Allahabad High Court
Manish Kumar Mishra vs Union Of India And 4 Ors. on 1 May, 2020
Equivalent citations: AIR 2020 ALLAHABAD 97, AIRONLINE 2020 ALL 813
Bench: Sunita Agarwal, Anjani Kumar Mishra, Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR In Chamber Case :- WRIT - A No. - 2071 of 2017 Petitioner :- Manish Kumar Mishra Respondent :- Union Of India And 4 Ors. Counsel for Petitioner :- Vijay Gautam,Vinod Kumar Mishra Counsel for Respondent :- A.S.G.I.,A.K.Mehrotra U.O.I.,Purnendu Kumar Singh,Satish Kumar Rai Connected with (1) Case :- WRIT - A No. - 2073 of 2017 Petitioner :- Amarjeet Yadav Respondent :- Union Of India And 4 Ors. (2) Case :- WRIT - A No. - 2074 of 2017 Petitioner :- Rabesh Singh Respondent :- Union Of India And 4 Ors. (3) Case :- WRIT - A No. - 2075 of 2017 Petitioner :- Santosh Kumar Respondent :- Union Of India And 4 Ors. (4) Case :- WRIT - A No. - 5634 of 2011 Petitioner :- Jitendra Kumar Nagar Respondent :- Union Of India Thru Sec Department Of Home Affairs And Other (5) Case :- SPECIAL APPEAL No. - 22 of 2019 Appellant :- Chandra Pal Singh Respondent :- Union Of India And 3 Others (6) Case :- SPECIAL APPEAL No. - 23 of 2019 Appellant :- Sikandar Yadav Respondent :- Union Of India And 4 Others Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Anjani Kumar Mishra,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Vijay Gautam learned Senior Advocate assisted by Sri Amrish Chaterjee, Sri D.K. Mishra and Ms. Atipriya Gautam, learned advocates for the petitioners and Sri Satish Kumar Rai, Sri Manoj Kumar Singh, Sri Nand Lal, Sri Raghuraj Kishore Mishra and Sri Purnendu Kumar Singh, learned advocates appearing on behalf of the respondents.
2. This Larger Bench has been constituted under the orders of Hon'ble the Chief Justice on a reference made by the learned Single Judge vide judgment and order dated 25th January, 2017. In the writ petitions challenging the dismissal order and the order passed by the appellate and the revisional authority under the provisions of 11(1) of CRPF Act, 1949 readwith Rule 27 of Central Reserve Police Force Rules, 1955, a preliminary objection was raised with regard to the territorial jurisdiction of this Court. It was argued that no cause of action or part of cause of action has accrued to the petitioners within the State of U.P. and merely because the appellate and the revisional order had been communicated to them at their respective home districts in the State of Uttar Pradesh, same would not confer jurisdiction upon this Court to entertain the writ petitions.
3. The submission was that since the dismissal order has been passed by the Commandant, 129th Battalion, 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 judgement 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 respondents (therein) at district Bhadohi would not confer territorial jurisdiction on this Court.
Shri Vijay Gautam, learned counsel for the petitioners, on the other hand, has placed reliance upon a judgment of the Supreme Court in the case of Nawal Kishore Sharma Vs. Union of India and others reported in (2014) 9 SCC 329. Paragraph 20 of the said judgment reads as under:
"17. 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 an 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."
Shri Vijay Gautam has further placed reliance upon two Division 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 submitted that paragraph 17 of Nawal Kishore Sharma (supra) cannot be read in isolation but must be read alongwith the observations made by the Supreme Court in paragraphs 18 and 19 of the said judgment. It is submitted by them that the plea of jurisdiction was never taken before the High Court (therein). The High Court had issued notice in response to which parties appeared and participated in the proceedings before the High Court. The High Court had also passed an interim order directing the Shipping Corporation of India to pay a sum of Rs.2.75 lacs to the petitioner. However, when the writ petition was taken up for hearing the High Court took a view that no cause of action, not even a fraction of cause of action had arisen within its territorial jurisdiction. The submission is that it is in this context that the Supreme Court in paragraph 19 of the Nawal Kishore Sharma (supra) held that the petition ought not to have been dismissed for want of territorial jurisdiction.
