Allahabad High Court
Patronage Welfare & Educational ... vs State Of U.P. Through Addl. Chief Secy. ... on 18 March, 2020
Bench: Anil Kumar, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 9 Case :- MISC. BENCH No. - 7281 of 2020 Petitioner :- Patronage Welfare & Educational Society Respondent :- State Of U.P. Through Addl. Chief Secy. Home Lko. & Others Counsel for Petitioner :- Pranjal Krishna Counsel for Respondent :- G.A. Hon'ble Anil Kumar,J.
Hon'ble Vikas Kunvar Srivastav,J.
Heard Sri Nandit Srivastava, Senior Advocate assisted by Sri Shiv Raja Krishna, learned counsel for petitioner as well as Sri S.P. Singh, learned A.G.A. and perused the record.
Sri S.P. Singh, learned A.G.A. has raised a preliminary objection that in view of the relief as claimed in the present writ petition relates to the district Gautambudh Nagar no cause of action has arisen as per the relief claimed as per the territorial jurisdiction of the Hon'ble Court at Lucknow, so the same is liable to be dismissed.
Learned Senior counsel for petitioner in rebuttal submits that there is a society known as Patronage Welfare & Educational Society (hereinafter referred to as the Society) which is registered under the Societies Registration Act, 1860 at New Delhi. In this regard reliance has been placed on the document contained as Annexure No. 1 to the writ petition which is a certificate of Registration.
He further submits that initially, the office bearers of the Society are respondent Nos. 3 to 5. subsequently, the office bearers of the Society has been changed and at present, the office bearers of the Society are: President - Sri K.D. Arora, Hon. General Secretary - Dr. Rakesh Varma Treasurer - Smt. Kamla Varma. In this regard reliance has been placed on the letter dated 24.04.2012 issued by the Asstt. commissioner of Industries (Fir & Societies) contained as page No. 147 of the writ petition.
It is further submitted that respondent Nos. 3 to 5, namely, Dr. Kalu Ram Shrma, Mr. Devashish Gaur & Smt. Sharda Sharma who are initially office bearers of the Society, their memebership from Society have been terminated on account of financial mis-appropriation and other illegal works which have been done against the interest of the society against the termination order, the respondent Nos. 3 to 5 have filed civil suites bearing No. 37/2008, 284/2009 and 111/2010 in the court of Senior civil Judge (East), Karkardooma Court, half of the Patronage Welfare & Educational Society, falsely claiming themselves to be the office-bearer of the same society and inter alia alleging that the management of the said society has never been handed over to the office bearer of the petitioner society. Further, Registrar of Society, Delhi has already certified the Government body of the Patronage Welfare & Educational Society and approved the appointment of Honorary General Secretary of the petitioner Society vide its order dated 18.02.2010 and the said order was also accepted by the opposite party while withdrawing the Civil Suit No.284/2009 and the opposite parties filed various writ petitions bearing no.13511/2019, 1694/2010 and 162/2010 LPA before the Hon'ble Delhi High Court.
Thereafter Hon'ble Delhi High Court disposed of the Writ Petition No.13511/2009 vide order dated 07.01.2009 observing that :
"It is further clarified that the disputes between the parties which are pending in other fora are in no way sought to be interfered with by the issuance of the notice in question by the Registrar (Societies). With the above clarification, there is no surviving grievance of the petitioner. Any dispute between the other will be decided in accordance with law in the fora in which such dispute is pending. It is clarified that this Court has not decided any of the contentions of either party.
4. The writ petition and pending applications are disposed of."
Moreover, Hon'ble Delhi High Court while dismissing the Writ Petition No.1694/2010 vide order dated 15.12.2010, held as under:-
"2. Counsel for the intervener has drawn the attention of this Court to the plaint in Suit No.111/2010 pending in the Court of Senior Civil Judge (East), Karkardooma Courts, Delhi titled as the Patronage Welfare and Educational Society v. Rakesh Varma and others, where the first relief claimed is a declaration that the acts done by the defendants since 27th August 2006 including submission of documents to Registrar of Societies under their signatures for amendment of the Memorandum of Association etc. are illegal and void ab-initio and do not confer any right upon the defendants and interfere in the affairs of the plaintiff society.
