Coyajee, J.
1. This petition is presented by petitioner No. 1, a private limited company, and petitioner No. 2, who is a director of that company challenging the validity of a certain order dated 7-4-1954, emanating from the Ministry of Information and Broadcasting and signed by the Under Secretary to the Government of India exercising powers under Section 5, Sub-section (4) of the Cinematograph Act, 1952, on behalf of the Central Government directing that certain parts of a film 'Prisoner of Golconda' should be excised from all copies of the film and for production of the certificate granted by the Central Board of Film Censors for a proper amendment.
This order was served on petitioner No. 2 in Bombay. According to the petition, the petitioners produced a certain film called 'Prisoner of Golconda' at a very heavy cost and thereafter approached the Central Board of Film Censors in Bombay. That Board made certain cuts and amendments. Aggrieved by that the petitioners went to the Revising Committee of the Central Board under Rule 29.
The film was then examined by the Revising Committee of the Central Board of Film Censors on 4-t3-1954, and that Committee passed the film subject to certain cuts, reductions and deletions. A 'U' certificate as contemplated by the Rules was issued on 9-3-1954. It appears that thereafter the Ministry of Information and Broadcasting intervened under Section 5 of the Act and passed the order which I have just set out above under the signature of the Under-Secretary calling upon petitioner No. 2 to excise certain sequences specified in the schedule to that order and intimating to him that in the event of non-compliance the film would be declared as an uncertified film.
This notification is issued under Section 6(c) of the Cinematograph Act suspending the exhibition of this picture for a month. It appears that the petitioners subjected themselves to this requisition and the film was dealt with in accordance with this order whereafter a certificate was duly issued and thereafter they have been releasing this film in a truncated form at several places, including Bombay and Nagpur.
In the petition the petitioners have challenged the validity of Section 5, Sub-section (4), and Section 6 of the Act and contended that these sections are void as un-controlled, unfettered and unregulated power has been, conferred by this statute and this is an unreasonable limitation on the freedom of speech and proprietary rights of the petitioners. In para. 22 the petitioners set out that the administrative office ofthe respondent is in Bombay, the film was produced in Bombay and was examined and certified by the Central Board of Film Censors in Bombay, the censor certificate was issued in Bombay and the order complained of, namely, of 7-4-1954. was served upon petitioner No. 2 in Bombay and therefore they contend that this High Court has jurisdiction to entertain this petition.
The relief asked for is that the Court should issue an appropriate writ under Article 226 of the Constitution of India, to cancel, withdraw or set aside the said order of 7-4-1954, and restraining the Union of India from giving effect to the said order. Other alternative writs are prayed for as set out in prayer (b) against the Union of India.
2. At the hearing of the petition, the Attorney General on behalf of the Union of India has raised a preliminary point, namely, whether this Court has jurisdiction to entertain this petition, because it is contended that this Court has no jurisdiction and that goes to the root of the matter and that in that event it would be unnecessary for the Court to embark upon an investigation on the other issues raised on the face of the petition.
It may be noted that, as I have indicated above, the relief asked for is only against the order of the Ministry of Information, Ex. E. to the petition, whoso Order dated 7-4-1954, is challenged. At the same time I may note that it was conceded on behalf of the respondent that the office of the Central Board of Film Censors is situated in Bombay. The question has been raised whether I should try this preliminary issue and Mr. Gupte on behalf of the petitioners has resisted that application made on behalf of the respondent on the ground that this Court should answer as a trial Court should all issues arising on the face of the pleadings.
I was also referred to a decision of the Supreme Court in this connection in -- 'Dominion of India v. Shirinbai A. Irani', : [1955]1SCR206 for the purpose of arguing that this question should not be tried as a preliminary issue. Now, in my opinion, there is a clear distinction between a Court raising several issues on fact and law and considering one of the issues important enough to dispose of the whole matter.
