Mohd. Faiyaz Ali Khan vs Mohd. Mubarak Ali Khan and Others

I.P. Singh, J.—This petition under Article 226 of the Constitution of India (hereinafter referred to as the Constitution) has been filed by Mohd. Faiyaz Ali Khan, petitioner against Mubarak Ali Khan and five others for the issue of a writ directing the Respondents No. 1 to 5 to appear in the Court and produce Smt. Qamar Sultana, wife of the petitioner in this Court.

The allegations in paras 11 and 14 of the petition are that Smt. Qamar Sultana is being forcibly detained by his in-laws (respondents Nos. 1 to 5) at Aligarh.

In paras 10 and 12 to 14 of the counter affidavit of Mohd. Mubarak Ali Khan, on behalf of the respondents, it is alleged that the petitioner had given Talak to Smt. Qamar Sultana and that after the expiry of the period of Iddat she was remarried to Waqar Tofique Khan son of Manzoor Khan of village Majhpurwa, district Farrukhabad on 31-12-82 and thereafter from their wed-lock a male child was born who on the date of the counter affidavit had attained the age of 6 months. It was further contended that on 5-2-84 Smt. Qamar Sultana along with her child and husband Waqar Tofique Khan had left for Saudi Arabia where her husband is working as Telephone Exchange Engineer and his address there is "Albibon Exchange Mecca, Saudi Arabia".

On the basis of the above facts deposed in the counter affidavit the petitioner moved present application dated 11-5-84 to implead Waqar Tofique Khan as respondent No. 6 so that the-desired, writ for the production of Smt. Qamar Sultana could be directed against him as well.

In para 13 of the supplementary counter affidavit of Mohd. Mubarak Ali Khan, the above application moved by the petitioner was said to be misconceived and liable to be rejected.

The point regarding jurisdiction of this Court in the matter of impleading Waqar Tofique Khan is not specifically averred in the counter affidavit but this point, with the permission of the Court, was raised before the Court and detailed arguments on this point were advanced. The question for determination may be as follows:

Whether this Court exercising jurisdiction under Article 226 of the Constitution can and should implead Waqar Tofique Khan as respondent No. 6 when he is at present stationed at Albibon Exchange, Mecca, Saudi Arabia so that this Court could affectively and completely adjudicate upon and settle the question involved in the case.

The above question would certainly involve in allied question as to whether Waqar Tofique Khan is a necessary party to the Writ Petition. The answer to this question is simple. The guiding consideration in the matter of addition of parties is whether the Court can between the parties as arrayed before it, effectively and completely adjudicate upon and settle the question involved in the case. If the question or questions at issue between the parties could be worked out without any one else being brought in, the stranger should not be added as a party to the litigation. It necessarily follows that when such question or questions at issue involved in the case cannot be effectively and completely adjudicated upon in the absence of the person sought to be impleaded then he would be a necessary party to the litigation and should be arrayed as a party to the petition.

But before the above general principle can be followed another question arises as to whether the person sought to be impleaded would be amenable to the jurisdiction of this Court or not. In other words whether it would be possible for the Court to enforce against that person the writ issued against him. The Court would not issue such a writ which may well be flouted by that person by ignoring the same and which this Court would, in the circumstances feel itself helpless to enforce. In other words No. futile writ would be issued by this Court.

I am fortified In holding this view by the following decisions :

Ram Kirpal Chhakkar and Another Vs. Union of India (UOI) and Another, wherein it was held:

One important circumstance is that the Courts do not issue writs and injunctions which they have No. power to enforce. If a writ or injunction is disobeyed the only way to enforce it is to take proceedings against the guilt party for disobedience of the order. If that party is outside the jurisdiction of the Court then the Court has No. power to enforce obedience of the Injunction or writ issued by the Court, and Courts, therefore, do not issue writs where they have No. power to enforce their obedience.

A.K. Moitra and Others Vs. Ministry of Defence, Union of India (UOI) and Others, wherein it was held;

High Court will not Issue a writ, order or direction in a case in which the final authority is not bound by the orders of the High Court and may well flout the directions of the High Court by ignoring them and passing orders as he thought best.

If the writ issued is ultimately rendered futile by that person then in its discretion the Court would not direct him to be impleaded in the litigation by being arrayed as a party to the petition, even if the person is a necessary party for effective and complete adjudication and settlement of the question involved in the case. Since Waqar Tofique Khan is stationed at Albibon Exchange, Mecca, Saudi Arabia the question that arises is whether he, by virtue of his being in Saudi Arabia, i. e., out of the territory of India would be amenable to the writ of this Court.

Article 226 of the Constitution runs as follows:

(1) 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 cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor or certiorari, or any of them, for the enforcement of any of the rights conferred by part III and for any other purpose.

(2) The power conferred by Clause (1) to issue directions, orders or writ to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territorries within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3)....

(4)....

The learned Counsel for the respondent has argued that the reading of Article 226 indicates that there is two fold limitation on the jurisdiction of the High Court in its territorial aspect. According to him, these limitations are (1) the power is to be exercised throughout the territories in relation to which the High Court exercises jurisdiction; (2)...a person or authority, to whom the writs are issued, must be within the territory subject to the jurisdiction of the High Court.

