judgement:
iminal Appeal No. 43 of 1952 and Petition No. 173 of 1952.
Appeal by Special Leave granted by the Supreme Court on the 11th May, 1951, from the Judgment and Order dated the 11th December, 1950, of the High Court of Judicature at Hyderabad (Manohar Prasad J.) in Criminal Appeal No. 598 of 1950, and Petition under Article 32 of the Constitution.
A. A. Peerbhoy (J. B. Dadachanji, with him) for the appellant.
V. Rajaram Iyer, Advocate General of Hyderabad (R. Ganapathy Iyer, with him) for the respondent.
March 30.
The Judgment Of PATANJALI SASTRI C.J., MUKHERJEA, section R. DAS, and BHAGWATI JJ.
was delivered by MUKHERJEA J. GHULAM HASAN J delivered a separate but concurring judgment.
MUKHERJEA J.
The appellant before us, who in the year 1947 was a Revenue Officer in the District of Warangal within the State of Hyderabad, was brought to trial before the Special Judge of Warangal appointed, under Regulation X of 1359F. on charges of murder, attempt to murder, arson, rioting and other offences punishable under various sections of the Hyderabad Penal Code.
The offences were alleged to have been committed on or about the 9th of December, 1947, and the First Information Report 664 was lodged, a considerable time afterwards, on 31st January, 1949.
On 28th August, 1949, there was an order in terms of section 3 of the Special Tribunal Regulation No. V of 1358 F., which was in force at that time, directing the appellant to be tried by the Special Tribunal (A).
The accused being a public officer, the sanction of the Military Governor was necessary to prosecute him and this sanction was given on 20th September, 1949.
On 13th December, 1949, a new Regulation, being Regulation No. X of 1359F., was passed by the Hyderabad Government which ended the Special Tribunals created under the previous Regulation on and from 16th December, 1949 ; and consequently upon such termination pro vided for the appointment, power and procedure of Special Judges.
Section 4 of the Regulation authorised the Chief Minister to appoint, after consulting the High Court, as many Special Judges as may from time to time be required for the purpose of section 5.
Section 5(1) laid down that every Special Judge shall try (a) such offences of which the trial was immediately before the 16th December, 1949, pending before a Special Tribunal deemed to have been dissolved on that date, and are made over to him for trial by the Chief Minister or by a person authorised by the Chief Minister in this behalf; and (b) such offences as are after the commencement of this Regulation made over to him for trial by the Chief Minister or by a person authorised by the Chief Minister in this behalf.
On 6th January, 1950, the case against the appellant was made over to Dr. Lakshman Rao, a Special Judge of Warangal, who was appointed under the above Regulation under an order of the Civil Administrator, Warangal, to whom authority under section 5 of the Regulation was delegated by the Chief Minister and on the same date the Special Judge took cognizance of the offences.
The trial commenced on and from 11th February, 1950, and altogether 21 witnesses were examined for the prosecution and one for 665 the defence.
The Special, Judge, by his judgment dated the 8th of May, 1950, convicted the appellant of all the offences with which he was charged and sentenced him to death under section 243 of the Hyderabad Penal Code (corresponding to section 302 of the Indian Penal Code) and to various terms of imprisonment under sections 248, 368, 282 and 124 of the Code of Hyderabad (which correspond respectively to sections 307, 436,342 and 148 of the Indian Code).
Against this judgment the appellant took an appeal to the High Court of Hyderabad and the appeal was first heard by a Division Bench consisting of Shripat Rao and section Ali Khan JJ.
On 29th September, 1950, the learned Judges delivered differing judgments, Shripat Rao J. taking the view that the appeal should be dismissed, while the other learned Judge expressed the opinion that the appeal ought to be allowed and the accused acquitted.
The case was then referred to Mr. Justice Manohar Prasad, as a third Judge and by his judgment dated the 11th of December, 1960, the learned Judge agreed with the opinion of Shripat Rao J. and dismissed the appeal upholding the conviction and sentences passed by the Special Judge.
The appellant then presented an application for leave to appeal to this court.
That application was rejected by the High Court of Hyderabad, but special leave to appeal was granted by this court on 11th May, 1951, and it is on the strength of this special leave that the appeal has come before us.
The present hearing of the appeal is confined to certain constitutional points which have been raised by the appellant attacking the legality of the entire trial which resulted in his conviction on the ground that the procedure for trial laid down in Regulation X of 1359F. became void after the 26th of January, 1960, by reason of its being in conflict with the equal protection clause embodied in article 14 of the Constitution.
These grounds have been set forth in a separate petition filed by the appellant under article 32 of the Constitution and following the procedure adopted in the case of Qasim Razvi [Case No. 276 666 of 1951(1)],we decided to hear arguments on the con stitutional questions as,preliminary points in the appeal itself.
Whether the appeal would have to be heard further or not would depend on the decision which we arrive at in the present hearing.
The substantial contention put forward by Mr. Peerbhoy, who appeared in support of the appeal, is that as the procedure for trial prescribed by Regulation X of 1359F. deviated to a considerable extent from the normal procedure laid down by the general law and deprived the accused of substantial benefits to which otherwise he would have been entitled, the Regulation became void under article 13(1) of the Constitution on and from the 26th of January, 1950 The conviction and the sentences resulting from the procedure thus adopted must, therefore, be held illegal and inoperative and the judgment of the Special Judge as well as of the High Court should be quashed.
The other point raised by the learned counsel is that the making over of the case of the appellant to the Special Judge was illegal as the authority to make over such cases was not properly delegated by the Chief Minister to the Civil Administrator in the manner contemplated by section 5 of the Regulation.
As regards the first point, it is to be noted at the out set that the impugned Regulation was a pre Constitution statute.
In determining the validity or otherwise of such legislation on the ground of any of its provisions being repugnant to the equal protection clause, two principles would have to be borne in mind, which were enunciated by the majority of this court in the case of Qasim Razvi vs The State of Hyderabad (1), decided on the 19th of January, 1953, where the earlier decision in Lachman Das Kewalram vs The State of Bombay(1) was discussed and explained.
Firstly, the Constitution has no retrospective effect and even if the law is in any sense discriminatory, it must be held to be valid for all past transactions and for enforce ment of rights and liabilities accrued before the (1) (2) ; 667 coming into force of the Constitution.
Secondly, article 13(1) of the Constitution does not necessarily make the whole statute invalid even after the advent of the Constitution.
It invalidates only those provisions which are inconsistent with the fundamental rights guaranteed under Part III of the Constitution.
The statute becomes void only to the extent of such inconsistency but otherwise remains valid and operative.
As was said in Qasim Razvi 's case(1) the fact that " trial was continued even after 26th January, 1950, under the same Regulation would not neces sarily render the subsequent proceedings invalid.
All that the accused could claim is that what remained of the trial must not deviate from the normal standard in material respects, so as to amount to a denial of the equal protection of laws within the meaning of article 14 of the Constitution.