3. The issue raised in this writ petition also concerns the validity of the amendment to the Memorandum of Association of the Society and their approval by the Registrar of Societies. Consequently, this Court does not consider it necessary to interfere in this writ petition since the same issue is pending in the above suit."
Thereafter, opposite party went in appeal against the aforesaid order, however, Hon'ble Court while disposing off the LPA No.1694/2010 vide order dated 17.02.2011, held as under:
"Needless to say, when the learned Single Judge has not decided the lis on merits, the appellant can file an application for amendment as advised in accordance with law. With the aforesaid modification, the appeal and the application stand disposed of.
Sri Nandit Srivastava, learned counsel for petitioner further submits that in addition to the abovesaid facts, some other litigation have been taken place between the present officer bearers and the ex-office bearers of the Society i.e. respondent Nos. 3 to 5 before this Hon'ble Court at Allahabad and Lucknow.
In order to elaborate his argument he submits that in Writ Petition No. 5325 (MB) of 2012 has been filed before this Hon'ble Court at Lucknow in which an order dated 28.06.2012 has been passed, on reproduction reads as under:-
"Subject to further orders passed by this Court, keeping in view the earlier order dated 10.6.2010 passed in Writ Petition No.5581 (M/B) of 2010 and the order dated 18.11.2010 passed in Civil Revision No.125 of 2010, as an interim measure the respondents are directed to provide necessary recognition and benefit to the petitioner's society which has been recognised by the Registrar of the Society, vide order dated 31.1.2011 and 24.4.2012 (Annexure No.27). Further, the Governing Body of the said Society alone will represent before the concerning authorities for all purposes as the same has already been recognised by the Registrar of the Society.
Let counter affidavit be filed within four weeks and rejoinder affidavit may be filed within two weeks.
List immediately thereafter."
Thereafter litigation in respect to office bearer of the Society has come up for consideration before this Hon'ble Court at Allahabad in Special Appeal No. 1947 of 2012 (Dr. Rakesh Verma and another Vs. State of U.P. and others) in which an order dated 21.11.2012 has been passed, quoted as under:-
"Heard learned counsel for the parties.
This intra-court appeal seeks to challenge two orders passed by the writ court in Writ Petition no. 48411 of 2012. By the first order under challenge dated 08.10.2012 the learned Single Judge has over-ruled a preliminary objection raised by the appellant regarding maintainability of the writ petition at Allahabad. As per stand of the appellant, on account of a writ petition relating to the same institution pending at Lucknow the present writ petition was required to be filed only at Lucknow. In the penultimate paragraph of the order dated 08.10.2012 the learned Single Judge has noticed that the U.P. Technical University, Lucknow has been bifurcated into two Universities w.e.f. 01.05.2010 and the concerned institution now falls within the jurisdiction of Mahamaya Technical University, Gautam Buddh Nagar. Since the institution as well as the governing University are situated in territories falling within the normal jurisdiction of High Court at Allahabad, the preliminary objection regarding the territorial jurisdiction has rightly been decided against the appellant.
The other order under challenge is an interim order dated 11.10.2012. The learned Single Judge has noticed the interim order with regard to the recognition of the governing body of the institution passed by a Division Bench at Lucknow in Writ Petition no. 5325 of 2012 yet, after staying the order of the two Universities one at Lucknow and other at Gautam Buddh Nagar dated 08.08.2012 and 04.09.2012 respectively, an interim arrangement has been made by the learned Single Judge by directing that the Authorised Controller who is already managing the affairs of another institute known as Institute of Professional Studies should take over the management of Institute of Management Studies as well and shall manage the affairs of this institute which is subject matter of the present writ petitions. This view has been taken on account of another Division Bench order dated 22.08.2012 passed at Lucknow in Special Appeal no. 568 of 2012.
After going through the order dated 22.08.2012 we find that only certain observations by a learned Single Judge in a contempt case were set aside by the consent of the parties on the ground that contempt court cannot add to the original order. We do not find anything in the order dated 22.08.2012 to warrant the conclusion arrived at by the learned Single Judge that by the said order the implementation of the interim order dated 28.06.2012 passed by another Division Bench has been prohibited.
