Patna High Court
Sunil Kumar Yadav vs The Union Of India & Ors on 17 May, 2016
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2998 of 2013
===================================================
Sunil Kumar Yadav S/O Sri Rambachan Yadav R/O Village- Rouza
Pokhar, P.S.- Chapra (Town), District- Saran
.... .... Petitioner/s
Versus
1. The Union Of India Through Secretary Home Department, New
Delhi
2. The Union Of India, Central Industrial Security Force,Through Its
Director, New Delhi
3. The Regional Director Staff Selection Commission, 1st Floor, E
Wing, Kendriya Sadan Koramangola Bangalore-560034, Karnataka
.... .... Respondent/s
===================================================
Appearance :
For the Petitioner/s : Mr. Javed Aslam
: Mr. Prem Shela Pandey
For the U.O.I. : Mr. S.D. Sanjay, Sr. Advocate, A.S.G.
: Mr. Anshuman Singh, C.G.C.
==================================================
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
C.A.V. JUDGMENT
Date: 17/05/2016
In the present case, the petitioner is challenging the
order dated 02.11.2012 issued by the Regional Director, Staff
Selection Commission, Karnataka Kerala Region, Bangalore,
whereby and whereunder the petitioner was informed that his name
has been withdrawn from the select list as he has not submitted the
O.B.C. certificate in format.
2. At the present stage, the respondent has raised the issue
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with regard to territorial jurisdiction of this Court, claiming that no
cause of action or part thereof or even fraction of cause of action
has taken place in the State of Bihar within the territorial
jurisdiction of this Court, and as such, the present Writ Application
is not maintainable. Therefore, it is better to the petitioner to
approach the appropriate Court, raising his grievance.
3. For deciding the issue of territorial jurisdiction and the
issue of cause of action or the part thereof some relevant facts of
this case has to be taken into consideration.
4. In the present case, the Staff Selection Commission of
Bangalore has issued an advertisement, providing the qualification
corresponding to the post mentioned in the said advertisement. The
Notification surfaced in the State of Bihar and notified throughout
the territory of India. The petitioner one of the aspiring candidates,
applied for the post of Sub-Inspector (Fire) within the time,
annexing his caste certificate, showing that he falls under the
O.B.C. Category. Accordingly, the Admit Card was issued to the
petitioner for Common Screening Test and fixed the examination
centre at Prayag Mahila Vidyapith, Allahabad. After clearing the
preliminary test, the petitioner was asked to appear in the final
written test. The petitioner appeared in the final written test at the
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centre located in the State of Uttar Pradesh at Lukhnow in
Gurunanak Girls Degree College, Chargbagh. As the petitioner did
not submit his caste certificate in a proper format, it was
communicated through the impugned order dated 02.11.2011
(Annexure-7 to the Writ Application) that his name has been
withdrawn from the select list as he has not submitted the O.B.C.
certificate in format.
5. The claim has been made by the respondents that as
the advertisement was issued from the Karnataka and Kerala centre
at Banglore and the petitioner has appeared in the examination at
Allahabad and later on the petitioner has appeared in the final
written test at Lukhnow, mere communication of the impugned
order will not create any cause of action in favour of the petitioner
to approach this Court in extraordinary jurisdiction of Article 226 of
the Constitution of India. Further, communication of the result or
communication of letter withdrawing his name from the select list
at his native place, will not in any manner create a semblance of
cause of action and as such, this Court should not entertain this Writ
Application and dismiss the same, giving liberty to the petitioner to
approach the proper forum in accordance with law.
6. In support of his contentions, learned counsel for the
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respondent has relied upon the following judgments:-
(i) 2014 (4), P.L.J.R., page 227, paragraph No.20.