For the purpose of determining whether the accused was deprived of such protection, we have to see first of all whether after eliminating the discriminatory provisions in the Regulation, it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law; and if so, whether that was actually done in the particular case.
" As has been stated already, the Special Judge took cognizance of this case on the 5th of January, 1950, ' which was prior to the advent of the Constitution.
It must be held, therefore, that the Special Judge was lawfully seized of the case, and it is not possible to say that the appointment of a Special Judge was in itself an inequality.
in the eye of the law.
The trial undoubtedly commenced from the 11th of February, 1950, that is to say, subsequent to the coming into force of the Constitution, and the question that requires consideration is, whether the procedure that was actually followed by the Special Judge acting under the impugned Regulation did give the accused the substance of a normal trial, or, in other words, whether he had been given a fair measure of equality in the matter of procedure ? (1) 668 Mr. Peerbhoy lays stress on two sets of provisions in the impugned Regulation which, according to him, differentiate the procedure prescribed in it from that laid down under the ordinary law.
The first set relates to the elimination of the committal proceeding and the substitution of warrant procedure for the sessions procedure in the trial of offences.
The other set of provisions consists of those which deny to the accused the rights of revision and transfer and withdraw from him the safeguards relating to confirmation of sentences.
The first branch of the contention, in our opinion, is unsustainable having regard to our decision in Qasim Razvi 's case(1).
It was pointed out in that case that under the Hyderabad Criminal Procedure Code the committal proceeding,is not an indispensable preliminary to a sessions trial.
Under section 267A of the Hyderabad Criminal Procedure Code, the Magistrate is quite competent, either without recording any evidence or after recording only a portion of the evidence, to commit an accused for trial by the sessions court if, in his opinion, there are sufficient grounds for such committal.
If the committal proceeding is left out of account as not being compulsory, and its absence did not operate to take away the jurisdiction of the Special Judge to take cognizance of the case before the Constitution, the difference between a warrant procedure prescribed by the impugned Regulation to be followed by the Special Judge after such cognizance was taken and the sessions procedure at that stage applicable under the general law is not at all substantial, and the minor differences would not bring the case within the mischief of article 14 of the Constitution.
This question having been already decided in Qasim Razvi 's case(1) it is not open for further arguments in the present one.
With regard to the other set of provisions, the contention of Mr. Peerbhoy is based entirely upon the language of section 8 of the Regulation.
In our opinion, the interpretation which the learned counsel seeks to put upon the section is not quite correct, (1) 669 and it seems to us that not only the right of an accused to apply for transfer of his case has not been taken away by this section, but the right of revision also has been left unaffected except to a small extent.
Section 8 of the Regulation X of 1359 F. is in these terms: "All the provisions of section 7 of the said Regulation shall have effect in relation to sentences passed by a Special Judge as if every reference in the said Regulation to a Special Tribunal included a reference to a Special Judge.
" The expression "said Regulation" means and refers to Regulation V of 1358 F. and section 7 of the said Regulation provides inter alia that "there shall save as here in before provided, be no appeal from any order or sentence passed by a Special Tribunal, and no court shall have authority to revise such order or sentence or to transfer any case from Special Tribunal or have any jurisdiction of any kind in respect of any proceeding before a Special Tribunal and no sentence of a Special Tribunal shall be subject to or submitted for confirmation by any authority whatsoever.
" It will be noticed that what section 8 of the impugned Regula tion does, is to incorporate, not the whole of section 7 of the previous Regulation, but only such portion of it as relates to sentences passed by a Special Judge.
By "sentence" is meant obviously the final or definitive pronouncement of the criminal court which culminates or ends in a sentence as opposed to an "order", interlocutory or otherwise, where no question of infliction ' of any sentence is involved.
The scope of section 7 of the earlier Regulation is thus much wider than that of present section 8 and all the limitations of the earlier statute have not been repeated in the present one.
The result, therefore, is that revision against any order which has hot ended in a sentence is not interdicted by the present Regulation, nor has the right of applying for transfer, which has no reference to a sentence, been touched at all.
These rights are expressly preserved by section 10 of the present 87 670 Regulation, which makes the Code of Criminal 'Procedure applicable in all matters except where the Regulation has provided otherwise.
Reading section 8 of the present Regulation with section 7 of the earlier one, it may be held that what has been taken away from an accused is, in the first place, the right of revision against non appealable sentences, and in the second place, the provisions relating to confirmation of sentences.
The first one is immaterial for our present purpose, as no question of any non appealable sentence arises in the case before us.
The second is undoubtedly a discriminatory feature and naturally Mr. Peerbhoy has laid considerable stress upon it.
Section 20 of the Hyderabad Criminal Procedure Code lays down the rule relating to confirmation of sentences in the following manner: Every Sessions Judge may pass any sentence authorised by law, but such sentence shall not be carried into effect until (1) in the case of a sentence of 10 years 'impri sonment or more, the appropriate Bench of the High Court; (2) in the case of life imprisonment, the Government; and (3) in the case of death sentence, H.E.H. the Nizam, shall have assented thereto.
Section 302 provides that when a sessions court as passe a sentence of death 'or of life imprisonment or of imprisonment exceeding 10 years, the file of the case shall be forwarded to the High Court and the execution of the sentence stayed until manjuri is given in accordance with section 20.
Section 307 further provides that when the High Court has affirmed a death sentence or sentence of life imprisonment, then its opinion together with the file of the case shall be forwarded ' for ratification to the Government within one week and the sentence shall not be carried into effect until after the assent thereon of H.E.H. the Nizam in the case of death sentences and of the Government in the case of 671 sentences of life imprisonment.
Mr. Peerbhoy 's complaint is that the sentence imposed upon his client has, in the present case, neither been ' confirmed by the High Court, nor by H.E.H. the Nizam.
This, he says, is a discrimination which has vitally prejudiced his client and does afford a ground for setting aside the sentence in its entirety.
admits of no dispute that section 8 of Regulation X of 1359F. must be held to be invalid under articles 13(1) and 14 of the Constitution to the I extent that it takes away the provision relating to confirmation of sentences as is contained in the Hyderabad Criminal Procedure Code.
This, however, is a severable part of the section and being invalid, the provisions of the Hyderabad Criminal Procedure Code with regard to the confirmation of sentences must be followed.
Those provisions, however, do not affect in any way the procedure for trial laid down in the Regulation.
All that section 20 of the Hyderabad Criminal Procedure Code lays down is that sentences of particular description should not be executed unless assent of certain authorities to the same is obtained.
The proper stage, therefore, when this, section comes into operation.
is the stage of the execution of the sentence.
The trial or conviction of the accused is not affected in any way by reason of the withdrawal of the provision relating to confirmation of sentences in the Regulation.
The withdrawal is certainly inoperative and in spite of such withdrawal the accused can insist on the rights provided 'for under the general law.