Learned counsel for the appellants has vehemently contended that there was no prayer or application for handing over the management and affairs of the institute to any Authorised Controller and the appellant had no opportunity to address such issue.
Learned counsel for the private respondents has submitted that even if the direction for taking over the management of the institute by Authorised Controller is modified by us on the ground mentioned above, no interference should be made with the interim order directing for stay of operation of the impugned orders dated 08.08.2012 and 04.09.2012.
In view of facts noticed above particularly the Division Bench order dated 28.06.2012 passed at Lucknow in Writ Petition no. 5325 of 2012, we are constrained to modify the interim order directing for taking over of management of the Institute of Management Studies by the Authorised Controller. That direction has to be set aside because the interim order passed by the Division Bench dated 28.06.2012 stands in the way of making such an arrangement. The order is accordingly set aside. We clarify that the interim order dated 28.06.2012 shall govern the affairs of the Institute of Management Studies so long as it is not vacated or modified.
The appeal is disposed of."
In addition to the abovesaid litigation another writ petition (Writ - C No. 6322 of 2013, Dr. K.R. Sharma Vs. State of U.P. and others) has been filed in which an order dated 05.02.2013 has been passed, reads as under:-
"Heard learned counsel for the petitioner.
The petitioner has prayed for following reliefs:-
"(a) Issue a writ, order or direction in the nature of mandamus directing the respondent no.3 and 4 to forthwith withdraw police personnel posted in the college campus.
(b) Issue writ order or direction in the nature of mandamus directing the respondent no.5 to 9 not to interfere with the smooth functioning of Patronage Institute of Management Studies and Patronage Institute of Professional Studies.
(c) Issue a writ order or direction in the nature of mandamus directing the respondent no.1 to 3 to forthwith take action for the highhandedness and illegal action and atrocities committed by respondent no.5 to 9 committed on the teaching and non-teaching staff and students of both the colleges (Patronage Institute of Management Studies and Patronage Institute of Professional Studies)."
The issues with regard to management of Patronage Institute of Professional Studies, Grater Noida, Gautam Budh Nagar had engaged the attention of learned Single Judge of this Court in Writ Petition Nos.48411 of 2012 and 48410 of 2012. While allowing the parties to file affidavits, the Court passed an interim order dated 11.10.2012 directing the Authorised Controller, who is already managing the affairs of the Institute of Professional Studies, to take over management and affairs of the Patronage Institute of Management Studies as well, and continue to manage the affairs of the said Institute unless ordered otherwise by the High Court.
Dr. Rakesh Verma & Anr. filed Special Appeal No.1947 of 2012 against the order. The appeal was disposed of on 21.11.2012 with following directions:-
"In view of facts noticed above particularly the Division Bench order dated 28.06.2012 passed at Lucknow in Writ Petition no. 5325 of 2012, we are constrained to modify the interim order directing for taking over of management of the Institute of Management Studies by the Authorised Controller. That direction has to be set aside because the interim order passed by the Division Bench dated 28.06.2012 stands in the way of making such an arrangement. The order is accordingly set aside. We clarify that the interim order dated 28.06.2012 shall govern the affairs of the Institute of Management Studies so long as it is not vacated or modified."
We are of the view that this writ petition, challenging the consequential order dated 21.11.2012 does not require any adjudication. The relief sought by the petitioner in this writ petition, if allowed will run contrary to the directions issued by this Court on 21.11.2012, by which the interim order dated 28.6.2012 passed by the Lucknow Bench has been allowed to continue until it is vacated or modified.
The writ petition is dismissed."
Learned Senior counsel further submits that in addition to abovesaid facts, First Appeal From Order No. 3551 of 2009 (Patronage Welfare & Educational Society and another Vs. Kalu Ram Sharma and others) has been field in which an order was passed on 06.09.2017, reads as under:-
"Case called out in the revised list. Learned counsel for the respondent is not present.
Heard learned counsel for the appellants.