The submission further is that in Bibhuti Narain Singh (supra), the Division Bench of the High Court has noticed that the appellant (employee therein) was posted at Faizabad where the penalty order of stoppage of annual increments was served upon him. It is, therefore, contended that this fact of the appellants posting at Faizabad, U.P., in any case would confer jurisdiction on the Lucknow Bench of the High Court even without the aid of Naval Kishore Sharma (supra) and therefore, the order/judgment in Bibhuti Narain Singh has no application to the facts of the present case. "
The conflict noticed by the learned Single Judge for reference to the Larger Bench is in the following words:-
"Having considered the judgments and orders referred to above, I am of the view that there is a conflict of opinion between the Full Bench judgment of this Court in the case of Rajendra Kumar Mishra (supra) and Constable Lalji Pandey (supra) on one hand and the orders passed by the two Division Benches of this Court in the case of Bibhuti Narain Singh (supra) and Har Govind Singh (supra) in the light of the judgment of the Supreme Court in the case of Nawal Kishore Sharma (supra) and this dispute, therefore, needs to be resolved by a larger Bench on the question with regard as to whether the observations of the Supreme Court in the case of Nawal Kishore Sharma (supra) in paragraph 17 can be said to be a 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 India1 and the Division Bench in The Director General CRPF, New Delhi Vs. Constable Lalji Pandey2 are still good law in view of the decision of the Supreme Court in Nawal Kishore Sharma Vs. Union of India and others3?
(ii) Whether the decisions of the Division Bench in Bibhuti Narain Singh Vs. Food Corporation of India and others4 and Har Govind Singh Vs. Union of India and others5 are good law on the subject in the light of judgment of the Supreme Court in the case of Nawal Kishore Sharma3?
(iii) Whether there is any conflict of opinion in the decisions of the Full Bench in Rajendra Kumar Mishra1 and Division Bench in Constable Lalji Pandey2 on one hand and in Bibhuti Narain Singh4 and Har Govind Singh5 on the other in the matter of exercise of territorial jurisdiction by the High Court in view of clause (2) of Article 226 of the Constitution of India and the issue needs to be resolved by the authoritative decision of the Larger Bench?
6. To answer the above questions, firstly we would be required to go through the above decisions of this Court referred for our consideration one by one.
(a) The Full Bench in Rajendra Kumar Mishra1 was constituted on a reference made by a learned Single Judge, wherein he had referred two contradictory Division Bench judgments of this Court in Saroj Mahanta (Mrs.), LT. Colonel v. Union of India6 and in Kailash Nath Tiwari v. Union of India7, decided on 9.1.2002. The short question before the Full Bench was whether this Court had jurisdiction to decide the writ petition challenging the Court martial proceedings and the sentence awarded to the petitioner who was serving in Indian Army.
Learned Counsel for the petitioner therein had urged that in view of the decision of the Apex Court in Dinesh Chandra Gahtori v. Chief of Army Staff8, a writ petition challenging the impugned sentence can be filed in any High Court in India as the Chief of Army Staff has been made respondent in that case. It was further urged that since the petitioner (therein) was resident of District Ballia within the State of Uttar Pradesh, the writ petition can be filed in the High Court at Allahabad.
Considering the law propounded by the Apex Court, referring to the various decisions, it was held by the Full Bench in paragraphs '39', '40' '41' and '42' as under:-
"39. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the 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 arc 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, ho cause of action can possibly occur. [Vide Radhakrishnamurithy v. Chandrasekhara Rao, AIR 1966 A.P. 334; Ram Awalamb v. Jata Shankar, AIR 1969 All. 526 (FB), and Salik Ram Adya Prasad v. Ram hakhem 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 opinion does not lay down the correct law and is overruled."
