Karnataka High Court
Natasha Sondur And Ors. vs Union Of India (Uoi) And Ors. on 7 February, 2005
Equivalent citations: AIR2005KANT253, AIR 2005 KARNATAKA 253, 2005 AIR - KANT. H. C. R. 1103, (2006) 8 SERVLR 121, (2005) 2 KCCR 1299, (2005) 3 SCT 425
Author: N. Kumar
Bench: N. Kumar
ORDER N. Kumar, J.
1. The 1st and 2nd petitioners are minor children of the 3rd petitioner and the 5th respondent. Their marriage took place at Bangalore. The 1st petitioner was born on 19-9-1993 at Stockholm, Sweden and is presently aged about 11 years. The 2nd petitioner was born on 9-2-2001 at Sydney, Australia, and is presently aged about 3 1/2 years. Petitioners and 5th respondent are citizens of Sweden. The 3rd petitioner and 5th respondent were initially living at Stockholm after their marriage in 1989 till June, 1997 when they shifted to Mumbai and New Delhi and thereafter in June, 1999 to Sydney, Australia. Subsequently, the family moved to Stockholm, Sweden, in January, 2002 and once again to Sydney, Australia. Since the beginning of 2003, till December, 2003, they have been residing at Sydney, Australia.
2. The 5th respondent with 1st and 2nd petitioners arrived in India on a six months' non-extendable Tourist Visa from Sydney in the 3rd Week of December, 2003 and travelled to Bangalore with their mother's family on 26-12-2003. According to their original programme, all of them would return to Sydney on 27-1 -2004. On 24-1 -2004 the 5th respondent informed the 3rd petitioner that she is cancelling the air tickets and she and her children would not be travelling on 26-1-2004 to Sydney. But the 3rd petitioner under those circumstances had to get back to Sydney alone. However, he returned to Bangalore on 3-2-2004. He went to Mumbai where he met 5th respondent, and found out that she has no intention of ever returning back to Sydney. The 3rd petitioner with the consent of the 5th respondent took the 1st petitioner along with him to Hubli on 13-2-2004 and thereafter to Bangalore on 23-2-2004.
3. When the 3rd petitioner did not return the 1st petitioner as promised, the 5th respondent filed a petition for judicial separation in the Family Court at Bandra and Mumbai and also sought for the custody of the child in Petition No. A 531 /2004. In the said proceedings, the 3rd petitioner was restrained from taking the 1st petitioner out of India, Bangalore or Mumbai. In that background, petitioners have preferred these Writ Petitions for a writ of mandamus restraining the respondents 1 to 4 from extending the Visa of the minor petitioners 1 and 2 or to make any change in the status of their Visa, grant fresh Visa to person of Indian Origin status or change their Citizenship at the instance of the 5th respondent and permit the petitioners to return to their habitual place of residence viz. Sydney, New Sought Wales, Australia, along with their father.
4. After service of notice, respondents have entered appearance and the 5th respondent has filed a detailed counter traversing all the allegations made by the petitioners in the Writ Petitions. In addition to the main statement of objections filed, the 5th respondent has also filed additional statement of objections. In the said additional statement of objections it is contended that the application for extension of Visa and grant of PIO Card has been submitted to the Foreign Residents Registration Officer, Mumbai, who has been arrayed as 3rd respondent herein. Pursuant to the said application submitted, the Visa of the petitioners 1 and 2 has been extended and PIO Card has been issued in their favour. The entire cause of action for filing of these Writ Petitions arose within the jurisdiction of Mumbai and the High Court of Judicature at Mumbai alone has territorial jurisdiction to decide the matter, if any. Therefore it was contended that this Court has no territorial jurisdiction to decide the present Writ Petitions.
5. As this Court was called upon to decide the territorial jurisdiction to entertain these matters as a preliminary point, it is wholly unnecessary to set out in detail the contentions taken by the 5th respondent in the statement of objections. Therefore, without going into the" merits of the Writ Petitions, the learned counsel for both parties were heard only on the question of territorial jurisdiction of this Court. Therefore, question that arises for consideration at this stage is:
"Whether this Court has territorial jurisdiction to grant the reliefs sought for by the petitioner?"
