9911796707
TMI Blog2020 (5) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... n the territory in relation to which it exercises jurisdiction, it can entertain the writ petition to pass orders or directions notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within its territories. 'Cause of action' implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. It has been interpreted to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. The question as to whether the Court has territorial jurisdiction to entertain a writ petition, has to be decided on the basis of averments in the petition, truth or otherwise thereof, however, would be immaterial. Mere service of notice would not give rise to a cause of action unless service of notice is an integral part of the cause of action. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alion, CRPF at Bhotgaon, Kokarajhar, Assam and was communicated to the petitioners there itself and further that the departmental appeal and revision have been rejected by the competent authorities at Bhopal, the remedy before the petitioners is to either approach the Gauhati High Court or Jabalpur High Court, whichever they choose. The writ petitions challenging the dismissal, appellate and revisional orders cannot be maintained in this Court. 4. The learned Single Judge in the referral order noted the arguments of Advocates for both sides in the following words:- In support of their contention the respondents have relied upon a Full Bench decision of this Court in the case of Rajendra Kumar Mishra Vs. Union of India reported in 2005 (1) UPLBEC 108 as well as a Division Bench judgment of this Court passed in Special Appeal No. 342 of 2010 The Director General CRPF, New Delhi Vs. Constable Lalji Pandey. The Division Bench in Lalji Pandey (supra) has relied upon the Full Bench decision of this Court in the case of Rajendra Kumar Mishra (supra) and held that mere communication of the order of dismissal, appellate and revisional orders at the residential address of the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench judgments of this Court passed in Special Appeal Defective No. 785 of 2014 Bibhuti Narain Singh Vs. Food Corporation of India and others and Special Appeal No. 158 of 2016 Har Govind Singh Vs. Union of India and others. In both the judgments, the two Division Benches have relied upon the judgment of the Supreme Court in the case of Nawal Kishore Sharma (supra). In the case of Bibhuti Narain Singh (supra) the Court has held that in view of the judgment of Nawal Kishore Sharma (supra), the communication of the penalty order to the appellants at Faizabad would confer jurisdiction on this Court (Lucknow Bench) to maintain the special appeal. In the case of Har Govind Singh, the Division Bench has considered the judgment of Nawal Kishore Sharma (supra) and Full Bench judgment in the case of Rajendra Kumar Mishra (supra) as well as the judgment of the Constitution Bench in AIR 1961 SC 532, Lieutenant Col. Khajoor Singh Vs. Union of India and others and thereafter referring to the judgment of Nawal Kishore Sharma (supra) with approval, has entertained the special appeal and directed the Union of India to file its response. Learned counsel for the respondents on the other hand sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding precedent on this Court to entertain the above writ petitions or whether the observations of paragraph 17 were in the peculiar facts and circumstances of the case of Nawal Kishore Sharma (supra) in view of paragraphs 18 and 19 of the said judgment. OR In the alternative whether the judgment of the Full Bench in Rajendra Kumar Mishra (supra) and Constable Lalji Pandey (supra) can be said to still lay down the correct law in view of the judgment of the Supreme Court in Nawal Kishore Sharma (supra). Therefore, in my opinion this controversy needs to be resolved by a larger Bench of this Court. Let the records of these cases be placed before the Hon'ble Chief Justice for constitution of a larger Bench to resolve the above conflict in the several decisions of this Court. 5. Firstly we think it proper to re-formulate the questions referred for convenience:- (i) Whether the judgments of the Full Bench in Rajendra Kumar Mishra Vs. Union of India 2005 (1) UPLBEC 108 and the Division Bench in The Director General CRPF, New Delhi Vs. Constable Lalji Pandey1 are still good law in view of the decision of the Supreme Court in Nawal Kishore Sharma Vs. Union of India an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. 40. For the reasons given above we are of the opinion that the Chief of Army Staff can only be sued either at Delhi where he is located or at a place where the cause of action, wholly or in part, arises. 