In that case as was done in Irani's case (A) one of the issues was considered as sufficient to disentitle the plaintiff or the petitioner from maintaining the action. But that is riot really a preliminary point. A preliminary point is one which if answered negatives either the jurisdiction of the Court or negatives any came of action on the face of the plaint as in the case of issue of limitation and in my opinion in fact if this preliminary point is answered then it would be unnecessary for the Court to go into the facts and other issues arising thereon.
My attention has been drawn in this connection to certain observations of the Court of Appeal in the case of -- 'Sowkabai Pandharinalh v. Tukojirao Holkar', AIR 1932 Bom 128, the observations of Chief Justice Beaumont being at p. 129, where it is stated that under Order 14, Civil P. C. it is the duty of the Judge at the first hearing of the suit to frame issues based upon the differences between the parties and under Rule 2 of that Order the Judge may frame a preliminary issue of law and that introduces the practice which used to be known in England prior to the passing of the Judicature Act as pleading 'on demurrer' namely, that assuming the truth of all the allegations in the plaint the defendant may say, that the statement of claim in point of law discloses no cause of action and therefore the suit should be dismissed.
In fact unless in Certain cases the Court is empowered to go into this there would be no meaning In the Code of Civil Procedure expressly providing for this procedure under Order 14, Rule 2. In these circumstances I have decided despite the objection onthe part of counsel appearing on behalf of the petitioners to try this preliminary issue of jurisdiction. Therefore, the question before m0 will be dealt with on the footing of a demurrer, namely, accepting all the facts on the face of the petition for that purpose whether this Court has jurisdiction to entertain this petition.
3. Strictly speaking, for this purpose I have to look at para 22 of the petition and Ex. A and Ex. B annexed to the petition and nothing more, but since counsel on behalf of the petitioners has invited my attention expressly to the affidavit in reply para. 19 and affidavit in rejoinder para. 18, I will set out the resume of those paragraphs. I have set out what is set out in para. 22 of the petition already above, In para. 19 of the affidavit in reply the respondent states as follows:
'With reference to paragraph 22, the Central Government have no administrative office in Bombay and the order dated 7-1-1954 was issued by the Central Government in New Delhi.'
In para. 18 of the affidavit in rejoinder it is stated that the petitioners deny that the Central Government have no administrative office in Bombay and say that the Central Government have several administrative offices and officers in Bombay including the office of the Central Board of Film Censors.
4. Now, as I have stated above Ex. E, the order complained of dated 7-4-1954, is issued from New; Delhi and is signed on behalf of the Government of India by the Under-Secretary and the body of the order makes it clear as to whose order it is. Now, for the purpose of jurisdiction I have to look at Article 22(3) of the Constitution and Article 226, Sub-clause (1), states as follows:
'Notwithstanding anything in Article 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 eases any Government, within those territories directions, orders or writs, including writs 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.'
5. The question that falls to he answered, therefore is where is the location of the authority issuing the order complained of, namely, the order made and issued at New Delhi though this order is effective in Bombay as in other parts of the Union. Now, inasmuch as certain reference has been made to the orders of the Central Board and the location of the Central Board, it is necessary for me to make a reference to and examine the position of the Central Board although I may state that in my opinion it has no relevance on the issue before me, because there is no order of the Central Board complained of, but inasmuch as much is said about the Central Board on the face of the petition and the Central Board is referred to in para. 18 of the affidavit in rejoinder, one may refer to its powers and position for the purpose of clearly finding who is the authority under the Act, namely. Act 37 of 1952, that has made this order.
6. Under Section 3 of Act 37 of 1952, the Cinematograph Act, a Board of Film Censors is set up under Part II, 'Certification of films for public exhibition.' Under this section, the Central Government may by notification in the Official Gazette, constitute a Board of Film Censors, consisting of such number of persons as may be prescribed, for the purpose of examining and certifying films as suitable for unrestricted public exhibition or for public exhibition restricted to adults and prescribe the manner in which the Board shall exercise the powers conferred on it by this Act.