(ii) 2015(7) S.C.C., page 130
(iii) 1961, S.C., page 533
(iv) 2001 (9) S.C.C., page 525
(v) 2007(11) S.C.C., page- 335
(vi) 1985 (3) S.C.C., page 217
(vii) 2002(1) S.C.C., page 567
(viii) 1988 (Allahabad), page 36
(ix) 2009(1) P.L.J.R., page 553
(x) 2003 (3) P.L.J.R., 479
(xi) 2002(4) P.L.J.R., page 36
(xii) 2001 (4) P.L.J.R., 678
7. In contra, learned counsel for the petitioner submits
that this Court has very much territorial jurisdiction to entertain this
Writ Application and giving relief to the petitioner. For creating the
cause of action he has placed some facts indicating having a
jurisdiction to pass an order in this Writ Application as he has
submitted that the petitioner could know about the vacancy for the
post of Sub-Inspector (Fire) through an advertisement; he has
submitted application from his native place and so much so that
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Admit Card was served on two occasions at his native place for
appearing in the examination before the Centre either at Allahabad
or at Lukhnow; the impugned order by which his name has been
withdrawn from the selected list was also served upon him at his
residence at Chapra in Bihar.
8. He further submits that Article 226 of volume 2 of the
Constitution of India provides that the High Court will have a
jurisdiction to entertain the application when any cause of action
and part thereof has been taken place within its territorial
jurisdiction. He placed reliance on a judgment in the case of Nawal
Kishor Sharma vs. Union of India and ors., reported in 2014(4)
P.L.J.R., page-227, where the order was communicated to Nawal
Kishore Sharma at his native place and the Supreme Court has held
that indisputably the cause of action has taken place within the
territorial jurisdiction of this Court.
9. He has further placed reliance on the judgments
reported in 2001(4) P.L.J.R., page-678 and 2003(2) P.L.J.R., 151,
where this Court has held that service of order of dismissal on the
native place creates a cause of action for approaching to this Court.
In those cases, the issue of territorial jurisdiction was raised as the
order of dismissal was served within the territorial jurisdiction of
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this Court. The Court has exercised the power and passed the order
in favour of those petitioners.
10. In contra, learned counsel for the respondent has
placed reliance on a judgment reported in 2002(4) P.L.J.R., page
36, there as per the learned counsel for the respondent earlier
judgment reported in 2001(4) P.L.J.R., page-678 has been
considered and delineated the cause of action depends on bundle of
facts.
11. Having considered the rival contentions of the parties,
this Court has to decide about the territorial jurisdiction of this
Court in entertaining the present Writ Application. Few facts are
admitted that the Notification was published from the Banglore
which is in the State of Karnataka; looking to the advertisement the
petitioner has applied for the post of Sub-Inspector (Fire),
whereupon, he was called upon to appear on two occasions at two
different centers, which are situated in the State of Uttar Pradesh
but the order which is under challenge has been communicated,
thereby withdrawing the name of the petitioner from the select list
of candidate.
12. The issue with respect to cause of action and part
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thereof has been dealt with in long line of cases and this Court has
to consider the factors for cause of action or part thereof and its
applicability to ascertain as to whether any cause of action or part
thereof has taken place within the territorial jurisdiction of this
Court.
13. Before deciding the issue with regard to territorial
jurisdiction of this Court, it will be necessary to make an inquiry
about the power and function conferred to every High Court under
Article 226 of the Constitution of India, which is an extraordinary
power given to the High Court to exercise five types of writs
maintained in Article 226 of the Constitution of India. The facets of
jurisdiction to exercise the power of writ was quite different before
15th Amendment of Constitution of India, scope changed after the
amendment. Before 15th Constitutional amendment Act, 1966, the
original provision of Article 226 was as follows:-
"Notwithstanding anything in Article 32 every High
Court shall have powers, throughout the territories
in relation to which it exercise 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, prohibitions,
quo warranto and certiorari, or any of them, for the
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enforcement of any of the rights conferred by Part III
and for any other purpose"
14. The parameter of exercise of power under Article 226 was
drastically changed after the amendment amended through 42nd
Constitutional Amendment, 1976, but the provision which was
added by way of 15th Amendment was restored by 44th Amendment
Act, 1978. The background and cause of this Constitutional
amendment has to be inquired into, as before the amendment, the
formulation of expression was hereunder, "every High Court shall
have power, throughout the territories in relation to which it
exercises the jurisdiction" used in this article has been interpreted
by the Hon'ble Supreme Court in Election Commission, India, vs.