41. We may mention that a cause of action is the bundle of facts which, taken with the law applicable., gives the plaintiff a right to relief against the defendant. However, it must include some act done by the defendant, since in the absence of an act, no cause of action can possibly occur. [Vide Radhakrishnamurthy v. Chandrasekhara Rao, AIR 1966 A.P. 334; Ram Awalamb v. Jata Shankar, AIR 1969 All. 526 (FB), and Salik Ram Adya Prasad v. Ramhakhem and others, AIR 1973 All. 1071. 42. In the present case no part of the cause of action has arisen in U.P. Hence in our opinion the writ petition is not maintainable in this Court. It is accordingly dismissed. The decision of the Division Bench in Kailash Nath Tiwari v. Union of India (supra) in our opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial jurisdiction. (b) In Constable Lalji Pandey1, the challenge before the Division Bench was to the punishment order dated 17.3.1994 of dismissal from service on the charge of unauthorized absence from duty. The writ petition was filed by the delinquent after exhausting departmental remedy of appeal as well as revision before the competent authorities which were also rejected. On a preliminary objection raised by the respondent with regard to the maintainability of the writ petition, the Division Bench has relied upon the view taken by the Full Bench in the case of Rajendra Kumar Mishra 2005 (1) UPLBEC 108 to hold that mere communication of dismissal, appellate and revisional orders at the residential address of the delinquent employee at District Bhadohi would not confer territorial jurisdiction to this Court. Mere residence of the petitioner within the territory of this Court would not confer jurisdiction to entertain the writ petition. We may note here again that the Division Bench in Constable Lalji Pandey1 had decided the question of jurisdiction in the facts and circumstances of that case. It was noted that the delinquent employee who was a member of Central Reserve Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh3 in the referral order is, thus, wholly irrelevant. (d) In Bibhuti Narain Singh2, the Division Bench of this Court placing reliance on the judgment of the Apex Court in Nawal Kishore Sharma (2014) 9 SCC 329 has held that the part of cause of action had arisen within the jurisdiction of this Court, inasmuch as, the petitioner (therein) was posted in Faizabad, a District in the State of U.P. when the order of penalty of stoppage of annual increment was served upon him. It was held that though whole departmental proceedings concluded at the place beyond the territorial jurisdiction of the Court but since the order of punishment was served at the place of posting of the petitioner, within the State of U.P., part of cause of action would lie within the territorial jurisdiction of this Court. We may note here that the issue as to whether the whole or part of cause of action would lie within the jurisdiction of a Court or not is a question to be decided in each case on its own facts in the context of the subject matter of litigation and relief claimed as the expression cause of action constitutes bundle of facts which the petitioner must prove, if traversed, to entitle to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. ....xxxxxxxxxxx The expression cause of action considered in the case of Oil and Natural Gas Commission vs. Utpal Kumar Basu and others (1994) 4 SCC 711, was noted:- 6. Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Court while considering the scope of Article 226 of the Constitution, particularly the cause of action in maintaining a writ petition, held that clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in relation to the territories within which the cause of action arises wholly or in part, will have jurisdiction. This would mean that even if a small fraction of the cause of action (that bundle of facts which gives a petitioner, a right to sue) accrued within the territory of a State, the High Court of that State will have jurisdiction. Having considered the above decisions of the Apex Court, it was concluded in paragraph '16' in Nawal Kishore Sharma (2014) 9 SCC 329 as under:- 16. ....there cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction cannot be sustained in the peculiar facts and circumstances of the case. 10. From an exhaustive reading of the decision in Nawal Kishore Sharma (2014) 9 SCC 329, it is evident that the question of maintainability of the writ petition in Patna High Court was decided in the peculiar facts and circumstances of the case considering the nature and character of the proceedings under Article 226 of the Constitution. It was found that legal right claimed by the appellant (therein) to disability compensation had been infringed by the respondent with rejection of his representations communication from the home address of the employee and orders were communicated to him at the same address. On account of suffering from disease, the appellant having been permanently declared unfit was forced to stay in his native place. 