Section 5 deals with appeals that may be made against the authority from any order of the Board ofFilm Censors and Section 5, Sub-section (4), expressly deals with the power of the Central Government to call at any time for the record of any proceeding of the Board relating to the refusal to grant, or the grant of, any certificate, and even in a case in which no appeal has been preferred to make such, order in the case as to the Central Government may seem fit.
Now, this Section 5, Sub-section (4), gives the Central Government revisional powers which they may exercise 'suo motu'. Section 6 of the Act says that notwithstanding anything contained in Sections 4 and 5, the Central Government may of its own motion pass certain orders including an order under Clause (c) suspending the exhibition of any film for a period specified in the direction. Section 8 confers on the Central Government the right to make rules and Section 9 gives the Central Government a free hand, namely, to exempt in writing any film or class of films from any of the provision of Part II of the Act.
Section 18 repeals Act II of 1918 thereby continuing the rules passed under the old Act. Now, it is obvious on a perusal of the relevant sections I have set out above that the final authority is the Central Government and it may accept the view of the Board of Film Censors or it may not and it can act on its own initiative under Section 5, Sub-section (4), by calling for any proceeding or record and making any order it deems fit or as it feels proper to suspend the exhibition of any film under Section 6, or to exempt altogether any film or any class of films under Section 9.
In other words that is the final authority and that is the authority who has passed the order dated 7-4-1954, which is challenged on this petition. The Central Government have made certain rules and I shall only refer cursorily to sonic of them. Under Rule 3, the authority to be constituted under Section 6(1) of the Act is to be a Board to be known as 'the Central Board of Film Censors' and then Rule 9 talks of constitution of advisory panels, Rule 11 talks of appointment of regional officers at different places.
Rule 12 is important. It talks of duties of the Board, namely, submitting of report, keeping of registers, and reviewing the work of and issuing directives to regional officers and members of the advisory panels. Under Rule 7, the head quarters of the Board are to be in Bombay unless otherwise directed and the directive referred to in these rules is annexed as Ex. No. 1, to the affidavit in reply to this petition. Rules 24, 25, and 27 may also be looked at.Rule 27 refers to issue of certificate subject to removal of certain portions of the film.
7. This is for the purpose of clearing the ground, that the Board of Film Censors do not in fact picture in this controversy at all and have nothing to do with the order challenged or with the offices of the Union and at this stage in this connection it is pertinent to note that under item 60 of the Seventh Schedule to the Union List the Central Government is given power of sanctioning cinematograph films for exhibition.
8. It is apparent from the above that the ultimate order dated 7-4-1954, annexed as Ex. E. to the petition which is challenged is evidently made under the revisional power conferred on the Central Government under Section 5, Sub-section (4), of Act 37 of 1952, issued at New Delhi and as I have stated served on petitioner No. 2 in Bombay and therefore it is clear to my mind that the authority issuing the order is the Central Government and in these circumstances the question that falls to be answered by me is whether in the circumstances of this case this High Court has jurisdiction to issue any appropriate writ as asked for by the petitioners.
9. It is argued on behalf of the petitioners that in determining the location of the authority one must not merely look for the physical location of the authority or the office of that authority but as thatOrder is to be effective in Bombay as well as in other parts of the Union such authority should under Article 226 of the Constitution be deemed to be amenable to the jurisdiction of this High Court as functioning within the territories of the State of Bombay as contemplated under that article.
Therefore I was first asked by counsel appearing on behalf of the petitioners to look at Article 1 of the Constitution. Article 1 says that
'India, that is Bharat, shall be a Union of States'
and
'The States and the territories thereof shall be the States and their territories specified in parts A, B and C of the First Schedule.'
and thereafter it says that the following territories shall comprise the Union of India. I was then asked to look at Article 73, Clause (a), extent of executive power of the Union, namely that
'Subject to the provisions of this Constitution, the executive power of the Union shall extend (a) to the matters with respect to which Parliament has power to make laws.'