6. Sri Vijaya Shankar, learned senior counsel contended that the officer to whom an application is made by the 5th respondent for extension of Visa and PIO Card, is at Mumbai. He is a delegate of the 1st respondent. Therefore, any action taken or any order passed by the 3rd respondent in effect is the order passed by the 1st respondent. The 1st respondent being the Union of India, is situated throughout the Country, this Court has territorial jurisdiction to grant the reliefs sought for. Secondly he contended that, in view of the amendment to the Constitution where Article 226(2) has been added, this Court has got jurisdiction to issue writs to persons who are residing outside the State of Karnataka, provided, the cause of action or part of cause of action arose within the State of Karnataka. Reading of the entire Writ Petitions would clearly show that the cause of action or part of cause of action arose at Bangalore and therefore, in view of Article 226(2) of the Constitution, this Court has got jurisdiction to grant the reliefs. In support of this contention he relied on several Judgments.
7. Per contra, Sri Uday Holla learned senior counsel appearing for the 5th respondent contends that though the power and the presence of Union of India, extends to whole of India, when it acts through its delegates or agents, it is the place where it acts is the criteria for deciding the territorial jurisdiction. If the Union of India has acted through the 3rd respondent at Mumbai, it is the High Court having jurisdiction over that place alone has the jurisdiction to grant the reliefs sought for and not this Court. So far as the contention that part of cause of action arose within the jurisdiction of this Court is concerned, he submits that it is not all the facts pleaded in the writ which constitutes cause of action. Each and every fact pleaded in the writ petition 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 that is involved in the case. Seen from that angle, the facts pleaded in the writ petition clearly go to show that no part, of the cause of action has arisen within the jurisdiction of this Court. Therefore, this Court has no territorial jurisdiction to entertain these Writ Petitions. He has also relied on several judgments.
8. In order to appreciate the rival contentions it is necessary to have a look at Article 226 of the Constitution as well as various judgments on which reliance is placed.
9. Article 228 of the Constitution reads as under :
Power of the High Courts to issue certain writs -
(1) Notwithstanding anything in Article 323(****) 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 terrorities directions, orders or writs, including 4 (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-Ill 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.
(Underlining by me)
10. Prior to introduction to Article 226(2) byway of constitutional amendment, the .Supreme Court interpreting Article 226(1) in the case of Election Commission, India, v. Venkata Rao AIR 1953 SC 210 (Para 6) observed :
A two fold limitation was placed on the High Courts upon the exercise of their power under Article 226. In the first place, the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction", that is to say, the writs issued by the Court: cannot run beyond territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court has power to issue such writ, must be "within those territories", which clearly implies that there must be amenable to its jurisdiction either by residence or location within those territories.
11. A constitution Bench of the Supreme Court in the case of LT. Col. Khajoor Singh v. Union of India, AIR 1961 SC 532 held, while the Government of India is within the territories of every High Court in India the only High Court which has jurisdiction to issue a writ or order or direction under Article 226 or Article 32(2a) against it is the one within the territories under which the act or omission against which relief was sought took place. The said finding was recorded after repelling the contention that the Government of India is all pervasive and is functioning throughout the territory of India and, therefore, every High Court has power to issue writ against it, as it must be presumed to be located within the territory of all State High Courts. The Supreme Court repelling the said contention held the said argument confuses the concept of location of a Government with the concept of its functioning. A Government may be functioning all over a State or all over India; but it certainly is not located all over the State or all over India. It is true that the Constitution has not provided that the seat of the Government of India will be at New Delhi. It is common knowledge that the seat of the Government of India is in New Delhi and the Government as such is located in New Delhi. The absence of a provision in the Constitution can make no difference to this fact. What is to be seen is, whether the words of Article 226 mean that the person or authority to whom a writ is to be issued has to be resident in or located within the territories of the High Court issuing the writ. Therefore, they further went on to hold, it is not permissible to read in Article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction.