In the case before us the records show that no reference was made by the Special Judge after he passed the sentence of death upon the appellant in the manner contemplated by section 307 of the Hyderabad Code, which corresponds to section 374 of the Indian Criminal Procedure Code.
There was, however, an appeal preferred by the accused and the entire file of the case came up before the High Court in that connection.
As said already, the Division Bench, which heard the appeal, was divided in its 672 opinion and consequently no question of confirmation of the death sentence could or did arise before that Bench.
The question was, however, specifically raised towards the conclusion of the arguments before the third Judge, to whom it was referred; and it is significant to note that some time before that a Full Bench of the Hyderabad High Court had decided that the provision in the Regulation relating to confirmation of sentences was void and inoperative and consequently in spite of the said provision the sentences were required to be confirmed in accordance with the general law.
The question was then raised whether the confirmation was to be made by the third Judge alone or it had to be done by the two Judges who agreed in dismissing the appeal.
Mr. Justice Manohar Prasad decided that as the whole case was referred to him, he alone was competent to make the order for confirmation of the death sentence and he did actually confirm it by writing out in his own hand the order passing the sentence of death according to the provision laid down in the Hyderabad Code.
Mr. Peerbhoy contends that this confirmation was illegal and altogether invalid as not being made in conformity with the provisions of the Hyderabad Code.
We do not want to express any opinion on this point at the present moment.
There appears on the face of the record an order for confirmation of the death sentence made by a Judge of the High Court.
If this order is not in conformity with the provisions of law, the question may be raised before this court when the appeal comes up for hearing I on its merits.
This is, however, not a matter which affects the constitutional question with which only we are concerned at the present stage.
Under section 20 of the Hyderabad Code, as mentioned above, a death sentence could not be executed unless the assent of H.E.H. the Nizam was obtained.
Mr. Peerbhoy points out that this has not been done in the present case.
To that the obvious reply is that consent of H.E.H. the Nizam is necessary only before the sentence is executed, and that stage apparently 673 has, not arrived as yet.
The final judgment of the High Court in this case was passed on 11th December, 1950.
There was an application for leave to appeal presented by the accused immediately after that date and this application was rejected on 2nd January, 1951.
On the 5th of February, 1951, an application for special leave was made to this court and the execution of the death sentence was stayed during this period under orders of the High Court itself.
The special leave was granted by this court on 11th May, 1951, and the carrying out of the death sentence has been stayed since then under our orders, pending the disposal of the appeal.
The question as to whether any further confirmation by H.E.H. the Nizam is necessary could only arise if and when the death sentence passed by the courts below is upheld by this court.
Mr. Peerbhoy points out that since the 1st April, 1951, the Indian Criminal Procedure Code has been introduced in the State of Hyderabad and there is no power in the Nizam now to confirm a sentence of death, although such confirmation was necessary at the time when the sentence was pronounced both by the Special Judge as well as by the High Court on appeal.
We do not think that it is at all necessary for us at the present stage to discuss the effect of this change of law.
If the assent of the Nizam to the execution of a death sentence is a matter of procedure, it may be argued that the procedural law which obtains at the present moment is the proper law to be applied.
On the other hand, if it was a question of substantive right, it may be open to contention that the law which governed the parties at the date when the trial began is still applicable.
We are, however, not called upon to express any opinion on this point and we deliberately decline to do so.
We also do not express any opinion as to whether the rights which could be exercised by the Nizam under section 20 of the Hyderabad Criminal Procedure Code were appurtenant to his prerogative as a sovereign or were statutory rights exercisable by the person designated in the statute.
These matters 674 may be considered when the appeal comes up for final hearing on the merits.
Our conclusion is that there has not been any discrimination in matters of procedure in this case which can be said to, have affected f the trial prejudicially against the accused and the accused is not entitled to 'have his conviction and sentence set aside on that ground.
The other question raised by the appellant relates to delegation of the authority by the Chief Minister to make over cases for trial by the Special Judge.
Mr. Peerbhoy lays 'stress on section 5 (b) of the Regulation which speaks of offences being " made over to the Special Judge for trial by the Chief Minister or by a person authorised by the chief Minister in this behalf ", and it is argued that this section requires that the delegatee is to be mentioned by name.
What the Chief Minister has done is that he issued a notification authorising all civil administrators of the districts to exercise within their respective jurisdictions the powers of the Chief Minister under the said section.
This, it is argued, is not in compliance with the provisions of the section.
We do not think there is any substance in this contention.
The delegates can certainly be described by reference to his official designation and the authority may be vested in the holder of a particular office for the time being.
This, we think, is quite a proper and convenient way of delegating the powers which are exercisable by the Chief Minister.
In our opinion, the constitutional points raised by Mr. Peerbhoy fail.
The application under article 32 of the Constitution is thus rejected and the case is directed to be posted in the usual course for being heard on its merits.
GHULAM HASAN J. I concur in the order proposed by my learned brother Mr. Justice Mukherjea that the petition under article 32 of the Constitution be dismissed, but I deem it necessary to make a few observations in view of my dissenting judgment in Qasim Razvi 's case(1).
The majority judgment delivered by Mr. Justice Mukherjea on the.
19th January, 1953, in (1) [1952] S C R, 710.
675 Qasim Razvi 's case(1) while interpreting the decision in Lachmandas Kewalram Ahuja vs The State of Bombay(1) laid, down the principle that the mere fact that some of the provisions of the impugned Regulation are discriminatory on the face of it, is not sufficient to render the trial and the conviction void under article 14, read with article 13 (1) of the Constitution and that in such cases where the trial is continued after the 26th January, 1950, under the impugned Regulation, it is necessary to see whether the procedure followed after the material date was such as deprived the accused of the equal protection of laws within the meaning of article 14 of the Constitution and that if the accused under such procedure received substantially the benefits of the trial under the ordinary law, the trial and conviction cannot be held as void and illegal.
I take it that the majority decision is binding and that the principle enunciated by the majority is no longer open to question.
With this preliminary observation I must proceed to express my concurrence generally with the view taken by my learned brother Mr. Justice Mukherjea in the present case.
It is to be borne in mind that Regulation V of 1358 F. under which the Tribunal was constituted to try Qasim Razvi 's case was in material respects different from Regulation X of 1359 F. under which the Special Judge tried the petitioner Habeeb Mohammad.
I agree with my learned brother in holding that there was no flaw in making over the case of the petitioner for trial to the Special Judge under section 5 (b) of the Regulation.
The Special Judge took cognizance of the case before the Constitution came into force, but the entire evidence of the prosecution, unlike Qasim Razvi 's case, was recorded after the 26th of January, 1950.
The Regulation in question was challenged before us as being void under article 14 read with article 13(1) of the Constitution on the following grounds: (1) (2) 676 (1) that the Regulation excludes the committal proceedings, (2) that the procedure of the sessions trial is replaced by the warrant procedure, (3) that there is no right of transfer, (4) that there is no revision, (5) that the right of confirmation by the Nizam in case of sentences of death has been negatived.