It can, thus, be seen that the question whether the writ petition challenging the Court martial proceedings and the order of the Chief of Army Staff was maintainable in this Court, was decided in the facts of that case, it was held that since no part of cause of action had arisen in the State of U.P., hence the writ petition was not maintainable in this Court.
We may record that after referring decisions of the Apex Court, the Full Bench has held that the Chief of Army Staff can only be sued either at Delhi or at a place where the cause of action, wholly or in part, arises.
Limited issue as to whether the writ petition challenging the order of the Chief of Army Staff can be maintained in this Court was answered by the Full Bench repelling the plea of the petitioner that in view of decision of the Apex Court in Dinesh Chandra Gahtori8, the Chief of Army Staff may be sued anywhere in the Country. It was held that the said observation cannot be construed to mean that the Supreme Court had laid down any absolute proposition that it is open to the petitioner to file a writ petition in any High Court in India. It was held that the said observation is only a laconic observation and cannot override the Larger Bench decisions of the Supreme Court, wherein it had laid down the principle that the place where whole or part of cause of action has arisen gives jurisdiction to the Court within whose territory such place is situate. Whether the cause of action has arisen within the territory of the particular Court will have to be determined in each case on its own facts in the context of the subject matter of the litigation, and relief claimed.
The Full Bench in Rajendra Kumar Mishra1, in principle has approved the decision of the Division Bench of this Court in Saroj Mahanta (Mrs.), LT. Colonel6, wherein it was stated that in order to determine as to whether the Court has a jurisdiction to entertain a petition, the pleadings in the petition have to be examined to form an opinion as to whether a cause of action partly or fully has arisen within the territorial jurisdiction of the Court. The Division Benches in Saroj Mahanta (Mrs.), LT. Colonel6, in the facts situation of that cases had concluded that this Court did not have territorial jurisdiction.
(b) In Constable Lalji Pandey2, 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 Mishra1 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 Pandey2 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 Police Force (C.R.P.F.) deliberately absented himself from duty for considerable long period without permission and due intimation to the department and without sending any medical certificate and proper application within time. He had not admitted himself in any of the C.R.P.F. Hospital and, therefore, his plea that he had fallen ill and could not join his duty, raised doubts about his conduct. The departmental authorities having considered various pleas raised by the petitioner in appeal and revision affirmed the punishment order. It can, thus, be clearly seen that the Division Bench had refused to entertain the writ petition rejecting on the plea that service of the dismissal, appellate and revisional orders upon the employee at his place of residence at Bhadohi would give rise to cause of action within the State of U.P. It was concluded that mere communication of the decisions at the residential address of a member of a disciplined force would not confer jurisdiction on this Court as the same cannot be said to be an integral fact to the bundle of facts which constitute cause of action in that case.
(c) Har Govind Singh5 is the decision where the Division Bench has relied upon the decision of the Apex Court in Nawal Kishore Sharma3 to set aside the order of the learned Single Judge in dismissing the writ petition. The matter was remitted to the writ Court to decide afresh keeping in view of the observation of the Apex Court in Nawal Kishore Sharma3.
With due respect to their lordships, in the order dated 26.11.2019 of the Division Bench, we do not find any reasoning given by it to reach at the conclusion as to how the order of learned Single Judge was wrong and why in their opinion, the issue required reconsideration by the Single Bench.
We, however, may note that the same issue in Har Govind Singh5 had been remitted twice. In an earlier decision dated 27.4.2016, it was observed by the earlier Division Bench that the writ petition filed in the year 2004 had wrongly been dismissed after 12 years of its institution on the ground of want of territorial jurisdiction.
Be that as it may, in our considered opinion, the conclusion drawn by the Division Bench in Har Govind Singh5 is not the law laid down as a binding precedent which merited this reference. The reference to the decision of the Division Bench in Har Govind Singh5 in the referral order is, thus, wholly irrelevant.
(d) In Bibhuti Narain Singh4, the Division Bench of this Court placing reliance on the judgment of the Apex Court in Nawal Kishore Sharma3 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 to a judgment in his favour by the Court. In determining the objection of lack of territorial jurisdiction, the court must take into consideration the facts pleaded in support of cause of action albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus, the question of territorial jurisdiction must be decided on the facts pleaded in the petition and, thus, would depend on the facts of the case.