12. In the case of Kusum Ingots & Alloys Ltd. v. Union of India: (AIR 2004 SC 2321 : 2004 AIR SCW 2766) the question that arose was 'whether the seat of Parliament or the legislature of a State would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under Article 226 of the Constitution?." In answering the said question, the Supreme Court held that a distinction between a legislation and executive action should be borne in mind while determining whether a cause of action arose at a particular place. Passing of a legislation by itself does not confer any such right to file a writ petition unless a cause of action arises therefor. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action on cases arising. In other words, framing of a statute, statuory rule or issue of an executive order or instruction would not confer jurisdiction upon a Court only because of the situs of the office of the maker thereof. When an order, however, is passed by a Court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate /revisional authority is constituted at another, a writ petition would be maintainable at both the places as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.
A parliamentary legislation when it receives the assent of the President of India and is published in the Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ Court, it is well settled, would not determine a constitutional question in a vacuum.
Therefore, a writ petition questioning the constitutionality of a parliamentary Act shall not be maintainable in the High Court of Delhi only because the seat of the Union of India is in Delhi.
13. The learned counsel appearing for the petitioner also brought to my notice some passages from Administrative Law, Third Edition, of Dr. (Justice) Durga Das Basu and contended that the third respondent herein who has passed the orders is a delegate of the Central Government and, therefore, in substance the said orders are passed by the Central Government itself and as the Central Government is present through out the territory of India, this Court has jurisdiction to issue a writ to the delegate and to the Central Government. Dealing with the relationship of delegator and delegate the learned author has observed, when a statutory power has been validly delegated, the question arises as to the precise relationship that is created as between the delegator and the delegatee. It is broadly established that even where a statute itself authorises the delegation of a power conferred by it upon a specified authority, the status of the delegate is that of an agent. From this it follows that, when an administrative authority delegates its power, it does not completely divest itself of its power but is, In the absence of any statutory bar, capable of resuming it and, unless that is precluded by the terms of delegation, even exercise concurrent powers. Delegation does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. Even where the statute itself authorises delegation, the responsibility of discharging the statutory duties remains with the body on which the Legislature conferred the power, and if the body finds that the delegate is not performing the duties properly, it is its duty to revoke such delegation and perform the functions itself, even though the term for which the delegate was appointed has not yet expired. The reason is that, by delegation, the statutory authority cannot divest itself of its statutory duties. Notwithstanding such delegation, the delegator is not deprived of. Since an agent has no independent power but exercises the powers of his principal, an act done by a delegate is nothing but the act of the principal.
However, amendment to the aforesaid provision by introducing Article 226(2), the position has changed.
14. The Supreme Court in the case of Navinchandra N. Majithia v. State of Maharashtra, AIR 2000 SC 2966, held that the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which "the cause of action, wholly or in part, arises" and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court. The amendment by which Clause(2) is inserted is thus aimed at widening the width of the area for reaching the writs issued by different High Courts.
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.
Explaining the meaning of the word "cause of action" in the aforesaid Judgment, the Supreme Court held that "cause of action" is a phenomenon well understood in legal parlance. The collocation of the words "cause of action wholly or in part arises" seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of the Courts. As per that section the suit could be instituted in a Court within the legal limits of whose jurisdiction the "cause of action wholly or in part arises". Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to the Fifteenth Amendment of the Constitution as to mean the bundle of facts which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the Judgment of the court.
In legal parlance the expression 'cause of action' is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in Court from another person.
15. Interpreting Article 226(2), the Supreme Court in the case of Oil and Natural Gas Commission v. Utpal Kumar Basu, (1994) 4 SCC 711 at page-713 : (1994 AIR SCW 3287) held that under Article 226 a High Court can exercise the power to issue directions, orders or writs for the 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 territories 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 territories. Explaining the meaning of the word "cause of action" it was held that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. 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. The territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial.
16. The Supreme Court in the case of Union of India v. Adani Exports Ltd., (2002) 1 SCC 567 : (AIR 2002 SC 126) held that 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. Each and every fact pleaded, ipso facto do not 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 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.