This appeal has been filed against the judgement and order dated 31.10.2009 passed by the First Additional Chief Judicial Magistrate/Additional Civil Judge (Senior Division), Gautam Budh Nagar, by means of which, the injunction application moved on behalf of the appellants has been rejected.
Learned counsel for the appellants submits that initially an interim injunction was granted in favour of the appellants vide order dated 18.07.2008 and thereafter, the case remained pending. Learned counsel submits that while considering the injunction vacation application, the finding has been recorded to the effect that the appellants have a remedy as provided under the Cooperative Societies Act. He further submits that the provisions of the Cooperative Societies Act are not attracted at all and neither any action has been taken under the Cooperative Societies Act and the provisions of Societies Registration Act are applicable. The Memorandum of Understanding was entered into between the appellants and the defendants and thereafter the management of the institution was handed over to the appellants after passing on the consideration and all the liabilities were also transferred to the appellants through bank. Learned counsel further submits that the Memorandum of Understanding is not disputed and neither the appellants have any remedy as held by the court below under Section 68 of the State Universities Act. Learned counsel submits that the injunction has been vacated on unfounded grounds and on both the counts, the order passed by the First Additional Chief Judicial Magistrate/Additional Civil Judge (Senior Division), Gautam Budh Nagar cannot be sustained in law.
Accordingly, we hereby stay the operation of the order dated 31.10.2009 passed by the First Additional Chief Judicial Magistrate/Additional Civil Judge (Senior Division), Gautam Budh Nagar.
It is further directed that the defendants will not interfere in the functioning of the appellants.
Respondents may file counter affidavit within three weeks."
He further submits that the said matter is pending for adjudication and so far as the management of the Society is concerned governed by the management to which Dr. Rakesh Verma is Hon. Secretary and respondent Nos. 3 to 5 who are previously office bearers of the Society have got not say whatsoever, however with oblique motive and purpose in order to harass the petitioner they on one or other pretext have lodged F.I.Rs. by invoking the provisions of Section 156(3) Cr.P.C. One of the F.I.R. lodged against the petitioner is that Case Crime No. 455 of 2017, under Sections 192, 196, 197, 209, 403, 420, 467, 471, 34, 120-B I.P.C., Police Station - Knowledge Park, District Gautam Budh Nagar, the same was challenged by the petitioner by filing Criminal Misc. Writ Petition No. 15656 of 2019 (Rakesh Varma Vs. State of U.P. and others), in which this Court has passed an order dated 31.05.2019, reads as under:-
"Heard learned counsel for the petitioners, learned counsel for the respondents and learned AGA for the State.
This writ petition has been filed for issuing a writ order or direction in the nature of certiorari quashing the impugned FIR registered as Case Crime No. 455 of 2017, under Sections 192, 196, 197, 209, 403, 420, 406, 467, 471, 34, 120-B I.P.C., Police Station- Knowledge Park, District Gautam Budh Nagar.
The writ petition has been filed for issuing following direction:
(i) issue a writ, order or direction in the nature of certiorari to quash the impugned first information report dated 15.12.2017 registered as Case Crime No. 455 of 2017, Under Section 192, 196, 197, 209, 403, 420, 406, 467, 468, 471, 34, 120-B IPC, at P.S. Knowledge Park, District Gautam Budh Nagar.
(ii) issue a writ, order or direction in the nature of certiorari to quash the impugned notice dated 27.03.20219 issued by the respondent no. 4 under Section 91 of the Criminal Procedure Code in pursuance of the order of further investigation and Section 173(8) of the Criminal Procedure Code.
It has further contended on behalf of the petitioner that the F.I.R. registered vide crime no. 455 of 2017 has already been transferred to Delhi as such the respondent no. 4 has no jurisdiction to issue any notice under Section 91 of the Cr.P.C.(annexure 2 to the petition). It is argued that the notice is without jurisdiction and thus, liable to be quashed.
In view of the argument made at the Bar that the F.I.R. has already been transferred to Delhi, we direct that no coercive action shall be initiated against the petitioner by the respondents, till any order passed by the court of competent jurisdiction or in the event the matter is transferred back to the State of U.P. The writ petition is disposed of in terms of the above preferred direction."