(e) In Nawal Kishore Sharma3, the issue before the Supreme Court was regarding validity of the order passed by the Patna High Court dismissing the appellant's writ petition for want of territorial jurisdiction. The Supreme Court has discussed the law on exercise of jurisdiction (territorial) by the writ Court prior to and subsequent to the Constitution (42nd) Amendment Act, 1976, whereby clause (2) was inserted in Article 226 of the Constitution of India which reads as under:-
Clause (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"
While tracing the law holding the field, the judgment of the Apex Court in State of Rajasthan and Others vs. M/s Swaika Properties and Another9, was noted, wherein the expression "cause of action" was considered to hold as under:-
"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. .......xxxxxxxxxxx"
The expression "cause of action" considered in the case of Oil and Natural Gas Commission vs. Utpal Kumar Basu and others10, 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 of territorial jurisdiction must be decided on the facts pleaded in the petition."
It was considered that in Kusum Ingots & Alloys Ltd. vs. Union of India and Another11, the Apex 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 to hold 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.
It was further observed that :-
"10. Keeping in view the expressions used in clause (2) of Article 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."
It was noted that in Union of India and others vs. Adani Exports Ltd. and another12, the Apex Court has 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. the dispute 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.
In Om Prakash Srivastava vs. Union of India and another13, it was observed that writ petitioners have to establish that a legal right claimed by them 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.
In Rajendran Chingaravelu vs. R.K. Mishra, Additional Commissioner of Income Tax and Others14, the Apex 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 Sharma3 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 limit of the Court's jurisdiction."
7. It was thus held that in order to maintain the 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.
8. Considering the above legal position, in the facts of that case in Nawal Kishore Sharma3, it was held by the Apex Court that the writ petition ought not to have been dismissed for want of territorial jurisdiction. The facts of the case noticed by the Apex Court were that the appellant while on duty reported sickness including difficulty in breathing and was referred to the hospital. Later, he was signed off for further medical treatment. Finally, the respondent permanently declared the appellant unfit for Sea services due to dilated Cardiomyopathy (heart muscles disease). As a result, the Shipping Department of the Government of India issued an order 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. Faced with this, 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 at his home address in Gaya, Bihar, rejecting his claim for disability compensation.
9. Noticing the above facts, it was observed therein that admittedly, the appellant was suffering from serious heart muscles disease (Dilated Cardiomyopathy) and breathing problem which forced him to stay in his native place, wherefrom he had been making all correspondence with regard to his disability compensation. It was considered that all claims and representations filed by the appellant (therein) were entertained by the respondent and replied and decision on those representations were communicated to him at his home address in Bihar. Considering these facts together, it was held in Nawal Kishore Sharma3 that prima facie a part or a fraction of cause of action arose within the jurisdiction of the Patna High Court where he received the letter of refusal disentitling him from disability compensation. It was clearly observed by the Apex Court that the order of dismissal of writ petition on the ground of lack of jurisdiction cannot be sustained in the peculiar facts and circumstances of the case.
10. From an exhaustive reading of the decision in Nawal Kishore Sharma3, 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, wholly or in part, has arisen within its territorial limits. Peculiar facts in the context of the subject matter of the litigation, and relief claimed are the only guiding factors for the learned Judge(s) to decide. It is to be entirely left at the discretion of the Judge(s) considering the petition to ascertain whether the cause of action did exist entitling the petitioner to approach the High Court concerned.
12. Each and every fact pleaded in the writ petition cannot by itself constitute a cause of action. Facts which have no bearing on 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. In view of the expression used in clause (2) of Article 226 of the Constitution, even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. Integral facts pleaded must have nexus or relevance with the lis so as to constitute a cause of action.
13. We find that law on the subject is fairly well settled with the decision of Larger Benches of this Court and the Supreme Court. The judgments of Division Benches and Larger Bench placed by the counsels for both sides before the learned Single Judge do not show any conflicting view in the matter and need no further explanation or elaboration.