I was also in this connection asked to look at Arts. 245 and 246 namely that subject to the provisions of the Constitution Parliament may make laws for the whole or any part of the territory of India and the Legislature of a State may make laws for the whole or any part of the State, and Article 246 talks of the subject-matter of laws made by Parliament and by the Legislatures of States.
This was done by the learned counsel Mr. Gupte to show the frame of the Constitution for resting the argument that the Central Government functions throughout the territories of the Union of India and therefore functions in the State of Bombay, and if it functions in the State of Bombay, then the Central Government is amenable to the jurisdiction of this High Court.
This argument is based on what might be said to be the intention of the framers of the Constitution namely that they could not have in those circumstances having established these articles contemplated driving a party beyond the State for any relief under Article 226, that is to New Delhi and within the jurisdiction of the High Court of East Punjab and that merely because the physical location of the Central Government happens to be in New Delhi.
To elaborate the argument it is argued that the order complained of is effective in Bombay and will be enforced in Bombay and that any consequence for non-compliance will he visited upon the petitioners in Bombay as well as in any other part of the Union territories where they may propose to release the picture without the ban on it and that the petitioners are residents of Bombay and therefore in these circumstances the real test is the functioning by such authority within the territories of this State and that jurisdiction is to be ascertained as a matter of substance and not of mere form or location only and that in those circumstances this High Court has jurisdiction, and it is argued that if this argument is correct, then the converse of it would be true, namely that if the substance is to be looked at, then the East Punjab High Court would decline on that very ground to entertain this petition.
10. Before referring to the authorities relied upon by the learned counsel on behalf of the petitioners, one may look at the phraseology of Article 226 and Article 226 which I have set out above says that every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including is appropriate cases any Government, within those territories directions, orders or writs.
It is argued that in these circumstances if the authority wherever it may be located exercises anyjurisdiction within its territories and the substance of the jurisdiction as found from the different facts is within the jurisdiction, then the High Court will exercise its jurisdiction. I will also revert to the other part of Mr. Gupte's argument that even apart from that he does not concede that the Union of India is not located within this jurisdiction as argued by him in connection with Articles 1, 73, 245 and 246.
For the purpose of establishing this line of argument, Mr. Gupte relied upon certain authorities.
11. I shall begin by first referring to the decision in the case of -- 'Madras Electric Tramways Ltd. v. M.K. Ranganathan', : (1952)ILLJ176Bom . Now this decision was based on a certain decision of the Privy Council reported in -- 'Ryots of Garabandho v. Zemindar of Parlakimedi', (D) and these decisions are rested on the proposition that jurisdiction is a matter of substance and not of form, and therefore if the Court comes to the conclusion that the substance of the jurisdiction is there, it will exercise its jurisdiction and otherwise decline to do so.
In that case there was a dispute regarding wrongful dismissal between the Madras Electric Tramways Co. Ltd. and one of its employees. The Labour Tribunal ordered reinstatement of the employee. On an appeal the Labour Appellate Tribunal whoso office was situated in Bombay allowed the appeal and therefore the employee filed a petition for a writ in the Bombay High Court to quash the said order of the Labour Appellate Tribunal.
The only question was whether the mere fact that the Labour Appellate Tribunal had its office in Bombay was sufficient to confer jurisdiction upon the Bombay High Court. The learned Chief Justice delivering judgment of the Court of Appeal raised this question and said that (p. 450):
'.....High Court ordinarily exercises territorial jurisdiction when the subject-matter is situated within its jurisdiction or the parties reside within it. Therefore, although we now have the power to issue a writ of certiorari not only within the town and island of Bombay but throughout the territory of the State, that power can only be exercised provided we have jurisdiction either in respect of the subject-matter or in respect of parties.....
