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1955 DIGILAW 89 (PAT)

Surendra Mohan Sinha v. District Traffic Superintendent

1955-08-26

KANHAIYA SINGH, S.K.DAS

body1955
Judgment 1. This is an application for the issue of a writ in which the petitioner has pray- ed that on order of the Controller of Grain Shops, Gorakhpur, dated 6-4-1954 stopping the increment of the petitioner for three years with cumulative effect should be quashed and that the District Traffic Superintendent of Sonepur, Opposite party before us, should be directed not to give effect to the said order of the Controller of Grain Shops; Gorakhpur. 2. The short facts on which the application is based are these. Petitioner Surendra Mohan Sinha was appointed as a clerk in the. Reserve Store Depot, Samaetipur, on . 29-10-1943. On 8-2-1951, the petitioners service in the said depot came to an end and the petitioner reported himself to the Assistant Personnel Officer, Resettlement, O. T. Railway. On 9-2-1951, the petitioners services were placed at the disposal of the General Manager of the said Railway and he was later appointed as a coolie supervisor at Paleza Ghat under the District Traffic Superintendent at Sonepur. In March 1953, the petitioner was appointed under the said District Superintendent as a permanent ticket collector. On 5-12-1953, the petitioner received a chargesheet from the Controller of Grain Shops, North Eastern Railway, Gorakhpur, in, which it was stated that the petitioner was charged with "neglect of duty and slack supervision resulting in loss to the Railway7 in respect of certain matters said to have been committed by the petitioner in November and December 1950. We may state here that the North Eastern Railway is the successor of the old O. T. Railway. The petitioner submitted an explanation to the Controller of Grain Shops, North Eastern Railway, Gorakhpur, and, on 6-4-1954, he received the following order from the Controller: "Your explanation is rejected. Your " increment is stopped for three years with cumulative effect." The petitioner has stated in his petition that a copy of the said order was sent to the District Traffic Superintendent, Sonepur, for necessary action. The contention of the petitioner is that the order of the Controller of Grain Shops, Go rakhpur, was without jurisdiction and cannot be given effect to. Subsequent to the filing of the petition, it has been stated by learned counsel for the petitioner that the District Traffic Superin tendent has passed an order giving effect to the order of the Controller of Grain Shops, Gorakh pur. Subsequent to the filing of the petition, it has been stated by learned counsel for the petitioner that the District Traffic Superin tendent has passed an order giving effect to the order of the Controller of Grain Shops, Gorakh pur. In these circumstances, the petitioner has made two prayers: , (1) that the order of the Controller of Grain Shops, Gorakhpur, be quashed, and (2) that the District Traffic Superintendent, Sonepur, be directed not to give effect to the order of the Controller of Grain Shops, Gorakhpur. We may state here that the District Traffic* Superintendent alone has been made a party to the present application. 3. A preliminary objection has been taken on b½ of the opposite party to the effect that no writ can issue in this case inasmuch as the real order which the petitioner wishes to be quashed is the order of the Controller of Grain Shops, Gorakhpur, the location of whose office and residence is outside the territorial jurisdiction of this Court. 4. In our opinion, the preliminary objection is correct and should be upheld. It is, therefore unnecessary for us to say anything about the merits of the application. We propose now to deal with the preliminary objection, and give our reasons why the preliminary objection should be upheld. 5. It is now well settled that there is -a twofold limitation placed on the power of the High Court under Article 226 of the Constitution. In the first,, place, the power is to be exercised "throughout the territories in relation to which the High Court exercises jurisdiction"; that is to say, the writs issued by the High 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 write must be "within those territories", which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories. See Election Commission, India V/s. Saka Venkata Rao, AIR, 1953 SC 210, at pp. 212 and 213 (A). In the case under our consideration, what the petitioner really seeks is the quashing of the order of the Controller of Grain Shops, Gorakh-pur. It is not disputed that the Controller of Grain Shops, Goraklipur, resides outside the terri-torial jurisdiction of. See Election Commission, India V/s. Saka Venkata Rao, AIR, 1953 SC 210, at pp. 212 and 213 (A). In the case under our consideration, what the petitioner really seeks is the quashing of the order of the Controller of Grain Shops, Gorakh-pur. It is not disputed that the Controller of Grain Shops, Goraklipur, resides outside the terri-torial jurisdiction of. this Court; nor is it disputed that the office of the Controller of Grain Shops, Gorakhpur, is located outside the territorial jurisdiction of the Patna High Court. Mr. B. C. Ghosh, appearing for the petitioner, has stated before us, that he does not now press for that prayer of the petitioner which asks for a quashing of the order of the Controller of Grain Shops. Mr. Ghosh has contended that the ether prayer of the petitioner, namely, that, the District Traffic Superintendent of Sonepur should be directed not to give effect to the order of the Controller of Grain Shops, should be granted inasmuch as the District Superintendent is amenable to the jurisdiction of this Court. 