As regards the first two grounds, Mr. Justice Mukherjea, following the view taken in Qasim Razvi 's case(1) has held that under section 267A 'of the Hyderabad Criminal Procedure Code committal proceedings are not compulsory and that there is no substantial difference , between the sessions trial and the warrant procedure which was followed in the petitioner 's case.
These two grounds of attack there.
fore disappear.
So far as grounds Nos.
(3) and (4) are concerned, I agree with Mr. Justice Mukherjea in his interpretation of section 8 of the Regulation and hold in concurrence with the view taken by him that the right to apply for transfer has not been taken away and that the right of revision has been denied only in so far as non appealable sentences are concerned.
The present is a case of murder and other serious offences which are undoubtedly all appealable.
The only discriminatory feature of the Regulation left therefore is that no sentence of a Special Tribunal shall be subject to or submitted for confirmation by any authority whatsoever contained in section 7 (2) of Regulation V of 1358F which is made applicable,under section 8 of Regulation X of 1359 F., in other words, that the right of the Nizam to confirm the death sentence has been taken away.
This is un questionably a valuable right available to the accused who is sentenced to death by the Sessions Judge or the High Court as the case may be.
We were told by Mr. Peerbhoy, counsel for the petitioner, that no death sentence passed by the ' courts in Hyderabad during the last 50 years or go has ever been carried into effect and that the Nizam has always exercised (1) , 677 this right in favour of commuting the death sentence to.a sentence for life.
The denial of this right in the Regulation is discriminatory on the face of it and deprives the petitioner of a valuable right.
I concede, however, that this objectionable feature of the Regulation is severable from the other parts.
I further agree that the stage for the exercise of that right has not yet arisen, for the appeal of the petitioner is still pending in this court.
If the appeal is allowed, or the sentence is reduced, no question of the confirmation of the death sentence by the Nizam will arise.
If, however, the appeal is dismissed, it will be open to the petitioner to claim this right.
It would not be desirable at this stage to express an opinion whether this right is a substantive right which vests in the petitioner or one relating to a more matter of procedure, as that question will have to be considered and decided when the appropriate stage arrives.
I would, therefore, agree in dismissing the petition.
Petition dismissed.
Agent for the petitioner: Bajinder Narain.
Agent for the respondent : G. H. Rajadhyaksha.

summary:
In determining the validity or otherwise of a pre Constitution statute on the ground of any of its provisions being repugnant to the equal protection clause of the Constitution, two principles 86 662 have to be borne in mind.
Firstly, the clause bag no retrospective effect and even if the law is in any sense discriminatory, it must be held to be valid for all past transactions and for, enforcement of rights and liabilities accrued before the coming into force of the Constitution.
Secondly, article 13 (1) of the Constitution does not necessarily make the whole statute invalid even after the advent of the Constitution.
It invalidates only those provisions which are inconsistent with the fundamental rights guaranteed under Part III of the Constitution.
Further, the fact that trial was continued even after 26th January, 1950, under the earlier Regulation which is in some respects discriminatory would not necessarily render the subsequent proceedings invalid.
All that the accused could claim is that what remains of the trial must not deviate from the normal standard in material respects, so as to amount to a denial of the equal protection of laws within the meaning of article 14 of the Constitution.
For the purpose.
of determining whether the accused was deprived of such protection, the Court has to see first of all whether after eliminating the discriminatory provisions in the Regulation, it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law; and if so, whether that was actually done in the particular case.
On the 5th January, 1950, the case of the accused who was charged with murder, arson, rioting and other offences which was pending before a Special Tribunal was made over to a Special Judge in pursuance of the provisions of the Hyderabad Regulation X of 1359 F., which abolished the Special Tribunal Regulation of 1949.
The trial commenced on the 11th February, 1950, after the new Constitution came into force and the accused was convicted and sentenced to death.
His appeal was dismissed and the sentence of death was ultimately confirmed by the High Court.
It was contended that the entire trial was illegal inasmuch as the Regulation under which the accused was tried contained several provisions which were in conflict with the equal protection clause (article 14) of the Constitution and became void after the 26th January 1950.
Held, (1) The provisions in the Regulation eliminating committal proceedings and substituting the warrant procedure for sessions procedure in the trial of offences did not render the trial illegal as the committal proceeding was not an indispensable preliminary to a sessions trial under the Hyderabad Criminal Procedure Code.
(2) On a proper interpretation of section 8 of the Regulation the right of an accused to apply for transfer of his case was not taken away and the right of revision was taken away only in respect of non appealable sentences.
(3)Section 8 of the Regulation was void in so far as it took away the provisions relating to confirmation of sentences but as this part of the Regulation was severable from the remaining 663 portion of the section the provisions of the Hyderabad Criminal Procedure Code relating to confirmation of sentences could be followed, and those provisions did not in any way affect the procedure for trial laid down in the Regulation.
(4)The fact that the Nizam 's consent had not been obtained could not vitiate the trial as such consent is necessary only before execution of the sentence.
Held also, that the delegation of the authority of the Chief Minister to make over cases for trial to the Special Judge, by a general notification authorising all civil administrators of the districts to exercise within their respective jurisdictions the powers of the Chief Minister under section 5 (b) was not invalid.
Section 5 (b) does not require that the delegatee must be mentioned by name.
Qasim Bazvi 's case ([1953] S.C.R. 589) applied.


judgement:
Appeal No. 356 of 1962.
Appeal by special leave from the judgment and order dated December 13, 1960, of the Andhra Pradesh High Court in Writ Petition No. 46 of 196O. A.V. Viswanatha Sastri, B. Parthasarthi and R.vasudev Pillai, for the appellant.
D. Narsaraju, Advocate General for the State of Andhra Pradesh, K. R. Choudhri and P. D. Menon, for the respondents.
January 22.
The judgment of the Court was delivered by HIDAYATULLAH, J.
This is an appeal by special leave against the judgment and order of the High Court of Andhra Pradesh dated December 13, 1960, dismissing Writ Petition No. 46 of 1960.
The petitioner is the appellant before us.
The respondents to this appeal are the Government of Andhra 673 Pradesh and the Chairman of the Tribunal for Disciplinary Proceedings, Andhra Pradesh.
The appellant was a servant in the Hyderabad Revenue Service and in 1956 was holding the post of Deputy Secretary to the Government in the Public Works Department.
On a report submitted by the C.I.D. the Government of Andhra Pradesh ordered an inquiry under section 4 of the Hyderabad Public Servants (Tribunal of Enquiry) Act, 1950 (Hyderabad Act No. XXIII of 1950) by the Tribunal for Disciplinary Proceedings.
The Tribunal enquired into 19 charges and submitted its report on July 11, 1959.