Accordingly, learned Senior Counsel for petitioner submits that respondent Nos. 3 to 5, namely, Dr. Kalu Ram Sharma, Mr. Devashish Gaur & Smt. Sharda Sharma respectively who are the ex-office bearer of the Society and have got no say with oblique motive an purpose have raised a dispute in respect to management of the Society and in regard to the same a litigation is pending before this Court in Writ Petition No. 5325 (MB) of 2012.
So keeping in view the said facts as well as the fact that petitioner in respect to its grievance in regard to lodging of the multiple F.I.Rs. by the respondent Nos. 3 to 5 who have got no say in the matter in question in view of the orders passed by this Hon'ble Court as stated above has made a representation before the Additional Chief Secretary (Home), copy of which is annexed as Annexure No. 22 to this writ petition keeping in view the provisions as provided under Section 36 of the Cr.P.C. to the to the Director General of Police or any authority nominated by him, so the present writ petiton filed by the petitoern in respect to the releif as claimed by him is maintainable before this Court sitting at Lucknow as part of casue of action lies within the territorial jurisdiction of of this Court, in this regard he has palced rleaince on the judgement passed in the case of Narisuddin and Ors. Vs. State Transport Appelalte Tribunal and Ors, 1975 (25) SCC 671, Navinchandra N. Majithia Vs. State of Maharashtra and Others, 2000 (7) SCC 640.
Sri Nandit Srivastava, learned Senior counsel further submits that:
(a) As the dispute between the office bear of the Society is under adjudication before the Civil Court at Delhi, so in view of the abovesaid facts, the District Court at Gaziabad may be restrained from entertaining any civil dispute filed by the respondent Nos. 3 to 5 who have been expelled from the Society.
(b) As respondent Nos. 3 to 5 are being expelled from the memebership of the Society and with oblique motive and purpose they are filing various F.I.r. against the petitioner Society, so in view of the said facts, the petitioner has made representation to the Director General/Additional Chief Secretary (Home) to consider the grievance and direct the authorities of District Gaziabad not to entertain the said various F.I.Rs till the disposal of the writ petition.. The copy of the said F.I.r. is annexed as Annexure No. 22 to the writ petition.
We have heard learned counsel for parties and gone through the record.
In view of the abovesaid factual background we have to first decide the maintainability of this writ petition before this Court at Lucknow.
Hon'ble the Apex Court in the case of Narisuddin and Ors. Vs. State Transport Appellate Tribunal and Ors, 1975 (25) SCC 671, held as under:-
"To sum up. Our conclusions are as follows. First there is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the order. Second, the Chief Justice of the High Court has no power to increase or decrease the areas in oudh from time to time. The areas in oudh have been determined once by the Chief Justice and, therefore, there is no scope for changing the areas. Third. the Chief Justice has power under the second proviso to paragraph 14 of the order to direct in his discretion that any case or class of cases arising in oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in oudh areas shall be instituted or filed at Allahabad, instead of Lucknow is wrong. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the order he directed to be heard at Allahabad. Fourth, the expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction, it may arise in either place."
In the case of Oil and natural Gas Commission Vs. Utpal Kumar Basu and others, 1994 (4) SCC 711, held as under:-
"9.In Subodh Kumar Gupta case5, the facts revealed that he had instituted a suit in the Court of Senior Judge, Chandigarh, for dissolution of the firm in which he as partner had 20% share along with his father, brothers and one another. The head office of the firm was situate in Bombay where the firm was registered with the Registrar of Firms. Its factory was situate at Mandsaur where the father Rajaram Gupta lived with his sons and attended to the partnership business. The plaintiff-petitioner was also residing in Mandsaur till 1974 when he shifted to Chandigarh. He, however, visited Mandsaur often in connection with the business of the firm. The case pleaded by him was that after he shifted to Chandigarh, he used to call for and received the statements of accounts of the business carried on at Mandsaur. He had got letterheads printed indicating that the branch office of the firm was at Chandigarh and he claimed that he also booked orders for the firm at Chandigarh. It was also pleaded that certain disputes had arisen regarding the management of the partnership firm and in regard to the correctness of the accounts which were discussed at the meeting in Bhilai at the end whereof an agreement was drawn up for the dissolution of the partnership and for distribution of assets amongst the partners to which the plaintiff was a signatory. The suit filed in the Chandigarh court was resisted on the preliminary contention that no part of the cause of action had arisen at Chandigarh and therefore that court had no jurisdiction. The Chandigarh court upheld the contention and this Court affirmed the said view. While dealing with the averment that the plaintiff was carrying on business of the firm from Chandigarh where the branch office of the firm was situate, this Court held that there is no averment that the branch at Chandigarh was started with the consent of the other partners and intimation thereof was given to the Registrar of Firms as required by Section 61 of the Partnership Act; the mere printing of stationery was neither here nor there and therefore no part of the cause of action could be said to have arisen within the territorial jurisdiction of the Chandigarh court.