11. From the above, it is evident that there can never be an encyclopedic exposition as to what would constitute cause of action in a case. The decisions of the Full Bench and the Division Benches of this Court and the Apex Court should not be read to exhaustively enunciate as to when and how the Court should determine in a case that the cause of action, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a precedent or to get an authoritative pronouncement by the Larger Bench on any assumed conflict. Whenever a matter is placed before the Court (whether single or division bench) for adjudication, if a question of law of whatever importance arises before that bench, ordinarily the Court should decide it itself by applying the legal principles and judicial pronouncements on the subject. Only if the learned judge reaches at a conclusion that there is conflict of precedent, i.e. conflicting views of the Coordinate Bench or the Larger Bench on the subject making it impossible for the Court to decide this way or the other, reference could have been made. 16. A Full Bench of this Court in Suresh Jaiswal vs. State of U.P. and another5 considering the scope of Chapter V Rule 6 of the Allahabad High Court Rules' 1952 has held that:- 53. Thus, from the above discussion, it is found that when it appears to a Single Bench or a Division Bench that there are conflicting decisions of the Co-ordinate strength of the same Court or that a question of law of importance having conflicting views arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, particularly the cause of action in maintaining a writ petition, it has been concluded in paragraph '16' of the report that to establish that the cause of action wholly or in part has arisen within the territorial jurisdiction of any High Court, the petitioner has to show that a legal right claimed by him has been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court's jurisdiction and such infringement may take place by causing him actual injury or threat thereof. 19. What would constitute a cause of action obviously would depend upon the nature and character of the proceedings under Article 226 of the Constitution. Under Article 226 of the Constitution, the High Court can exercise powers to issue direction, order or writs for enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose. If the cause of action wholly or in part had arisen within the territory in relation to which it exercises jurisdiction, it can entertain the writ petition to pass orders or directions notwithstanding that the seat of the Government or authority or the residence of the person aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;right to action' and 'cause of action' are two different things. This distinction was earlier considered by a Division Bench of this Court in Daya Shankar Bharadwaj v. Chief of Air Staff, New Delhi and others AIR 1988 Allahabad 36, wherein it was observed:- A right of action arises as soon as there is an invasion of right. But 'cause of action' and 'right of action' ...... are not synonymous or interchangeable. A right of action is the right to enforce a cause of action (American Jurisprudence 2nd Edition Vol. 1.) A person residing anywhere in the country being aggrieved by an order of Government Central or State or authority or person may have a right to action at law but it can be forced or the jurisdiction under Article 226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. The cause of action arises by action of the Government or authority and not by residence of the person aggrieved. 24. It was further discussed in Chabi Nath Rai 1997 (1) UPLBEC 236 that an order imposing penalty does not take effect unless it is communicated and the cause of action may arise at a place where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en passed, will only have jurisdiction to entertain the writ petition under Article 226 of the Constitution of India. 25. The view taken by the Division Bench in Chabi Nath Rai 1997 (1) UPLBEC 236 has been cited with approval by another Division Bench in Ex-Naik Ram Sharan vs. Union of India and others 6 to hold that mere communication of the appellate order at the place where the petitioner resides itself does not give any cause of action. 26. In Vishnu Kumar Bhargawa and others vs. Metropolitan Magistrate, Bombay and others 1986 ALJ 1093, it was considered that the service of notice of the case filed in the Court of Metropolitan Magistrate, Bombay was not an integral part of cause of action, inasmuch as, for succeeding in the case, service of notice at Allahabad was not material and would not confer jurisdiction on the High Court at Allahabad to entertain the writ petition. 27. We subscribe to the view taken by the above noted Division Benches to hold that mere communication of the appellate or revisional order at the place of residence of the petitioner itself does not give rise to a cause of action within the territorial jurisdiction of the High Court within limit of w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