The Tribunal found 4 charges proved and in view of the first charge which involved acceptance of a bribe and charge No. 14 which related to tampering with official records, the Tribunal recommended that the appellant be dismissed from service.
After due notice to the appellant the Government of Andhra Pradesh ordered the dismissal of the appellant.
The appellant thereupon moved a petition under Article 226 of the Constitution requesting that the order passed by Government be quashed.
The appellant, inter alia, contended that under the Hyderabad Public Servants (Tribunal of Enquiry) Act, 1950, the Tribunal could only consist of persons who were judicial officers employed as Sessions judges in the territory of India for a period of not less than 3 years.
He contended that though the enquiry had properly commenced before Mr. R. Bhaskara Rao, who func tioned as the Disciplinary Proceedings Tribunal up to April 19, 1959, he was succeeded by Mr. M. Sriramamurthy who was not qualified but who heard the arguments and submitted the report He contended that Mr. Sriramamurthy had not held the office of a Sessions judge for three years.
The only question, which was considered by the Andhra Pradesh High Court, was whether in the circumstances Mr. Sriramamurthy was disqualified to act as the Tribunal.
The High Court held that in view of the provisions of the States Reorganisation Act and 674 the Notification issued by the Government of Andhra Pradesh on November 1, 1956, by which the Tribunal for Disciplinary Proceedings in Andhra Pradesh was named as the authority to function under the Hyderabad Public Servants (Tribunal of Enquiry) Act, 1950, Mr. Sriramamurthy was competent to exercise functions exercisable under the Hyderabad Act.
The High Court accordingly dismissed the petition.
It is contended by Mr. Vishwanath Sastri that the appointment of Mr. Sriramamurthy was incompetent because he was not qualified to act as the Tribunal of Enquiry under the Hyderabad Act.
We are concerned with the Hyderabad Act and the (Act No. XXXVII of 1956).
The relevant provisions of the first Act are sections 3 and 4 and they may now be seen.
Section 3 of the Hyderabad Public Servants (Tribunal of Enquiry) Act 1950, in so far as it is material, read as follows: "3.
(1) A Tribunal consisting of one or more members shall be constituted for the purpose of this Act.
(2) Every member of the Tribunal shall be a judicial officer who has been employed as a Sessions judge in the territory of India for a period of not less than three years . . . . " Section 4 read as follows "4.
Government may, and in such cases, if, any.
as may be prescribed, shall refer to the Tribunal for enquiry and report any case involving an allegation of misconduct or inefficiency or disloyalty on the part of a public servant.
" 675 The corresponding provisions in the State of Andhra before the formation of the State of Andhra Pradesh were the.
Andhra Civil Services (Disciplinary Tribunal) Rules, 1953, which were made under the proviso to article 309 of the Constitution.
Under those Rules which came into force on October 1, 1953, it was provided : "3.
(a) The Tribunal shall consist of one judicial officer of the status of District and Sessions judge.
" (Proviso omitted) It is admitted that Mr. M. Sriramamurthi held the qualification under this Rule.
On November 1, 1956, the State of Andhra Pradesh was formed by the amalgamation, among others, of portions of Hyderabad State with the State of Andhra.
The contemplating the existence of diverse laws on the same subject in the integrated units provided for the conflict of laws.
Under section 115 which related to services it was provided that every person who immediately before the appointed day was serving in connection with the affairs of an existing State, parts of whose territories were transferred to another State, would from that date provisionally continue to serve in connection with the affairs of the successor State to that existing State unless he was required to serve provisionally in Connection with the affairs of any other successor State.
Under this section the appellant automatically began to serve the successor State, namely, the State of Andhra Pradesh.
Section 120 gave the power to the State Government to adapt laws.
It provided that the Government of the succeeding State could make adaptations and modifications of the law of an existing State whether by way of repeal or amendment, as may be necessary or expedient, and after 676 such adaptations, every such law was to have effect until ;altered, repealed or amended by a competent Legislature or other competent authority.
Section 121 gave a special power to Courts, Tribunals and authorities to construe the laws where no provision or insufficient provision has been made for the adaptation of a law to facilitate the application of the law in relation to any State newly formed though without affecting the substance of the matter.
Section 122 then provided as follows: "122.
The Central Government, as respects any State, and the State Government as respects any new State or any transferred territory.
may by notification in the Official Gazette specify the authority, officer or person who, as from the appointed day, shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification and such law shall have effect accordingly.
" Finally, section 127 read as follows "127.
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.
" It will, therefore, be seen that the applies even if it is inconsistent with anything in the Hyderabad Public Servants (Tribunal of Enquiry) Act, 1950.
By reason of section 127 and the power granted by section 122 it was competent to the Government of Andhra Pradesh to name an authority under the Hyderabad Act even though that authority might not have been qualified under the latter Act.
The concluding words of section 122 shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification and such law 611 shall have effect accordingly" show that on the notification issuing under section 122 the existing law itself is to have effect in a different manner.
The argument of Mr. Vishwanath Sastri that before the Hyderabad Act could be departed from, it had to be adapted under section 120 by substituting an authority different from that named in section 3 therefore might have been effective if section 122 had not concluded in the manner indicated above.
Section 122 by its very terms makes the Hyderabad Act speak in accordance with a notification issued under section 122.
That Act after the notification applies in accordance with the notification and pro tanto is adapted by the Notification.
In our opinion adaptation of the Hyderabad Act under section 120 was not a condition precedent to the issuance of the Notification and the Notification having issued the Hyderabad Act applied accordingly and the appointment of Mr. Sriramamurthy was therefore valid.
We agree with the High Court in its conclusion.
The appeal fails and is dismissed with costs.
Appeal dissmissed.

dataset_name: IN-Abs

summary:
The appellant was a servant in the Hyderabad Revenue Service and was holding the post of Deputy Secretary to the Government in the Public Works Department.
The Government of Andhra Pradesh ordered an enquiry by the Tribunal for Disciplinary proceedings.
The Tribunal enquired into the charges and recommended the dismissal of the appellant from service and after due notice to the appellant the Government of Andhra Pradesh ordered his dismissal.
The appellant thereupon moved a petition under article 226 of the Constitution for quashing the aforesaid order, which was dismissed by the High Court.
In this Court it was urged by the appellant that the appointment of Mr. Sriramamurthy was incompetent as he was 672 not qualified to act as the Tribunal of Enquiry under the Hyderabad Act.
Held, that by virtue of section 127 thereof the States Reorgani sation Act applied even if it was inconsistent with anything in the Hyderabad Public Servants Act, 1950.
By reason of section 127 and the power granted by section 122 it was competent to the Government of Andhra Pradesh to name an authority under the Hyderabad Act even though that authority might not have been qualified under the latter Act.
The concluding words of section 122 shew that on the notification issuing under section 122 the existing law itself was to have effect in a different manner.
Section 122 thug made the Hyderabad Act speak in accordance with the notification issued under section 122.