10. The submission of the learned counsel for NICCO was that clause (2) was introduced in Article 226 of the Constitution to enlarge the scope of the writ jurisdiction of the High Court. The Supreme Court in Saka Venkata Subba Rao case3 while interpreting Article 226 as it then stood observed as under:
"The rule that cause of action attracts Jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Article 226 Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority 'within the territories' in relation to which the High Court exercises jurisdiction."
Thus, this Court ruled that in the absence of a specific provision in Article 226 on the lines of the Code of Civil Procedure, the High Court cannot exercise jurisdiction on the plea that the whole or part of the cause of action had arisen within its jurisdiction. This view was followed in subsequent cases. The consequence was that only the High Court of Punjab could exercise jurisdiction under Article 226 of the Constitution against the Union of India and other bodies located in Delhi. To remedy this situation, clause (1-A) was inserted by the 15th Amendment Act 1963, to confer on the High Courts jurisdiction to entertain a petition under Article 226 against the Union of India or any other body or authority located in Delhi if the cause of action has arisen, wholly or in part, within its Jurisdiction. Clause (1-A) was later renumbered as clause (2) of Article 226. Therefore, the learned counsel for NICCO is right that this amendment was introduced to supersede the view taken by this Court in the aforesaid case. But as stated earlier, on a plain reading of clause (2) of Article 226 it is clear that the power conferred by clause (1) can be exercised by the High Court provided the cause of action, wholly or in part, had arisen within its territorial limits."
In the case of Navinchandra N. Majithia Vs. State of Maharashtra and Others, 2000 (7) SCC 640, held as under:-
"17. From the provision in clause (2) of Article 226 it is clear that the maintainability or otherwise of the writ petition in the High Court depends on whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that Court.
43. We make it clear that the mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor are we to be understood that any person can create a fake cause of action or even concoct one by simply jutting into the territorial limits of another State or by making a sojourn or even a permanent residence therein. the place of residence of the person moving a High court is not the criterion to determine the contours of the cause of action in that particular writ petition. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the acts in each case."(See. Dashrath Rupsingh Rathop Vs. State of Maharashtra and anotehr), 2014 (9) SCC 129) In the case of Nawal Kishore Sharma Vs. Union of India and others, 2014 (9) SCC 329, held as under:-
"10. The interpretation given by this Court in the aforesaid decisions resulted in undue hardship and inconvenience to the citizens to invoke writ jurisdiction. As a result, Clause 1(A) was inserted in Article 226 by the Constitution (15th) Amendment Act, 1963 and subsequently renumbered as Clause (2) by the Constitution (42nd) Amendment Act, 1976. The amended Clause (2) now reads as under:-
?226. Power of the High Courts to issue certain writs ? (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 warranto and 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 writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories 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) xxxxx (4) xxxxx?
11. On a plain reading of the amended provisions in Clause (2), it is clear that now High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court?s territorial jurisdiction. Cause of action for the purpose of Article 226 (2) of the Constitution, for all intent and purpose must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. The expression cause of action has not been defined either in the Code of Civil Procedure or the Constitution. Cause of action is bundle of facts which is necessary for the plaintiff to prove in the suit before he can succeed.