Saka Venkata Rao, reported in A.I.R., 1953, S.C., 210, there the
Madras High Court has issued the Writ of prohibition against the
Election Commission having its permanent seat at New Delhi. The
matter went to the Hon'ble Supreme Court and the Hon'ble
Supreme Court in a judgment found fault with the judgment of the
High Court as seat of the Election Commission was at New Delhi,
the writ would have been entertained by the Punjab and Haryana
High Court.
15. It will be necessary to quote some relevant paragraphs of
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Saka Venkata Rao (supra), which read as under:-
"...We are unable to agree with the learned Judge
below that if a tribunal or authority permanently
located and normally carrying on its activities
elsewhere exercises jurisdiction within those territorial
limits so as to affect the rights of parties therein, such
tribunal or authority must be regarded as "functioning"
within the territorial limits of the High Court and being
therefore amenable to its jurisdiction under Art. 226.
The rule that cause of action attracts jurisdiction in
suits is based on statutory enactment and cannot apply
to writs issuable under 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. Nor is much assistance to be
derived from the observations quoted above...
9. It was said that it could not have been contemplated
that an inhabitant of the State of Madras, feeling
aggrieved by a threatened interference with the
exercise of his rights in that State by an authority
located in Delhi and acting without jurisdiction, should
seek his remedy under Art. 226 in the Punjab High
Court. It is a sufficient answer to this argument of
inconvenience to say that, the language of the article
being reasonably plain, it is idle to speculate as to what
was or was not contemplated."
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16. The issue of territorial jurisdiction of the High Court
under Article 226 came up for consideration before the Hon'ble
Supreme Court in the case of K.S. Rashid and Son vs. Income Tax
Investigation Commission and Others, reported in A.I.R. 1954,
S.C. 207 (Vol. 41, C.N. 46), the territorial jurisdiction of the High
Court was challenged in relation to person/persons is/are located
outside the territorial jurisdiction. The Hon'ble Court held, two
limitations are thereon the exercise of power of a High Court, under
Article 226 of the Constitution of India; one is, the power is to be
exercised throughout the territories in relation to which it exercises
jurisdiction as the right of the High Court cannot cross the boundary
limits of territory where it locates and the High Court is only
empowered to issue writs must be within those territories, other
limitations is that the person and authority to whom writ is to be
issued by the High Court must be within its territorial jurisdiction.
17. It will be useful to quote relevant paragraph of the aforesaid
judgment, which reads as under:-
"There are only two limitations placed upon the
exercise of these powers by a High Court under article
226 of the Constitution; one is that-the power is to be
exercised "throughout the territories in relation to
which it exercises jurisdiction", that is to say, the writs
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issued' by the court cannot run beyond the territories
subject to its jurisdiction. The other limitation is that
the person or authority to whom the High Court is
empowered to issue writs "must be within those
territories" and this implies that they must be amenable
to its jurisdiction either by residence or location within
those territories. It is with reference to these two
conditions thus mentioned that the jurisdiction of the
High Courts to issue writs under article 226 of the
Constitution is to be determined."(emphasis supplied)
18. The matter again came up for consideration in Lt. Col.
Khajoor Singh vs. Union of India and another, reported in A.I.R.
1961 S.C. 532, there the petitioner-Khajoor Singh was a member
of Armed forces of Jammu and Kashmir, which was amalgamated
with the Defence Force, was holding the substantive rank of
Lieutenant Colonel. After amalgamation, the Union of India vide
letter dated 31st July, 1954, issued a notice of premature retirement
of Khajoor Singh. He challenged the action of the respondents
before the Jammu & Kashmir High Court. The High Court after
taking into consideration of judgments of Saka Venkata Rao
(supra) and the case of K.S. Rashid and Son (supra), rejected the
writ application on the ground of lack of territorial jurisdiction.