14. The learned Single Judge, with due respect, totally misdirected himself in not considering the ratio of the decisions placed before him and referring the matter to the Larger Bench when no conflicting view on the matter was facing him. In our considered opinion, the learned Single Judge ought to have applied the law laid down by the Apex Court and the Larger Bench to appreciate the facts of the case to form its opinion as to whether the instant writ petitions were maintainable before this Court i.e. to decide whether the facts pleaded in the writ petitions constitute cause of action, wholly or in part to confer territorial jurisdiction on this Court.
15. We may note that reference to a Larger Bench under Chapter V Rule 6 of the Allahabad High Court Rules' 1952 can only be made when there are conflicting views of the Coordinate Bench or the Larger Bench facing his Lordship on a subject/controversy before him making it difficult for him to take one or other view. Reference cannot be made merely to create 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 another15 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 before the Chief Justice of the High Court with the request to form the Special or Full Bench to hear and decide the case on the questions raised in the case.
54. Normally, the judge concerned should make a reference briefly indicating reasons for his views which necessitated to refer the matter to a Larger Bench but the same is not indispensable.
55. At the same time, we may clarify that if reasons are not stated in respect of the order of reference, the Full Bench cannot decline to answer the questions referred to it. The brief reasons for making a reference, however, has to be indicated so as to enable the Larger Bench to know the minds of Hon'ble Judge(s) making the reference.
56. In the instant matter, as expressed above, we could not find any conflict between two decisions which warranted a reference before the Larger Bench.
57. The questions, in the reference order, framed by the Division Bench, assuming conflict of opinion in the election matters, with due respect, are sweeping. On a plain reading of the order of reference, it appears that their Lordships have referred the questions to the Larger Bench with a view to create a precedent assuming that those questions of law of importance may arise in election matters and an authoritative pronouncement of a Larger Bench is needed on the subject.
58. The pronouncement by a Full Bench, with due regards to the learned Judges referring the matter, on hypothetical conflict, would not be a proper judicial exercise.
60. In our considered view, an issue being of importance by itself, cannot be a ground for referring the matter to the Larger Bench."
17. Having said that, to restate the law, we may revisit the issue to clarify the legal position as we deem it apposite to express our view in order to lend a quietus to the doubts which appear to exist.
18. As noted above in detail, it is reiterated at the cost of repetition that the Supreme Court in Nawal Kishore Sharma3 having traced the legal position pre and post insertion of clause (2) in Article 226 of the Constitution had come to the conclusion that the question of jurisdiction (territorial) must be decided in the facts of the case having due regard to the pleading in the writ petition. Appreciating a long line of decisions ranging from the year 1985 till the year 2000 and the scope of Article 226 (2) of the Constitution, 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 against whom the direction, order or writ is issued is not within its territories.
20. '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.
21. As cause of action is the bundle of facts to examine the issue of jurisdiction it is necessary that one of the interlinked fact must have occurred in a place where the case has been instituted. All necessary facts must form an integral part of the cause of action. The fact must have direct relevance in the lis involved. It is not that every fact pleaded can give rise to a cause of action so as to confer jurisdiction on the Court in whose territorial jurisdiction it has occurred.
22. 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 rise to the cause of action. In order to confer jurisdiction on a High Court to entertain a writ petition, it must be disclosed that the integral fact pleaded in support of the cause of action do constitute a cause so as to empower the Court to decide the matter and the entire or a part of it arose within its jurisdiction. The facts pleaded in the writ petition must have the nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.