17. The Supreme Court in the case of National Textile Corporation Ltd. v. Haribox Swalram, (2004) 9 SCC 786 : (AIR 2004 SC 1998) observed that cause of action as understood in civil proceedings means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. It is the bundle of facts which taken with the law applicable to them, gives the plaintiff a right to relief against the defendant. Each and every fact, pleaded in the writ petition 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 or dispute involved in the case.
18. Therefore the law is well settled. Article 226(1) firstly confers power on the High Court to issue writs throughout the territories in relation to which it exercises jurisdiction, i.e., to say the writs issued by the Court cannot run beyond territories subject to its jurisdiction. Secondly, the person or authority against whom the said writ is issued should be within the State or territories over which the said High Court has jurisdiction. In other words the person or authority must be residing or located within those territories.
19. The territory of India is the territory of Government of India, and it functions through out the territory of India. However, the difference between the concept of location of a Government with the concept of its functioning is to be borne in mind. The Central Government may be functioning all over the country in all States. But, it is certainly not located all over the country or all over the State. In the Indian Constitution the seat of the Central Government of India has not been provided for. But, it is common knowledge that the seat of the Government of India is in Delhi and, therefore, it is located in New Delhi. Article 226(1) neither speaks about location of a Government or about functioning of the Government. Therefore, the residence or location of the Government or of the person affected by any act of the Government has no relevance on the question of High Court's jurisdiction. The jurisdiction of the High Court depends on the person or authority passing the order and the place where the said order is passed or act or omission against which relief sought took place and whether the said place is within those territories in relation to which the High Court exercise jurisdiction.
20. After 15th amendment to the Constitution, by introduction of clause (2) of Article 226 power is conferred on the High Courts to exercise jurisdiction beyond the territories of the State over which it has Jurisdiction. Such a power is conferred subject to the fulfillment of one condition that the cause of action for issue of such writ should wholly or in part arise within the Jurisdiction of the State over which it. has Jurisdiction.
21. Therefore, the word cause of action assumes importance. The word 'cause of action' finds a place in Section 20(c) of the Code of Civil Procedure and has been the subject matter of interpretation by the Supreme Court as well as the various High Courts. The Supreme Court in the case of Kusum Ingots & Alloys Limited v. Union of India, (2004)6 SCC 254 : (AIR 2004 SC 2321) dealing with the application of provisions of CPC to the writ proceedings, in particular Section 20(c) of the CPC held that, although in view of Section 141 of CPC the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of CPC and Clause (2) of Article 226 being in pari materia, the decisions of the Supreme Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. In the aforesaid Naveenchandra N. Majithia's case, (AIR 2000 SC 2966), the Supreme Court observed that the collocation of the words "cause of action wholly or in part arises" seems to have been lifted from Section 20 of CPC which section also deals with the jurisdictional aspect of the Courts. The judicial pronouncements accorded almost a uniform interpretation to the said compendious expression equally applies while interpreting sub-clause (2) of Article 226.
22. Viewed from that angle, the expression 'cause of action' means the bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Every fact, which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. It is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. In legal parlance the expression 'cause of action' is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy In the court from another person. Each and every fact pleaded in the Writ Petition does not ipso facto lead to the conclusion that those facts give rise to a cause of action which the Court's territorial Jurisdiction unless those facts pleaded are such which have a nexus or relevance with the Us or dispute involved in the case. The facts which have no bearing with the Us 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. The territorial jurisdiction must, be decided on the facts pleaded in the petition, the truth or otherwise of the averment made in the petition being immaterial. To confer jurisdiction on a Court even if a part of the cause of action arises Within its jurisdiction, it is sufficient. It is purely a question of fact.
23. It is in this background we have to see whether the averment in the Writ Petition discloses wholly or in part the cause of action for the petitioner to seek a writ at the hands of this Court against a person or authority which is situated outside the territorial jurisdiction of this Court. Secondly, it. has to be seen whether when the third respondent as a delegate of the Central Government has passed the orders which has given rise to the cause of action to maintain this petition, Delegator being the Central Government is all pervasive throughout the territories of India, whether this Court can issue a writ as sought, for.