12. The term ?cause of action? as appearing in Clause (2) came for consideration time and again before this Court.
13. In the case of State of Rajasthan and Others Vs. M/s Swaika Properties adn Another, (1985) 3 SCC 217, the fact was that the respondent- Company having its registered office in Calcutta owned certain land on the outskirts of Jaipur City was served with notice for acquisition of land under Rajasthan Urban Improvement Act, 1959. Notice was duly served on the Company at its registered office at Calcutta. The Company, first appeared before the Special Court and finally the Calcutta High Court by filing a writ petition challenging the notification of acquisition. The matter ultimately came before this Court to answer a question as to whether the service of notice under Section 52 (2) of the Act at the registered office of the Respondent in Calcutta was an integral part of cause of action and was it sufficient to invest the Calcutta High Court with a jurisdiction to entertain the petition challenging the impugned notification. Answering the question this Court held:-
?7. Upon these facts, we are satisfied that the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court and therefore the learned Single Judge had no jurisdiction to issue a rule nisi on the petition filed by the respondents under Article 226 of the Constitution or to make the ad interim ex parte prohibitory order restraining the appellants from taking any steps to take possession of the land acquired. Under sub-section (5) of Section 52 of the Act the appellants were entitled to require the respondents to surrender or deliver possession of the lands acquired forthwith and upon their failure to do so, take immediate steps to secure such possession under sub-section (6) thereof.
8. The expression ?cause of action? is tersely defined in Mulla?s Code of Civil Procedure:
?The ?cause of action? means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court.? In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of notice under Section 52 (2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral 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. The notification dated February 8, 1984 issued by the State Government under Section 52 (1) of the Act became effective the moment it was published in the Official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department, Jaipur under Section 52 (2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52 (1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52 (1) of the Act by a petition under Article 226 Article 226 of the Constitution, the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench, where the cause of action wholly or in part arose.?
14. This provision was again considered by this Court in the case of Oil and Natural Gas Commission Vs. Utpal Kumar Basu and others, (1994) 4 SCC 711. In this case the petitioner Oil and Natural Gas Commission (ONGC) through its consultant Engineers India Limited (EIL) issued an advertisement in the newspaper inviting tenders for setting up of Kerosene Recovery Processing Unit in Gujarat mentioning that the tenders containing offers were to be communicated to EIL, New Delhi. After the final decision was taken by the Steering Committee at New Delhi, the respondent NICCO moved the Calcutta High Court praying that ONGC be restrained from awarding the contract to any other party. It was pleaded in the petition that NICCO came to know of the tender from the publication in the ?Times of India? within the jurisdiction of the Calcutta High Court. This Court by setting aside the order passed by the Calcutta High Court came to the following conclusion :-
?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 of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court.?
15. In Kusum Ignots & Alloys Ltd. Vs. Union of India and Another (2004) 6 SCC 254, this Court elaborately discussed Clause (2) of Article 226 of the Constitution, particularly the meaning of the word ?cause of action? with reference to Section 20 (c) and Section 141 of the Code of Civil Procedure and observed:-
?9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and clause (2) of Article 226 being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts.
10. Keeping in view the expressions used in clause (2) of Artcile 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter.? Their Lordships further observed as under:-
?29. In view of clause (2) of Article 226 of the Constitution of India, now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh has, thus, no application.
30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.?
16. In the case of Union of India and others Vs. Adani Exports Ltd. and another (2002) 1 SCC 567, this Court held that in order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the court to decide the dispute and the entire or a part of it arose within its jurisdiction. Each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court?s territorial jurisdiction unless those facts are such which have a nexus or relevance with the lis i.e. involved in the case. This Court observed:
?17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court?s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no [pic]bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. If we apply this principle then we see that none of the facts pleaded in para 16 of the petition, in our opinion, falls into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad.?