That Act after the notification applied in accordance with the notification and was pro tanto adapted by the Notification.
The adaptation of the Hyderabad Act under section 120 was not a condition precedent to the issuance of the notification and Notification having issued the Hyderabad Act applied accordingly and the appointment of Mr. Sriramamurthy was therefore valid.


judgement:
N: Civil Appeal No. 569 of 1961.
Appeal by special leave from the order dated September 9, 1960, of the Chief Commissioner, Pondicherry in Appeal No. 94 of 1960.
WITH Writ Petition No. 347 of 1960.
Petition 'tinder article 32 of the Constitution of India for enforcement of Fundamental Rights.
658 N. C. Chatterjee, R. K. Garg and section C. Agarwala for the Appellant.
C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and R. N. Sachthey, for respondent No. 1 (in C. A. No. 569/61).
R. Mahalinga Iyer, for respondent No. 2 (in C.A.569/61).
N. C. Chatterjee, R. K. Garg and section C. Agarwala, for the petitioner and the intervener.
C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and R. N. Sachthey, for respondent No. 1 (in W. I,.
No. 347/60).
R. Thiagarajan, for respondent No. 3 (in W. P. No. 347/60).
January 22.
The judgment of the Court was delivered by WANCHOO, J.
The appeal and the writ petition arise out of the same order of the Chief Commissioner of Pondicherry acting as the appellate authority under the Motor Vehicles Act and will be dealt with together.
The petitioner is one of fourteen persons who had applied for a stage carriage permit before the State Transport Authority, Pondicherry.
The petitioner 's application was rejected and the permit was granted to Perumal Padayatchi, one of the respondents before us.
The State Transport Authority considered various factors one of which was that Perumal Padayatchi was a native of Pondicherry and taking all the factors into account, the permit was granted to Perumal Padayatchi.
The petitioner went in appeal before the Appellate Authority, who is the Chief Commissioner of Pondicherry.
The Appellate Authority dismissed 659 the appeal and observed that even if it were conceded.
that the claim% of the petitioner were more or less equal to those of Perumal Padayatchi, the latter would be entitled to preference on the ground that he is a native of Pondicherry.
We may.
add that though the petitioner used to live in Pondicherry, he was not a native of Pondicherry.
This order rejecting the appeal was passed on September 9, 1960.
The appeal has been filed with special leave against this order. 'I he petitioner has also filed the writ petition against this order in which he raises, the same points.
The main contention urged on behalf of the petitioner is that the order of the appellate Authority shows that preference was granted to Perumal Padayatchi on the ground that he was a native of Pondicherry (i. e. he was born in Pondicherry), while the petitioner was merely a resident of Pondicherry (i. e. he was born in Pondicherry).
The petitioner contends that such grant of preference on the ground of place of birth is hit by article 15 of the Constitution as the petitioner is a citizen of India, and article 15 lays down that "the State shall not discriminate against any citizen on grounds only of religion, race, case, sex, place of birth or any of them".
This contention of the petitioner is met on behalf of the respondents in this way.
The respondents submit that at the relevant time, Pondicherry was not within the territory of India and the Constitution did not apply to it.
Therefore, the petitioner would have no right to apply to this Court for special leave under article 136 of the Constitution; nor would the petitioner have a right to proceed by way of a writ petition under article 32 against an order which was passed by the Appellate Authority in Pondicherry at a time when Pondicherry was not in the territory of India.
Reliance in this connection is placed on behalf of the respondents on the decision of this 660 Court in N. Masthan Sahib vs Chief Commissioner, Pondicherry(1) The petitioner also relies on the same decision of this Court.
It is conceded on his behalf that in view of that decision it was not open to the petitioner to apply to this Court under article 136 and therefore the appeal may not be maintainable.
But it is urged that under article 12 ,,,the State" for the purpose of part III of the Constitution is defined to include " 'the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India".
It is therefore contended that even though Pondicherry was not a part of India when the order under challenge was passed, the Appellate Authority which passed the order was a "local or other authority under the control of the Government of India" and therefore was amenable to a writ under article 32 of the Constitution.
Further it is urged that whatever may have been the position when Masthan Sahib 's case (1), wag decided, Pondicherry is now within the territory of India since August 1962 and therefore this Court can now issue a writ to the Appellate Authority if the order under challenge, violates article 15 of the Constitution.
The respondents however contend that the fact that Pondicherry is now within the territory of India makes no difference in the application of the decision in Masthan Sahib 's case (1).
It is submitted that the reasons which led the majority in that case to refuse to issue a writ clearly imply (even if there is no actual decision in express terms on the question now raised) that a judicial or quasi judicial authority cannot be said to be an authority "under the control of the Government of India" within the meaning of article 12, and therefore the.
Appellate Authority which was a quasi ,judicial authority was not under the (1) [1962] Supp. 1 S.C.R. 981.
661 control of the Government of India and could not be amenable to a writ under article 32 at the time when the order under challenge was passed.
Further as the Constitution is not retrospective in operation the fact that Pondicherry since August 1962 is part of the territory of India would not give this Court jurisdiction to issue a writ now when it could not issue a writ to the Appellate Authority in September, 1960, even reading article 32 along with article 12 of the Constitution.
Before we come to consider the questions thus raised in the writ petition, we may state that so far as the appeal is concerned, it is concluded by the decision in Masthan Sahib 's case (1).
Article 136 gives power to this Court to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
Admittedly, Pondicherry was not within the territory of India when the order was passed and therefore article 136 would not apply to such an order.
We have already indicated that this position is conceded on behalf of the petitioner.
So far therefore as the appeal is concerned it must be dismissed on the authority of Masthan Sahib 's case (1), though in the circumstances we shall pass no order as to costs.
Turning now to the writ petition, the main question that falls for consideration is the effect of article 12 and whether on a proper interpretation of that Article, the Appellate Authority could in this case be said to be " 'a local or other authority under the control of the Government of India".
It is submitted on behalf of the respondents that this matter is also concluded by the decision of the majority in Masthan Sahib 's case (1), and that the effect of that decision is that a judicial or a quasijudicial authority would not be an authority "under the control of the Government of India". ' On the (1) [1962] Supp. 1 S.C.R. 981.
662 other hand, the petitioner contends that there was no such decision in that case as will appear from the concluding portion of the judgment and therefore the question is open for consideration before us.
As both parties rely on that decision we may quote the relevant part thereof.
Before we do so we may mention that the decision in that case was in two parts, the first part being delivered on April 28, 1961 and the final part on December 8, 1961, though the report contains only the final part.
Relevant part of that decision which appears in the first part delivered on April 28, 1961, is as below : "Learned counsel pointed out that for the purpose of the exercise of this Court 's power under article 32 of the Constitution for the enforcement of the fundamental rights its jurisdiction was not limited to the authorities functioning within the territory of India but that it extended also to the giving of directions and the issuing of orders to authorities functioning even outside the territory of India provided that such authorities were subject to the control of the Government of India.