The matter was first heard by the five Judges Bench, when a plea
was taken to distinguish the aforesaid two judgments, the matter
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was referred to the Larger Bench of seven Judges to examine the
correctness of the aforesaid two judgments. Basically plea was
taken by Khajoor Singh that the Government of India and its
authorities are present throughout the territory of India and correct
test would be whether or not the cause of action arises within the
territorial limit of the High Court. It was replied by the Union of
India that the Government of India functions through its officers
and, therefore, the location contemplated means the place at which
the orders impugned are ordinarily passed. The concept of cause of
action as is found in adjudication of the suit is not applicable, in
the concept of exercise of power under Article 226. It was further
submitted by the Union of India that the expression "in appropriate
cases" means that there may be cases where though the Officers of
Union Government has passed the order and that Officer falls
within the territorial jurisdiction of that High Court. The majority
view was the same as was taken by the Supreme Court in two
cases, but Justice K. Subba Rao, dissented, applied the concept of
cause of action and dissenting view was taken, the Union
Government has no constitutional situs in a particular place, but it
exercises its executive powers in respect of matters to which
Parliament has power to make laws and the power in this regard is
exercisable throughout India. Further dissenting view has been
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taken when by exercise of its powers the Union Government
makes an order infringing the legal right or interest of a person
residing within the territories in relation to which a particular High
Court exercises jurisdiction, that High Court can issue a writ to the
Union Government. In law, it must be deemed to be "within that
State also". But the majority view has been taken as the seat of the
office is located at Delhi, which does not fall within the limits of
the High Court of Jammu and Kashmir. The same is not
maintainable on the question of territorial jurisdiction and has
found that proper High Court would the Punjab and Haryana High
Court.
19. It will be relevant to quote paragraph Nos. 14, 15 and 16
of the aforesaid judgment, which are as follows:-
"14. The seat of a Government is sometimes
mentioned in the Constitutions of various countries
but many a time the seat is not so mentioned. But
whether the seat of a Government is mentioned in the
Constitution or not, there is undoubtedly a seat from
which the Government as 'such functions as a fact.
What Art. 226 requires is residence or location as a
fact and if therefore there is a seat from which the
Government functions as a fact even though that seat
is not mentioned in the Constitution the High Court
within whose territories that seat is located will be the
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High Court having jurisdiction under AA. 226 so far
as the orders of the Government as such are
concerned. Therefore, the view taken 1953 SCR
1144:(AIR 1853 SC 210) (supra) and 1954 SCR 738
(AIR 1954 SC 207)(supra) that there is two-fold
limitation on the power of the High Court to issue
writs etc. under Art. 226, namely, (i) 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 the territories
subject to its jurisdiction, and (ii) the person or
authority to whom the High Court is empowered to
issue such writs must be "within those territories"
which clearly implies that they must be amenable to
its jurisdiction either by residence or location within
those territories, is the correct one.
15. This brings us to the second point, namely,
whether it is possible to introduce the concept of
cause of action in Art. 226 so that the High Court in
whose jurisdiction the cause of action arose would be
the proper one to pass an order thereunder. Reliance
in this connection has been placed on the judgment of
the Privy Council in 70 Ind. App 129: (AIR 1943 P.C.
164). In that case the Privy Council held that even
though the impugned order was passed by the Board
of Revenue which was located in Madras, the High
Court would have no jurisdiction to issue a writ
quashing that order, as it had no jurisdiction to issue
a writ beyond the limits of the city of Madras except in
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certain cases, and that particular matter was not
within the exceptions. This decision of the Privy
Council does appa- rently introduce an element of the
place where the cause of action arose in considering
the jurisdiction of the High Court, to issue a writ. The
basis of the at decision, however, was the peculiar
history of the issue of writs by the three Presidency
High Courts as successors of the Supreme Courts,
though on the literal construction of cl. 8 of the
Charter of 1800 conferring jurisdiction on, the
Supreme Court of Madras, there could be little doubt
that the Supreme Court would have the same
jurisdiction as the Justices of the Court of King's
Bench Division in England for the territories which
then were or thereafter might be subject to or depend
upon the Government of Madras. It will therefore not
be correct to put too much stress on the decision in
that case. The question whether the concept of cause
of action could be introduced in Art. 226 was also
considered in Saka Venkata Subba Rao's case, 1953
SCR 1144: (AIR 1953 SC 210) and was repelled in
these words:-
"The rule that cause of action attracts jurisdiction
in suits is based on statutory enactment and cannot
apply to writs issuable under Art. 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."