17. In Om Prakash Srivastava Vs. Union of India and Another (2006) 6 SCC 207, answering a similar question this Court observed that on a plain reading of Clause(2) of Article 226 it is manifestly clear that the High Court can exercise power to issue direction, order or writs for the enforcement of any of the fundamental rights or for any other purpose if the cause of action in relation to which it exercises jurisdiction 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 the said territory. In para 7 this Court observed:- ?7. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limits 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, a writ petitioner has to establish that a legal right claimed by him has prima facie either 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.? igh Courts
18. In the case of Rajendran Chingaravelu Vs. R.K. Mishra, Additioanl Commissioner of Income Tax and Others, (2010) 1 SCC 457, this Court while considering the scope of Article 226 (2) of the Constitution, particularly the cause of action in maintaining a writ petition, held as under:
?9. The first question that arises for consideration is whether the Andhra Pradesh High Court was justified in holding that as the seizure took place at Chennai (Tamil Nadu), the appellant could not maintain the writ petition before it. The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. 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 territories of Andhra Pradesh, the High Court of that State will have jurisdiction.
xxxxxx
11. Normally, we would have set aside the order and remitted the matter to the High Court for decision on merits. But from the persuasive submissions of the appellant, who appeared in person on various dates of hearing, two things stood out. Firstly, it was clear that the main object of the petition was to ensure that at least in future, passengers like him are not put to unnecessary harassment or undue hardship at the airports. He wants a direction for issuance of clear guidelines and instructions to the inspecting officers, and introduction of definite and efficient verification/investigation procedures. He wants changes in the present protocol where the officers are uncertain of what to do and seek instructions and indefinitely wait for clearances from higher-ups for each and every routine step, resulting in the detention of passengers for hours and hours. In short, he wants the enquiries, verifications and investigations to be efficient, passenger-friendly and courteous. Secondly, he wants the Department/officers concerned to acknowledge that he was unnecessarily harassed.?
19. Regard being had to the discussion made hereinabove, 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 limit of the Court?s jurisdiction.
20. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscles disease). As a result, the Shipping Department of the Government of India issued an order on 12.4.2011 cancelling the registration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability compensation. The said representation was replied by the respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the District of Gaya, Bihar and, thereafter, he made all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, appellant was suffering from serious heart muscles disease (Dilated Cardiomyopathy) and breathing problem which forced him to stay in native place, wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation.
21. Apart from that, from the counter affidavit of the respondents and the documents annexed therewith, it reveals that after the writ petition was filed in the Patna High Court, the same was entertained and notices were issued. Pursuant to the said notice, the respondents appeared and participated in the proceedings in the High Court. It further reveals that after hearing the counsel appearing for both the parties, the High Court passed an interim order on 18.9.2012 directing the authorities of Shipping Corporation of India to pay at least a sum of Rs.2.75 lakhs, which shall be subject to the result of the writ petition. Pursuant to the interim order, the respondent Shipping Corporation of India remitted Rs.2,67,270/- (after deduction of income tax) to the bank account of the appellant. However, when the writ petition was taken up for hearing, the High Court took the view that no cause of action, not even a fraction of cause of action, has arisen within its territorial jurisdiction"
Thus, in view of the abovesaid law as laid down by Hon'ble the Apex Court in respect to the part of cause of action for entertaining a writ petition under Article 226 of the Constitution of India before a particular and previous litigation between the present and ex-office bearer of the society has already been taken palace and in respect to the same, the matter is pending before this Court at Lucknow, so present writ petition filed by the petitioner is maintainable.
So far as the relief No. 1 is concerned, the same cannot be granted by this Court in the instant matter, however, if so advised the petitioner may take the said plea before the court concerned.
So far as the relief No. 2 is concerned, keeping in view the provisions of Section 36 of Cr.P.C. as well as the provisions of Society Registration Act, we feel appropriate that a direction may be issued to the competent authority/Director General of Police who can either himself or nominate any sub-ordinate officer as per the provisions of Section 36 Cr.P.C. to decide the petitioner's representational dated 29.02.2020 (Annexure No. 22).
For the foregoing reasons, the writ petition is disposed of with a direction to direction to the Director General of Police or any authority nominated by him as per the provisions of Section 36 Cr.P.C. to decide the petitioner's representational dated 29.02.2020 (Annexure No. 22) after hearing the petitioner as well as respondent Nos. 3 to 5 expeditiously. Till then no coercive measure shall be taken against the petitioner in pursuance to the impugned F.I.R. lodged against the members of the petitioner's society.
(Vikas Kunvar Srivastav, J.) (Anil Kumar, J.) Order Date :- 18.3.2020 Ravi/