Therefore, it is not sufficient to have the power to issue a writ against the Labour Appellate Tribunal. We must also have the jurisdiction to issue that writ. The question is whether on the facts of this case we have the necessary jurisdiction to correct the order made by the Labour Appellate Tribunal.'
Thereafter the learned Chief Justice referred to the Privy Council case of (D) and said that the question was identical in both the cases, one before the Appeal Court and the one before the Privy Council. Thereafter the learned Chief Justice observed as follows (p. 451):
'.... .The subject-matter of the dispute is notwithin the jurisdiction of this Court. It is a dispute with regard to the dismissal by the Madras Electric Tramways Co. of one of its employees and if the dispute had to be agitated in any Court, it could certainly not have been in this High Court. The parties to the dispute, the company and the petitioner,' are also not within the jurisdiction of this Court, and the Court of first instance which gave its award is also not subject to the jurisdiction of this Court either under Article 226 or under Article 227.....
If jurisdiction is a matter of substance, as it should be in a case of a high prerogative writ, then it could not be said that we should interfere in a matter in respect of the subject-matter of which we have no jurisdiction and in respect of the parties to the dispute we have also no jurisdiction,'
So that following the Privy Council decision the Court of Appeal held that jurisdiction was a matterof substance. Now I may say that this decision of the Privy Council has been explained in two decisions of the Supreme Court as not applicable to the construction of Article 226 and which authorities I shall refer to hereafter. Mr. Gupte on behalf of the petitioners relied very strongly on a certain decision of a Full Bench of the Allahabad High Court reported in -- 'Maqbulunissa v. Union of India', : AIR1953All477 (FB) .
In that case a preliminary objection was taken to the hearing of the application on behalf of the Government by the standing counsel, namely that under Article 226 of the Constitution, that Court had no power or authority to issue a writ, direction or order against the Union Government as that Government is not situate within the jurisdiction of that Court.
Sapru J. delivering judgment said that that argument completely ignored the words 'any government' and that the founding fathers knew why Article 226 had been deliberately enacted. Thereafter the learned Judge observed that the executive power of the Union Government is co-extensive with the Union legislative powers and that of the State Government with the State legislative powers and therefore it cannot be said that the Union Government functions only in Delhi merely because its capital is situate at Delhi.
Certain decisions were evidently cited before the Full Bench and they were brushed aside on the ground that those were instances of corporations, joint stock companies and statutory bodies. The learned Judge observed that it could not be said that the Union of India was not within the territorial jurisdiction of the Court inasmuch as it has been given authority throughout the length and breadth of this country and therefore they came to the conclusion that that Court had jurisdiction over the Central Government in the matter of high prerogative writs.
I may state, that this is the ground on which the whole of the argument on behalf of the petitioners has been advanced namely that the Central Government has authority throughout the length and breadth of this country and therefore it is both functioning and located within every State and that inasmuch as it is functioning and located within every State the High Court of that State would have power under Article 226 of the Constitution.
Now as far as this case is concerned it is a matter of some comment that although this is a Full Bench judgment, there is a subsequent judgment of the Allahabad High Court of a Division Bench taking a view contrary to the one expressed by the Full Bench and without making any reference to the Full Bench judgment. That is to be found in the case of -- 'Hafiz Mohd. Yusuf v. Custodian General, Evacuee Properties, New Delhi', : AIR1954All433 .
In that case it was stated that wide as are the powers conferred under Article 226 of the Constitution, a two-fold limitation is placed upon the powers of the High Court. In the first place, the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction' and, secondly, the person or authority to whom the High Court is empowered to issue such writs must be 'within those territories' and that the office of the Custodian General is located in New Delhi where he himself ordinarily resides and the High Court therefore has no power to summon the records of any case in the custody of the office of the Custodian-General and on that ground the preliminary objection was upheld.
