax Investigation Commission located in Delhi and investigating their cases under section 5, Taxation on Income (Investigation Commission) Act, 1947.
The Punjab High Court had sustained the objection urged on behalf of the respondents to the effect that the assessees having belonged to the State of U. P. their assessment was to be made by the Income‑tax Commissioner of that State and the mere fact that the location of the Investigation Commis sion was in Delhi would not confer jurisdiction in the Punjab High Court to issue writs under Art, 226 and had dismissed the petitions.
This Court on appeal, distinguished the decision in Ryots of Garabandho v. Zamindar of Parlakimedi (A I R 1948 P C 164) which was sought to be relied upon by the respondents before it and followed the position in law as it had been enunciated in Saka Venkata Rao's case, and held that the Punjab High Court had jurisdiction to issue a writ under Art. 226 to the Investigation Commission which was located in Delhi in spite of the fact that the assessees were within the State of U. P and their original assessments were made by the income‑tax authorities of that State.
The principle of these decisions would, it was urged by the learned Attorney‑General, eliminate respondent 2 and the High Court of Travancore‑Cochin would have no juris diction to entertain the writ petition against it.
It was, however, urged on behalf of the petitioner that, in the affidavit filed by the respondents, both the respondents had submitted that they were fully prepared to shape their proceedings in accordance with the directions of the Court. This, it was submitted, was a voluntary submission to the jurisdiction of the High Court investing the High Court with jurisdiction to issue the appropriate writ against res pondent 2. We need not, however, express any opinion on this point because no writ was in fact issued by the High Court against respondent 2 nor was any appeal filed by the petitioner against that part of the decision of the High Court.
The real question, however, is whether a writ could issue against respondent 1 who is, it was submitted, a mere arm of respondent 2 and a writ against whom would be equivalent to a writ issued by the High Court against respondent 2 which it had no jurisdiction to do.
An authorised official derives his appointment from the Commission under section 6 of the Travancore Act XIV of 1124. Section 6(4) of the Act provides that if in the course of any investigation conducted by the Commission it appears to the Commission to be necessary to examine any accounts or documents or to interrogate any person or to obtain any statement from any person the Commission may authorise any income‑tax authority not below the rank of an Income‑tax officer (called the "authorised official") in that behalf subject to such directions as may be issued by the Commission from time to time and the authorised official shall examine the accounts or documents, interrogate r'ar persons and obtain the statements from the persons.
The authorised official is invested, under section 6, sub section (5), subject to the direction of the Commission, with the same powers as the Commission under subsections (1), (2) and (3) which empower the Commission to require any person or banking or other company to prepare and furnish written statements of accounts and affairs giving information on such points or matters as in the opinion of the Commission may directly or indirectly be useful or relevant to any case referred to it to administer oaths and exercise all powers of a Civil court under the Code of Civil Procedure for the purpose of taking evidence on oath, enforcing attendance of witnesses and of persons whose cases are being investigated, compelling the production of documents and issuing commis sions for the examination of witnesses and to impound and retain in its custody for such period as it thinks fit any documents produced before it.
The authorised official is under section 6, subsection (10), to have full and free access to all documents, books and other papers which in his opinion are relevant to the proceedings is any case or cases under the Act and if specially authorised in this behalf by the Commission to any buildings and places where he may have reason to believe that such books, docu ments or papers may be found and also to have powers to place identification marks on such books, documents or papers and to make extracts or copies there form or if he considers it necessary to take possession of or seize such books, docu ments or papers. Under section 6, subsection (11), the authorised official is deemed to be a public servant within the meaning of section 16, Travancore Penal Code (I of 1074).
It is clear from the above provisions that the authorised official has considerable powers conferred upon him in the conduct of the investigation and even though he could be called a mere arm of the Commission or an authorised agent of the Commission, he has important functions to discharge and is not merely a mouth‑piece of the Commission or a conduit‑pipe transmitting the orders or the directions of the Commission.
He is no doubt under the general control and supervision of the Commission bat he performs the various functions assigned to him on his own initiative and in the exercise of his discretion. If, therefore, he does anything in the discharge of his functions as authorised official which is not authorised by law or is violative of the fundamental rights of the petitioner, he would be amenable tea the jurisdiction of the High Court under Art. 226.
Even though this is the prima facie position, it was urged that he is acting under the directions of the Commission as its authorised agent and as such no writ can issue against him, because the principal who directs the activities and not the agent would be liable for the same. This contention is unsound. There can be no agency in the matter of the commission of a wrong.
The wrong‑doer would certainly be liable to be dealt with as the party directly responsible for his wrongful action. The relationship between principal and agent would only be relevant for the purpose of determining whether the principal also is vicariously liable for the wrong perpetrated by his agent.