24. The third respondent is the Foreign Residents' Registration Officer situated at Mumbai. The petitioners and the fifth respondent are all Swiss citizens who have arrived in India on a six months non-extendable tourist visa from Sydney in the third week of December 2003 and travelled to Bangalore. The grievance of the petitioners is that the fifth respondent has sought for extension of the visas and/or their citizenship, so as to frustrate the petitioners from going back to their habitual place of residence namely Sydney, Australia. Therefore, they have sought for a writ restraining respondent Nos. 1 to 4 from extending the visas or the minor petitioners 1 and 2 or to make any change in the status of their visas, grant fresh citizenship at the instance of the fifth respondent. The notification issued by the Ministry of Home Affairs for issue of person of Indian Origin Card (PIO) card provides that, an application for issue of a PIO Card shall be made to an Indian Mission in the country where the applicant is ordinarily resident. Applicants already in India on Long Term Visa (more than one year) shall make the application for issue of a PIO card to the authority at Delhi, Mumbai, Kolkata, Amritsar and Chennai at the addresses mentioned therein and those who are residing in areas other than at Delhi, Mumbai, Kolkata, Amritsar and Chennai, to make an application to the Ministry of Home Affairs, I Floor, Lok Nayak Bhavan, Khan Market, New Delhi. Therefore, it is clear the applications for issue of PIO card is to be made by persons who are residing at Delhi, Mumbai, Kolkata, Amritsar and Chennai to the officers situated at those cities and all other persons should make an application to the office situated at New Delhi. No doubt, it is the Government of India which issues the said P. I. O. Card. The Government of India has appointed Registration Officers at the places aforesaid. Any action or order to be passed by these officers is an order passed by the Central Government. Central Government is all pervasive through out the territory of India. But, nonetheless if any action of the officer of the Central Government is to be challenged it is to be challenged at the places where that officer is situated and where he passes the order. Merely because the Central Government is all pervasive and is located through out the country, every High Court in this country cannot issue writs. What is challenged is the action of the Government and, therefore, when the Central Government acts through its agents, through officers, the place where it acts is the place the said authority or person is situated and it is only the Court which has jurisdiction over that place which can issue a writ. In that view of the matter, it is not possible to accept the contention that, Registration Officer being a delegate of the Central Government, the Central Government is all pervasive and every High Court can grant a writ against the Central Government or its officer and, therefore, this Court has jurisdiction to issue a writ to the Registration Officer at Mumbai as he is situated outside the territorial jurisdiction of this Court.
25. In so far as the application of clause (2) of Article 226 is concerned, the petitioners have to establish that cause of action wholly or in part arises within the jurisdiction of this Court. In order to find out the cause of action it is necessary to have a look at the entire averments in the Writ Petition. As already said it is not every averment in the Writ Petition which give rise to a cause of action. Averments in the Writ Petition must have a nexus with the act complied of and it is only those facts which give rise to a cause of action and which have a nexus or relevance to the lis or dispute involved in the case which has to be taken note of. Seen from that angle the allegations in the petition makes it clear fifth respondent residing at Mumbai has made an application to the third respondent who is located at Mumbai for issue of a PIO card. The third respondent is likely to issue such card. Issue of such a card is contrary to the interest of the minor petitioners which Would prevent the third petitioner from taking these minor children back to Sydney, Australia and that is to be prevented. It is these allegations which has given rise to cause of action for the petitioner to maintain these petitions. All these facts and events which are pleaded in the Writ Petitions arises outside the jurisdiction of Karnataka, outside the territorial jurisdiction of this Court and within the territories of the neighbouring State Maharashtra and within the jurisdiction of High Court of Bombay. Therefore, as no part of cause of action arises within the jurisdiction of this Court, this Court has no jurisdiction to issue the writ sought for.
26. In so far as the other prayer in the Writ Petitions is concerned, it is only a consequential prayer and, therefore, it does not arise for consideration when this Court has no territorial jurisdiction to grant the main prayer. Under these circumstances the Writ Petitions filed by the petitioners for the relief sought for is not maintainable in this Court for want of territorial jurisdiction. Accordingly, the Writ Petitions are rejected.
27. All pending applications are ordered to be filed.