No reference is made in this case to the case of -- 'Maqbulunissa v. Union of India (E)', although one of the learned Judges was a party to that Full Bench decision. It may, however, be argued, as argued by Mr. Gupte, that may be because this isa decision where the statutory body is located in Delhi and therefore the reasoning of the Full Bench need not apply. That to my mind is not a satisfactory answer, because it cannot possibly be that under the Constitution it was intended that statutory bodies could not come under Article 226 of the Constitution if located outside the territorial jurisdiction of a High Court and yet the Central Government should be made amenable if located at New Delhi.
Similarly in the case of -- 'Tej Bhan Madan v. Government of India', : AIR1954All522 , it was held that under Article 226 the High Court has no power to give a direction to the opposite party by a writ of mandamus where the order sought to be challenged was passed at New Delhi by the Deputy Secretary to the Government of India. Now, it must be remembered that in this case the writ was asked for similarly as in the petition before me against the Deputy Secretary to the Government of India.
It is remarkable that although the case of --'Maqbulunissa v. Union of India (E)', the Full Bench decision, was cited and is mentioned no reference to the reasoning therein is made although this is a later case, but followed the division bench ruling I have just referred to above. The learned Judge observed that (p. 523):
'.......The Division Bench held in that casethat since the order challenged by the petition for a writ of mandamus was an order passed at New Delhi this Court had no jurisdiction to issue the writ sought for. The circumstances in the case before me are identical and consequently this writ petition cannot be entertained.'
Now, it must be conceded that if the position were as indicated so far by the decisions, the petitioners would have had a very arguable case, but in the light of certain decisions of the Supreme Court none of these decisions appear to survive as good law nor are the observations in -- 'Madras Elec. Tram. Co. v. M.K. Ranganathan (C)' any longer effective as laying down any ratio as regards jurisdiction in the light of the decisions I am shortly to refer to. I will first refer to the case of -- 'Election Commission, India v. Saka Venkata Rao', AIR 1933 SC 210.
It appears that In that case the respondent who had been convicted and sentenced was elected a member of the Madras Legislative Assembly and at the instance of the Speaker the matter was referred to Election Commission which had its offices permanently located at New Delhi, the question being whether the respondent was disqualified.
The respondent applied to the High Court of Madras under Article 226 for a writ. It was held by the Supreme Court that the powers of the High Court to issue a writ under Article 226 of the Constitution were subject to the two-fold limitation, namely, that such writs cannot run beyond the territories subject to its jurisdiction and the person or authority to whom the High Court is empowered to issue such writs must be amenable to its jurisdiction either by residence or location within the territories subject to its jurisdiction and therefore the High Court of Madras had no jurisdiction to issue a writ under Article 226.
It was held further that a tribunal or authority permanently located and normally carrying on its activities outside the territorial jurisdiction of the High Court could not be regarded as functioning within those territorial limits and therefore being amenable to its jurisdiction under Article 226 merely because it exercises its jurisdiction within those territorial limits so as to affect the rights of parties therein.
It may be noted that the Election Commission although located in Delhi held its sittings in Madras and its order was to affect a party in Madras, yet it was negatived that the Election Commission was functioning in Madras so as to attract the jurisdic-tion of the High Court of Madras under Article 226. I am referring to this case because the observations of the Privy Council in -- 'Ryots of Garabandho v. Zemindar of Parlakhimedi (D) which I have referred to have been explained.
Chief Justice Patanjali Sastri traced the history of the High Courts as regards high prerogative writs at p. 1150 and he observed that in that situation the makers of the Constitution decided to provide for certain basic safeguards for the people in the new set-up which were described as fundamental rights and it was thought necessary to provide a quick and inexpensive remedy for the enforcement of such rights and finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded, identically in those circumstances they conferred on the High Courts a similar power exercised by the King's Bench Division in England, but thereafter the learned Chief Justice said this (pp. 212-213):
'....wide as were the powers thus conferred, a two-fold limitation was placed upon their exercise. In the first place, the power is to he exercised 'throughout 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. 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 amen-able 10 its jurisdiction either by residence or location within those territories.'