The above contention is based relying on the decision in Election Commissioner of India v. Suka Venticfa Rao AIR 1953 SC 210 : 1953 SCR 1144 and Madan Gopal Rungta v. The Secretary to the Government of Orissa AIR 1962 SC 1513.

But as is obvious these decisions were prior to the year 1963. It is to be remembered that present Clause (2) of Article 226 is a reproduction of Clause (1A) which had been inserted by Section 8 of the Constitution (Fifteenth Amendment) Act, 1963. Thus the decisions prior to 1963 could not have taken the provisions of Clause (2) into consideration.

The learned Counsel for the petitioner relied upon Clause (2) above and contended that the powers conferred by Clause (1) could also be exercised beyond its territorial jurisdiction if the cause of action wholly or in part arises within the territories over which it exercises jurisdiction, notwithstanding that the person concerned is not within its territories. Reliance is placed on (1) Gopal Vinayak Godse Vs. The Union of India and Others, and (2) Smt. Manjulaben and Another Vs. C.T.A. Pillay and Others, . In both these decisions Clause (1A) of Article 226 of the Constitution (which corresponds to present Clause (2) were considered and the ratio had been that since a part of cause of action arose within the jurisdiction of the High Court concerned (Bombay and Gujarat respectively in the above cases) so that the High Court had jurisdiction to entertain the writ petitions under Article 226 (1A) now (2) of the Constitution.

It is pointed out that according to the petitioner, the initial illegal detention of Smt. Qamar Sultana had commenced at Aligarh within the territory of Uttar Pradesh and within the jurisdiction of this High Court. So, even if Waqar Tofique Khan at present is outside the territorial jurisdiction of this Court, this Court has jurisdiction to exercise powers conferred by Clause (1) in the present case. He being necessary party to litigation so, for effective and complete adjudication of the matter involved in this petition he should be arrayed as respondent No. 6 to the petition.

However, it must be noted that in AIR 1971 Bombay and 1976 Gujarat (supra) the question of exercising extra territorial jurisdiction on the basis of "cause of action in part arising in one State was confined to where two States within the Indian territory were involved. For this reason the ratio in those decisions cannot be applied in answering the question arising in the present case.

The preamble of the Constitution opens with the words, We, The people of India, having solemnly resolved to constitute India into a Soverign, Sociallst, Secular, Democratic, Republic.....

(emphasis supplied).

Article 1 of the Constitution runs as follows:

(1) Name and territory of the Union--

(1) India, that is Bharat, shall be a Union of States.

(2) The States and the territories thereof shall be as specified in the First Schedule.

(3) The territory of India shall comprise--

(a) the territories of the States;

(b) the union territories specified in the First Schedule; and

(c) such other territorries as may be acquired.

It, therefore, follows that the phrase ''territory of India'' means the territory of India as specified in Article 1(3). The importance of State territory lies in the fact that it is the space within which the State exercises its supreme authority.

Article 124 opens with the words, "There shall be a Supreme Court of India." Article 214 says, "There shall be a High Court for each State."

As seen above Article 1(2) provide s that the State and the territories thereof shall be as specified in the First Schedule of the Constitution. It follows that the territorial jurisdiction of the High Court would be limited to the state territories as given in the First Schedule. It is only in Article 226(2) that extra-territorial jurisdiction of the High Court comes into play based on the theory of ''cause of action.

But then the outer limits of the extra-territorial jurisdiction is to be determined. The question involved in the present case is whether this extra-territorial jurisdiction could go beyond the outer limits of the territory of India so as to reach Saudi Arabia. Article 226(2) of the Constitution used the word ''territories'' In the Constitution the word ''territory'' or ''territories'' first occurs in Article and those territories are those which have been detailed in the First Schedule. The word ''territory'' or territories wherever it occurs in the Constitution must, therefore, refer to such territories as are detailed in the First Schedule. Article 226(2) ends with the words ''notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

In my view the words ''not within those territories'' would mean in the territories other than the territories of the State to which the particular High Court belongs. Such territories must be confined to those as appearing in First Schedule of the Constitution.

To my mind, looking to the above provisions of the Constitution such limits of extra territorial jurisdiction of the High Court even in the face of Article 226(2) Cannot be extended beyond the territorial limits of India.

The wordings of Clause (2) in my view do not envisage extra-territorial jurisdiction of this Court beyond the territories of India. That extra territorial jurisdiction is limited to and confined within the territory of India.

The remedy through a writ is in the nature of action in persona and cannot be issued against an authority or person who is not amenable to the jurisdiction of this Court. The obvious reason is that the person stationed outside India cannot by any means be forced to comply with the writs issued by High Court. He could easily flout by ignoring them and the High Court would be helpless in the matter of enforcing the said writ The High Court, therefore, would not issue a futile writ. Since in the matter presently involved there is every likelihood of Waqar Tofique Khan rendering the writ issued against him futile there in No. point in arraying him as respondent No. 6 to the petition.

The learned Counsel for the petitioner has argued that this Court can reach Waqar Tofique Khan in Mecca, Saudi Arabia under the Extradition Act, 1962. But I do not think it applies in the present case. It covers cases involving ''Extradition Offences'', ''persons accused or convicted'', ''fugitive criminals'', and also takes into account the existence of ''extradition treaty'' as defined therein. I do not think the Extradition Act, 1962 can be pressed In to action in the present case.

For the above reasons the application for impleading Waqar Tofique Khan is rejected.