On the analogy of criminal liability, the offender could certainly not be heard to say that he was committing the offence under the behest or directions of his principal. On the analogy of a civil wrong, the tortfeasor could certainly not protect himself against liability on the ground of having committed the tort under the directions of his principal.
The agent could in no event exculpate himself from liability for the wrongful act done by him and if he is thus amenable to the jurisdiction of the High Court the High Court could certainly issue an appropriate writ against him under Art. 226.
The jurisdiction under Art. 226 is exercised by the High, Court in order to protect and safeguard the rights of the citizens and wherever the High Court finds that any person within its territories is guilty of doing an act which is not authorised by law or is violative of the fundamental rights of the citizens, it exercises that jurisdiction in order to vindicate his rights and redress his grievances and the only conditions of its exercise of that jurisdiction are those laid down in the passage from Patanjali Sastri, C. J.'s judgment cited above.
The argument that by issuing a writ against the agent under those circumstances the High Court would be putting him in a position whereby he would be compelled to disobey the directions of his principal is also of no avail for the simple reason that an agent is bound to obey all lawful direction of his principal and not directions which the High Court holds to be unlawful or not justified in law.
The agent could certainly be prohibited from obeying the unlawful directions of his principal and even if the principal cannot be reached by reason of his being outside the territories, the arm of the law could certainly reach the agent who is guilty of having committed the wrong and the High Court could certainly issue a writ against him under Art. 226.
It was further contended that by issuing such a writ against the authorised official the High Court would be in directly prohibiting the Commission from conducting the investigation within the territories even though it could not directly prohibit the Commission from doing so.
If the Commission was doing something within the terri tories through its authorised official which was not justified in law, it would not lie in the mouth of the Commission to urge that the High Court could not issue a writ of prohibition against its agent, the authorised official, who had his residence or permanent location within the territories merely because it would be indirectly prohibited from perpetrating a wrong within the territories.
The principal could, in no event, urge that his agent should be allowed to function for him within the territories in a manner which was not warranted by law or bad no justification in law. It is expected that once this Court has declared the law the Investigation Commission would comply with it and not place its agent in the wrong by directing hint to act contrary to the law so declared.
Our attention was drawn by the learned Attorney‑General in this connection to three recent decisions of the High Courts of Allahabad, Nagpur and Pepsu which, according to him, supported his contention, viz., Azmat Ullah v. Custodian, Evacuee Property U. P., Lucknow (A I R 1955 All. 435 (F B)), Burhannur National Textile Workers Union, Burhanpur v. Labour Appellate Tribunal of India (A I R 1955 Nag. 148) and Joginder Singh Waryam Singh v. Director, Rural Rehabilitation, Pepsu (A I R 1955 Pepsu 91).
These decisions, however, are clearly not in point for, in each of them, the order passed by the authority within the territories and accordingly within the jurisdiction of the High Court concerned had merged in the order of the superior authority which was located outside the territories and was, therefore, beyond the jurisdiction of that High Court. In that situation, a writ against the inferior authority within the territories could be of no avail to the petitioner concerned and could give him no relief for the order of the superior authority outside the territories would remain outstanding and operative against him.
As, therefore, no writ could be issued against that outside authority and as the orders against the authority within the territories would, in view of the orders of the superior authority, have been infructuous, the High Court concerned had, of necessity, to dismiss the petition. Such, however, was not the position in the present petition before the High Court of Travancore‑Cochin.
There was here (sic) no question of merger of any judicial order of respondent 1 into the judicial order of respondent 2. In this case respondent 1 was actually claiming to exercise powers conferred upon him by certain sections of the Travan core Act XIV of 1124 which, it was submitted, were contrary to law or discriminatory and consequently ultra vires the Constitution. The fact that respondent 1 was the agent of respondent 2, which being beyond its jurisdiction could not be reached by the High Court, could not make his acts any the less objectionable or discriminatory and ultra vires.
It is sufficient to say that if his action was contrary to law or if the provisions of law under which he was claiming to act became, after the commencement of the Constitution, void under Art. 13 (1) as being repugnant to Art. 14 and the doer of the illegal act was within the reach of the High Court, the High Court had jurisdiction under Art. 226 to issue a writ against respondent 1 and thereby prevent further infringement of the petitioner's fundamental rights. The preliminary objection urged by the learned Attorney‑General against the jurisdiction of the High Court, therefore, fails.
NOTE :‑The rest of the judgment is not of great interest in Pakistan having a provision, of law exclusively for India]‑Ed.
M. I. B. Appeal dismissed.
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