Thereafter the learned Chief Justice referred to Parlakimedi's case (D) and concluded by saying that they were unable to agree with the trial Court 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 Article 226.
The learned Chief Justice further observed in connection with the substance of jurisdiction as set out by the Privy Council that (p. 213):
'... .We cannot accede to this argument. Therule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority 'within the territories' in relation to which the High Court exercises jurisdiction.'
The learned Chief Justice explained in detail in what particular circumstances the Privy Council had laid down the ratio, namely, in the peculiar situation they were dealing with and held that the mere sittings of the appellate authority in the town of Madras and its order being effective in Madras was not a sufficient basis for the exercise of jurisdiction when both the subject-matter and the authority to make the settlement at first instance were outside the local limits of the High Court of Madras.
In these circumstances it is clear to my mind that this decision although originally cited by Mr. Gupte does not help the petitioners and the observations as regards the limitations under Article 226 as indicated there clearly go contrary to the reasoning set out in the Full Bench decision of the Allahabad High Court which was so ably discussed before me by Mr. Gupte.
But if any further authority were needed that is to he found in the recent decision of the Supreme Court in the case of -- 'K.S. Rashid and Son v. Income-tax Investigation Commission', : [1954]25ITR167(SC) , where it was held that the Punjab High Court bad jurisdiction to issue a writ under Article 22(5) to the Income-tax Investigation Commission located in Delhiand investigating the case of the petitioners although the petitioners were assessees within the State of Uttar Pradesh and their original assessments were made by the Income-tax authorities in the State of Uttar Pradesh.
It was observed as set out in the head-note that Article 226 of the Constitution confers on all the High Courts new and very wide powers in the matter of issuing writs which they never possessed before. That there are only two limitations placed upon the exercise of such powers by a High Court; one is that the power is to be exercised 'throughout 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 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. After setting out the facts Mukherjea J. delivering the judgment of the Supreme Court stated that the Punjab High Court had based the decision to issue writs entirely upon the pronouncements of the Judicial Committee in the well known case of -- 'Ryots of Garabandho v. Zemindar of Parlakimedi (D)'.
The learned Judge discussed the growth of the jurisdiction of different Courts under the Charter and quoted from the judgment of the Privy Council and having done so observed as follows (p. 209):
'It is on the basis of those observations of the Judicial Committee that the learned Judges have held that the mere location of the Investigation Commission in Delhi is not sufficient to confer jurisdiction upon the Punjab High Court to issue a writ in the present case.... . (and) taking, therefore, as thePrivy Council had said, that the question of jurisdiction is one of substance, it was held that no jurisdiction in the present case could be vested in the Punjab High Court, for that jurisdiction could be avoided simply by removal of the Commission from Delhi to another place.'
The learned Judge then observed that this line of reasoning was not proper and the decision, in the Parlakimedi's case (D) was not really of assistance in determining the question of jurisdiction of the High Courts in the matter of issuing writs. He observed that the whole of the subject had been discussed and elucidated in the pronouncement of the Supreme Court in -- 'Election Commission, India v. Saka Venkata Rao (H)'.
After quoting from Chief Justice Patanjali Sastri's judgment in that earlier case the learned Judge stated as follows (p. 210):
'..... .There are only two limitations placedupon the exercise of these powers by a High Court under Article 226 of the Constitution; one is that the power is to be exercised 'throughout 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 he 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 Article 226 of the Constitution is to be determined.'
12. In the light of these two decisions of the Supreme Court to my mind it would be futile to argue that the order is effective throughout the territories of the Union and therefore either that the Central Government is located in Bombay in its broadest and widest sense apart from physical location or that the Central Government comes within the territorial jurisdiction of this Court, although Itcertainly makes its order effective within the jurisdiction of this High Court.