6. This argument of Mr. Ghosh ignores, in our opinion, the real scope and effect of the present application for the issue of a writ. What the petitioner is alleging is that the District Traffic Superintendent of Sonepur is about to give effect to, or has given effect to, the order of the Controller of Grain Shops, Gorakhpur. The real basis of the grievance of the petitioner is that the order of the Controller of Grain Shops, Gorakhpur, is without jurisdiction. We cannot issue a writ to the District Traffic Superintendent of Sonepur, unless we hold that the order of the Controller of Grain Shops, Gorakhpur, is without jurisdiction. In other words, Mr. Ghosh is asking us to do indirectly what this Court cannot do directly for it is now well settled and beyond any dispute that this Court cannot issue a writ in respect of his order against the Controller of Grain Shops, Gorakhpur. To issue such a writ against the Controller of Grain Shops, Gorakhpur, would in effect mean "that this Court will allow a writ issued by it to run beyond the territories subject to its jurisdiction. Mr. P. K. Bose, relied on a Full Bench decision of the Allahabad High Court, -- Azmat Ullah V/s. Custodian, Evacuee Property, U.P., AIR 1955 All 435 (B). Mr. P. K. Bose, relied on a Full Bench decision of the Allahabad High Court, -- Azmat Ullah V/s. Custodian, Evacuee Property, U.P., AIR 1955 All 435 (B). He has, also, placed reliance on a Division Bench decision of this Court in - Section L. Bhardwaj V/s. Chief Medical Officer, Eastern Railway, (S) AIR 1955 Pat 76 (C). In our opinion the Pull Bench decision of the Allahabad High Court is .directly in point. That decision lays down clearly enough that this Court cannot do indirectly what it is prohibited from doing directly. Mr. Ghosh has tried to distinguish the two aforesaid decisions in the following way. He has submitted that there are two classes of decisions; one class deals with orders passed by an authority outside the territorial juris- diction of the High Court which order is communicated to a person residing within the territorial jurisdiction of the High Court. In this class of cases, it has been held, as in the case of CS) AIR 1955 Pat 76 (C), that the application of Article 226 of the Constitution does not depend on the cause of action; the cause of action may arise within the territorial jurisdiction of this Court and yet this Court may not be in a position to issue a writ under Article 226 unless the two conditions laid down in Article 226 are fulfilled. Another class of casts, according- to Mr. Ghosh, are those cases in which a superior authority residing outside the territorial jurisdiction of the High Court has passed an order setting aside the order of an inferior authority residing within the territorial jurisdiction of the High Court; in that class of cases also a writ cannot issue by the High Court within whose territorial jurisdiction the inferior authority is, because an inferior authority cannot be asked to ignore or disobey the order of a superior authority. Mr. Mr. Ghoshs argument further states that, except in the aforesaid two classes of cases, if the authority residing within the territorial jurisdiction of the High Court has not merely to communicate the order of another officer or authority located outside jurisdiction of the High Court, out has to pass an order of his own and the authority which has to pass an order of its own is amenable to the jurisdiction of the High Court then the High Court Is competent to issue a writ against that person or authority. 7. We are unable to accept this argument of Mr. Ghosh. In our opinion, the real test is what has been laid down in the Pull Bench decision of the Allahabad High Court in the case of AIR 1955 All 435 (B), namely, what is the real order-against which the petitioner is coming? What is the real order which the petitioner wishes to get rid of? If that order was passed by an authority which is not amenable to the jurisdiction of the Court in which the application for a writ has been filed, then to ask the Court to issue a writ in respect of such an order is to invite the Court to do indirectly what the Court cannot do directly. This in our opinion, is the real test to be applied in cases of this nature. 8. Applying this test, it is clear to us that the petitioner in tin: present case is really asking us to hold that the order of the Controller of Grain Shops, Gorakhpur, Is without jurisdiction and must, be quashed. We have already stated that the Controller of Grain Shops, Gorakhpur is not amenable to our Jurisdiction and we cannot, therefore, issue a writ in respect of an order passed by the Controller of Grain Shops, Gorakhpur. It seems to us that the remedy which is open to the petitioner is by way of an application to the Allahabad High Court, which has the necessary Jurisdiction over the Controller of Grain Shops, Gorakhpur. 9. For these reasons, we uphold the prelimi nary objection and dismiss the application. In the peculiar circumstances of this case, there will be no order for costs.