This submission.appears to us well founded and the power of this Court under article 32 of the Constitution is not circumscribed by any territorial limitations it extends not merely over every authority within the territory of India but also those functioning outside, provided that such authorities are under the control of the Government of India".
Then after considering articles 142 and 144 of the Constitution and pointing out that in view of the limitations imposed by article 142 on the territory within which alone the orders or directions of this Court could be directly enforced, a question was posted whether a writ in the nature of certiorari or 663 other appropriate order or direction to quash a quasi judicial order passed by an authority outside the territory of India, though such authority is under the control of the Government of India could issue.
The majority judgment observed as follows in answer to the question thus posed : "If the order of the authority under the control of the Government of India but functioning outside the territory of India was of an executive or administrative nature, relief could be afforded to a petitioner under article 32 by passing suitable orders against the Government of India directing them to give effect to the decision of this Court by the exercise of their powers of control over the authority outside the territory of India.
Such an order could be enforceable by virtue of article 144, as also article 142.
But in a case where the order of the outside authority is of a quasi judicial nature, as in the case before us, we consider that resort to such a procedure is not possible and that if the orders or directions of this Court could Dot be directly enforced against the authority in Pondicherry, the order would be ineffective and that the Court will not stultify itself by passing such an order." In the final order, however, at p. 1009 of the Report, the majority observed as follows: "The writ petitions must also fail and be dismissed for the reason that having regard to the nature of the relief sought and the authority against whose orders relief is claimed they too must fail.
They are also dismissed.
We would add that these dismissals would not preclude the petitioners from approaching this Court, if so desired in the event of Pondicherry becoming part of the territory of India".
664 it is contended on behalf of the petitioner that the majority decision in that case seems to imply that the Appellate Authority was under the control of the Government of India as otherwise it would not have been necessary to put the two questions which were out to the Government of India by the first part of the decision.
Further it is contended that the observations in the final part of the judgment that the petitioners in that case were not precluded from approaching this Court, if so desired, in the event of Pondicherry becoming part of the territory of India, also show that it was not held in that decision that judicial or quasi judicial authorities could not be under the control of the Government of India.
On the other hand, it is contended on behalf of the respondents that judicial or quasi judicial authorities were not under the control of the Government of India, for if they were a writ would have been issued in that case in the same way as in the case of an executive or administrative authority, i.e. a writ could issue to the Government of India "directing them to give effect to the decision of this Court by the exercise of their powers of control over the authority outside the territory of India".
We have carefully considered the observations in the majority decision in this connection and it must be held that that decision is not a direct authority on the question that is now posed before us., for the point was not then specifically raised; and expressly decided, though as we will later point out, the implication of the said decision is against the contention raised by the petitioner.
We have therefore to examine the contentions of either party as to the exact scope and effect of the words " 'all local or other authorities within the territory of India or under the control of the Government of India", as if the question is res integra.
The first contention on behalf of the petitioner is that the words " 'under the control of the Government 665 of India" in article 12 do not qualify the word "authorities" therein but qualify the word "territory".
The petitioner would therefore read the relevant words of article 12 like this : "All local or other authorities within the territory of India or all local or other authorities within the territory under the control of the Government of India".
Thus, according to the petitioner, all that is required is that the territory even if it is not the territory of India, should be under the control of the Government of India, and if the territory is under the control of the Government of India all, local or other authorities in such territory would be included in the words "the State".
On the other hand, the contention on behalf of the respondents is that the words "under the control of the Government of India" qualify the word "authorities" and not the word "territory" in the relevant part of article 12 and that that part on its true interpretation would read thus : "all local or other authorities within the territory of India or all local or other authorities under the control of the Government of India".
Having given our anxious consideration to this matter we are of opinion that the interpretation put on the relevant words on behalf of the respondents is the right one, both gramatically and otherwise.
article 12 gives an inclusive definition of the words "the State" and within these words of that Article are included, (i) the Government and Parlia ment of India, (ii) the Government and the legislature of each of the States, and (iii) all local or other authorities.
These are the only authorities which are included in the words "the State" in article 12 for the purpose of Part III.
Then follow the words which qualify the words "all local or other authorities".
These local or other authorities which are included within the words " 'the State" of article 12 are of two kinds, namely, (i) those within the territory of India, and (ii) those under the control of the 666 Government, of India.
There are thus two qualifying clauses to "all local or other authorities.
" These clauses are : (i)within the territory of India and (ii) under the control of the Government of India.
It would in our opinion be gramatically wrong to read the words "under the control of the Government of India" as qualifying the word territory".
From the scheme of ' article 12 it is clear that three classes of authorities are meant to be included in the words ',the State", there; and the third class is of two kinds and the qualifying words which follow "all local or other authorities" define the two types of such local or other authorities as already indicated above.
Further all local or other authorities within the territory of India include all authorities within the territory of India whether under the control of the Government of India or the Governments of various States and even autonomous authorities which may not be under the control of the Government at all.
In contradistinction to this the second qualifying clause refers only to such authorities as are under the control of the Government of India and so the second qualifying clause must govern the word "authorities". ' Therefore, the interpretation put forward on behalf of the respondents seems to us to be correct both gramatically and otherwise.
"All local or other authorities" would thus be of two kinds, namely, (i) those within the territory of India, and (ii) those under the control of the Government of India.
In the latter case there is no qualification that they should be within the territory of India.
It is enough if they are under the control of the Government of India wherever they may be.
We are therefore of opinion that no writ could issue to the appellate authority at the time when the order under challenge was passed, unless it could be called "other authority under the control of the Government of India Further,, there can be no doubt that if no writ could issue to the Appellate Authority at the time the order was passed, no writ could issue now after 667 Pondicherry has become part of the territory of India, for that would be giving retrospective operation to the Constitution for this purpose which obviously cannot be done: (see Janardan Reddy vs the State(1)).
The next question is whether a judicial or quasijudicial authority outside the territory of India but within the territory under the administration of the Government of India can be said to be under the control of the Government of India.
For this purpose we have to find out the meaning of the words "under the control of the Government of India" as used in article 12.
It is submitted on behalf of the petitioner that if an authority is appointed by the Government of India, is paid by the Government of India and is liable to disciplinary action by the Government of India, it would be an authority "under the control of the Government of India".
It is urged that as the Chief Commissioner, who is the appellate Authority, was appointed by the Government of India, was paid by the Government of India and was under the disciplinary control of the Government of India, he would be an authority under the control of the Government of India and this court would therefore have been entitled to issue a writ against him even when the order was passed and therefore all the more so,, when Pondicherry is now within the territory of India.
The contention however that this Court could issue a writ under article 32 against the Appellate Authority even at the time when the order was passed, is clearly negatived by the majority decision in Masthan Sahib 's case (2), for if that could be done, writ would have been issued in that case.