But can it be said that the authority is' located within jurisdiction, namely, the State of Bombay, namely, in the words of the Supreme Court that the person or authority to whom the High Court is empowered to issue writs is amenable to jurisdiction either by residence or location within those territories. To my mind one can take judicial notice of the fact that the Central Government is located in New Delhi apart from the fact that the order is issued at Delhi.
I will concede that Mr. Gupte's argument is sound that it functions throughout the length and breadth of the Union of India, but that to my mind is not something that can attract jurisdiction, because the residence of an aggrieved party on whom the order is served and the fact that the order is carried out within the jurisdiction of this Court is tantamount to saying that such authority is functioning within this territory, but to my mind the observations of the Supreme Court in -- 'Election Commission, India v. Saka Venkata Rao (II)' sufficiently indicate that assumption of jurisdiction is not dependent upon substance, and if it is not dependent upon substance in. the light of the provisions of Article 226 then the mere fact that it functions in the territory of the Bombay State will not 'per se' give jurisdiction to this High Court.
In fact this case to my mind is clearly converse of the case where the Punjab High Court had declined to exercise jurisdiction as in the case of --'K.S. Rashid and Son v. Income-tax Investigation Commission (I)'. The Punjab High Court had declined to do so on the ground that although the authority was within the jurisdiction the petitioners had resided in Uttar Pradesh and their original assessments were made by the Income-tax authorities in Uttar Pradesh.
This was based on the principle laid down in Ryots of Garabandho v. Zemindar of Parlakimedi (D) and that was the ratio on which the Punjab High Court declined to issue a writ in view of the observations of the Privy Council that the question of jurisdiction is one of substance and therefore the Punjab High Court declined to act and the Supreme Court held that the view entertained by the Punjab High Court on the question of jurisdiction could not be sustained. I have been referred to other decisions' by the Attorney-General.
In the light of the observations of the Supreme Court I do not think I can usefully cite those decisions except one decision reported in the Calcutta Weekly Notes, namely, the decision by. Mr. Justice Bose in the case of -- 'Naresh Chandra Sanyal v. Union of India' : AIR1952Cal757 . There the applicant had asked for an appropriate writ for quashing of certain orders passed by the authorities of the Assam Railway against the petitioner.
The learned Judge pointed out that the facts of those cases were distinguishable and a good deal of the force of the observations made by the Judicial Committee in -- 'Parlakimedi's case (D)' had been taken away after the corning into force of the Constitution of India and that under the Constitution the High Court's power to issue writs is confined to the territories within that State. I, therefore, hold that for the reasons indicated above by me this High Court has no jurisdiction to entertain this petition under Article 226 of the Constitution.
13. In disposing of this proceeding on a preliminary issue I have given full consideration to the argument that may be advanced that this is a petition for a writ and unlike a suit it asks for expeditious disposal and immediate relief and that therefore although I have answered this issue against the petitioners I should proceed to hear the petition on the other issues. The grievance attempted to heventilated to my mind sounds more in the nature of damages than otherwise.
The aggrieved party has accepted excisions of certain portions of the film. It must be remembered that it is not as if the petitioners have declined to accept the situation and come to the Court promptly to establish their rights. They have accepted the certificate for what it is worth and have released the film for what it is worth with the excised version and their claim would therefore to my mind be one for the depreciation of the value of the film for which purpose they have other and adequate remedy.
In my opinion it is not for a party to choose whether he will resort to the ordinary law of the land or ask for n writ. The Court has the discretion to decline to act under Article 226 and issue a high prerogative writ unless adequate cause is shown for the exercise of such extraordinary powers.
14. In these circumstances I am of the opinion that this petition should be disposed of on the question of jurisdiction and for reasons set out above. Having held that this High Court has no jurisdiction in this particular matter to issue any writ the petition will stand disposed of and dismissed with costs. The costs of the petition will be taxed.
15. Petition dismissed.