23. In Ex. No. 1387-5234-M Sepoy/D.B./M.T., Chabi Nath Rai vs. Union of India & others16, a Division Bench of this Court, while considering the question whether the cause of action had arisen at Allahabad on communication of the decision on the representation of the appellant therein, had observed that the '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 others17, 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 (Americal Jurispurdence 2nd Edition Vol.1.) A person residing any where 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 Rai16 that an order imposing penalty does not take effect unless it is communicated and the cause of action may arise at a place where it is communicated but if an order is passed in appeal or on a representation filed by delinquent and the order is confirmed, it does not give rise to any fresh cause of action at a place where the order of appellate authority is communicated. It is only an intimation to an order passed on the appeal or the representation made by the delinquent at a place where he is residing or where he indicates his address for communication of the order which may be passed on appeal by the authority concerned. Every order which is communicated to a person at a particular place does not give rise to the cause of action to institute an action where it is communicated.
To support its view, the Division Bench in Chabi Nath Rai16 (supra) had taken aid from the decision of the Apex Court in State of Rajasthan and Others vs. M/s Swaika Properties9 wherein though the notification issued by the authority under Section 52(2) of Rajasthan Urban Improvement Act was served at Calcutta on the petitioner but it was held that since the proceedings for acquisition had taken place at Jaipur and were complete, mere service of notice under Section 52 of the Act would not give rise to the cause of action at Calcutta.
It was concluded in Chabi Nath Rai16 that since the confirmation of the order of sentence was made at Jammu by the confirming authority, the mere fact that the appellant sent representation from Allahabad and the decision on his representation was communicated at Allahabad did not give rise to any cause of action at Allahabad.
On the plea that the doctrine of merger is applicable in the case when an order is passed in appeal and the place where appellate order is communicated should be treated as a place where cause of action arises, it was held in Chabi Nath Rai16 that even if the doctrine of merger is applied in relation to the statutory appeal, it is only the place where the appeal is decided, the Court will have jurisdiction to entertain the petition of the appellant. The decision of the Apex Court in Collector of Customs, Calcutta vs. East India Commercial Company Calcutta and others18, was considered, wherein it was held that once an order of original authority is taken in appeal to the appellate authority, it is the High Court within whose jurisdiction the appellate order has been 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 Rai16 has been cited with approval by another Division Bench in Ex-Naik Ram Sharan vs. Union of India and others19 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 others20, 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 which jurisdiction he resides as the communication of such a decision would confer only the "right to action". The confirmation of order of dismissal with the rejection of appeal and representation does not give rise to any fresh cause of action at a place where the order of appellate authority is communicated.
28. Further, we may note that doctrine "forum conveniens" has a limited application and 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. [Reference Kusum Ingots & Alloys Ltd.11]
29. Coming back to the reference, with greatest respect, we may note that the learned Single Judge ought to have considered the decisions of the Supreme Court and the Larger Benches of this Court to decide whether this Court has jurisdiction to entertain the writ petitions instead of referring the matter to Hon'ble The Chief Justice for constituting a Larger Bench. The judgments of Division Benches considered by the learned Single Judge were decided in the facts and circumstances of the particular case. What was binding on the learned Single Judge is the ratio decidendi of the judgment.
30. We are not called upon to determine as to how can the ratio decidendi be ascertained from a decision. We may, however, note that the doctrine of precedent i.e. being bound by previous decision is limited to the decision itself and as to what is necessarily involved in it. The enunciation of the reason or principle upon which a question before a Court has been decided is alone a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made and a minor premise consisting of the material facts of the case under immediate consideration. It is not the duty of the Court to spell it out with difficulty in order to be bound by it. [See Krishna Kumar Vs. Union of India21].
31. In light of the aforesaid, we conclude that the reference itself is not merited as there is no conflict of opinion in the decisions referred by the learned Single Judge. We, however, clarified the law (with the help of the long line of decisions of the Supreme Court) in order to lend a quietus to the doubts which appear to exist so that to avoid any further delay in the proceedings.
32. Reformulated question no. (iii) of the Reference is, thus, answered in negative.
33. Reference stands answered, accordingly. The individual writ petitions and Special Appeals may now be placed before the appropriate Bench for disposal in light of the above.
Order Date :- 1.5.2020
Brijesh (Sunita Agarwal,J.)
(Anjani Kumar Mishra,J.)
(Dr. Yogendra Kumar Srivastava,J.)