The reason why writ was not issued in Masthan Sahib 's case (2), was that the quasi judicial authority was outside the territory of India and this Court held that if the authority were of an executive or administrative nature, a writ could have been issued to the Government of India ""directing them to give effect to the decision of this Court by the exercise of their powers (1) ; (2) [1962] Supp. 1 S.C.R. 981. 668 of control over the authority outside the territory of India".
But as the authority in that case 'just like the authority in the present case was a quasi judicial authority resort to such a procedure was not possible and if the orders or directions could not be directly enforced against the authority in Pondicherry, the order would be ineffective.
This clearly implies that the quasi judicial authority was not under the control of the Government of India like an executive or administrative authority and therefore it was not possible for this Court to issue a direction to the Government of India to direct a quasi judicial authority to give effect to the decision of this Court "by the exercise of their powers of control over the authority outside the territory of India".
It follows from these observations in the majority decision in that case that the control envisaged by the words "under the control of the Government of India" in article 12 is not the control which arises out of mere appointment, payment and the right to take disciplinary action; the control envisaged under article 12 is a control of the functions of the authorities concerned, and the right of the Government of India by virtue of that control to give directions to the authority to function in a particular manner with respect to such functions.
Now if the authorities were administrative or executive the control of the Government of India would not only be by virtue of appointment, payment and disciplinary action, but it would also extend to directing the authority to carry out its functions in a particular manner and a purely executive or administrative authority can always be directed by the Government of India under which it is functioning to act in a particular manner with respect to its functions.
This, however,cannot be said of a quasi judicial or judicial authority even though the Government of India may have appointed the authority and may be paying it and may have the right to take disciplinary action against it in certain eventualities.
It was not open 669 to the Government of India to control the functions of a quasi judicial or judicial authority and direct it to decide a particular matter before it in a particular way.
It seems to us therefore that the control envisaged under article 12 is control of the functions of the authorities and it is only when the Government of India can control the function of an authority that it can be said that the authority is under the control of the Government of India.
Such control is possible in the case of a purely executive or administrative authority; it is impossible in the case of a quasi judicial or judicial authority, for in the very nature of things, where rule of ' law prevails, it is not open to the Government, be it the Government of India or the Government of a State, to direct a quasi judicial or judicial authority to decide a particular ' matter before it in a particular manner.
Therefore, this being the nature of the control which the Government of India must exercise in order that an authority functioning outside the territory of India may be said to be an authority under the control of the Government of India within the meaning of article 12, a quasi judicial or judicial authority cannot be said to be an authority under the control of the Government of India within this meaning.
We are therefore of opinion that the Appellate authority being quasi judicial could not be directed by the Government of India to decide a particular matter before it in a particular manner and therefore it cannot be said that it is an authority under the control of the Government of India.
As we have already indicated, this follows from the reasoning of the majority in Masthan Sahib 's Case (1), though it was not decided specifically as such in that case.
We are therefore of opinion that judicial or quasi .judicial authorities functioning in territories administered by the Government of India but outside the territory of India cannot be said to be authorities under the control of the Government of India within the meaning of article 12, and therefore article 12 would not apply to 670 such authorities functioning outside the territory of India.
Consequently it would not be open to this Court to issue a writ under article 32 read with article 12 against a quasi .judicial authority outside the territory of India even though that authority might have been appointed by the Government of India, might be paid by the Government of India or the Government of India might have the power of disciplinary action against it.
The Appellate Authority being a quasijudicial authority would thus not be under the control of the Government of India within the meaning of article 12.
Therefore it would not have been open to this Court to issue a writ against the order under challenge when it was passed.
In consequence it is not open to this Court now that Pondicherry has become part of India to issue a writ to the Appellate Authority with respect to an order passed by it before Pondicherry became part of India, as the Constitution for this purpose is not retrospective.
The matter can be looked at in another way.
article 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Therefore it is only when the State as defined in article 12 (for there is nothing in the context of article 15 to require otherwise) discriminates, that a citizen can complain of the breach of article 15 and ask for relief from this Court under article 32.
We have however held that the Chief Commissioner being a quasi judicial authority was not under the control of the Government of India within the meaning of article 12.
Therefore, he could not be the State within that Article.
If so, it follows that the discrimination (assuming there was any) was by an authority which was not the State.
The protection of article 1.5 is against discrimination by "the State." The petitioner therefore would not be entitled to any protection under article 15 against the Chief Commissioner at the time the impugned order 671 was made.
That is another reason why the present petition must fail.
We therefore dismiss the appeal and pass no order as to costs in respect thereof.
We dismiss the writ petition with costs.
Appeal dismissed.
Writ petition dismissed.

summary:
The petitioner, a resident of Pondicherry, was an applicant for a stage carriage permit,.
before the State Transport authority pondicherry, alongwith 14 other persons.
The Permit was granted to one Perumal Padayatchi taking into account the fact that he was a native of Pondicherry along with other facts.
The petitioner, whose application for the permit was rejected, went in appeal to the Appellate Authority who dismissed the appeal .
The petitioner filed a writ petition under article 32 in this Court and contended that preference on the ground of place of birth is violative of article 15 of the Constitution.
On the dates of the orders sought to be impugned, Pondicherry was not yet part of the territory of India, but when the petition was heard it had become part of the territory of India.
It was contended on behalf of the respondent that in view of the observations in the decision in N. Masthan Sahib vs Chief Commissioner, [1962] Supp.
1 section C. R. 981, the writ petition was not maintainable.
Held, that in article 12 the words "under the control of the Government of India" qualify the word "authorities" and not the word "territory" and article 12 gives an iaclusive definition of the word "State".
Held, further, that if no writ could be issued at the time .
when the order was passed for the reason that Pondicherry was not part of India at that time, no such writ could be issued in respect of past acts after Pondicherry had become part of India 657 as that would be giving retrospective operation to the Constitution.
Janardan Reddy vs The State, ; referred to.
Held, also, that judicial or quasi judicial authorities out side the territory of India but under the administration of the Government of India cannot be said to be 'under the control of the Government of India ' as the expression "control" connotes power to issue directions regarding how a thing may be done by a superior authority to an inferior authority, and in the case of a quasi judicial authority no such directions or orders could be issued.
It is only in the case of executive action that a superior authority may direct that a particular thing may be done in a particular way by the subordinate authority.
In the very nature of things where rule of law prevails it is not open to a Government, be it the Government of India or the Government of a State, to direct a quasi judicial or judicial authority to decide Any particular matters before it in a particular manner.
N. Masthan Sahib vs Chief Commissioner, [1962] Supp.
1 section C. R. 981, referred to.
Held, also, that the Chief Commissioner who is the Appellate Authority in the case, fell outside the definition of 'State ', he being a quasi judicial authority not under the control of the Government of India and, therefore, article 15 of the Constitution did not apply to him and no protection under article 15 was available against the Chief Commissioner at the time the impugned order was made.