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16. Article 226 as it stands does not refer anywhere
to the accrual of cause of action and to the
jurisdiction of the High Court depending on the place
where the cause of action accrues being within its
territorial jurisdiction. Proceedings under Art. 226
are not suits; they provide for extraordinary remedies
by a special procedure and give powers of correction
to the High Court over persons and authorities and
these special powers have to be exercised within the
limits set for them. These two limitations have already
been indicated by us above and one of them is that the
person or authority concerned must be within the
territories over which the High Court exercises
jurisdiction. Is it possible then to overlook this
constitutional limitation and say that the High Court
can issue a writ against a person or authority even
though it may not be within its territories simply
because the cause of action has arisen within those
territories? It seems to us that it would be going in the
face of the express provision in Art. 226 and doing
away with an express limitation contained therein if
the concept of cause of action were to be introduced
in it. Nor do we think that it is right to say that
because Art. 300 specifically provides for suits by and
against the Government of India, the proceedings
under Art. 226 are also covered by Art. 300. It seems
to us that Art. 300 which is on the same line as s. L76
of the Government of India Act, 1935, dealt with suits
as such and proceedings analogous to or consequent
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upon suits and has no reference to the extraordinary
remedies provided by Art. 226 of the Constitution. The
concept of cause of action cannot in our opinion be
introduced in Art. 226, for by doing so we shall be
doing away with the express provision contained
therein which requires that the person or authority to
whom the writ is to be issued should be resident in or
located within the territories over which the High
Court has jurisdiction. It is true that this may result in
some inconvenience to persons residing far away from
Now Delhi who are aggrieved by some order of the
Government of India as such, and that may be a
reason for making a suitable constitutional
amendment in Art.226. But the argument of
inconvenience, in our opinion, cannot affect the plain
language of Art. 226, nor can the concept of the place
of cause of action be introduced into it for that would
do away with the two limitations on the powers of the
High Court contained in it."
Basically found that the concept of cause of action is of
suits and that concept cannot be imported while adjudicating the
dispute in exercise of power under Article 226 of the Constitution
of India.
20. As the matter was brought to the notice of the
Parliament, looking to the inconvenient felt by the Citizen as the
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person who is residing far from Panjab and Haryana high Court on
account of the Constitutional constrain was forced to approach the
Punjab and Haryana High Court with respect to the order passed by
the Union of India at New Delhi. By 15th Amendment Act, through
Section-8 of the Amendment Act became Clause 2 of Article 226;
thereby the concept of cause of action was inserted. For
convenience, it will be appropriate to quote Clause-2 of Article 226
of the constitution of India, which reads as follows:-
"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"
So the concept of cause of action was inserted in Article
226 of the constitution of India.
21. The question of territorial jurisdiction of the High Court
to entertain the Writ Application in the context of the cause of
action has been dealt with by the Hon'ble Supreme Court on
number of occasions. It will be relevant to examine certain
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decisions of Hon'ble Supreme Court, this Court and other High
Courts for understanding the parameters and facets in what manner
the power has to be exercised in relation to cause of action with
respect to territorial jurisdiction under Article 226 of the
Constitution of India.
22. The issue of exercise of jurisdiction under Article 226
of the Constitution of India in the context of cause of action with
respect to the High Court came for consideration in State of
Rajasthan vs. Swastik Properties and another reported in 1985 (3)
SCC page 217. In this case, the question was raised as to whether
the service of Notice under sub-section 2 of Section 52 of Rajasthan
Urban Improvement Act, 1959, served upon the Swastik Properties
at the Calcutta office was an integral part of cause of action and was
sufficient to invest the Calcutta High Court with the jurisdiction to
entertain an petition under Article 226 of the Constitution of India.
The said Swastik Company owned some lands in outskirts of Jaipur
city, the Special Officer of Town Planning Jaipur, issued a notice
under Section 52 of the Act for acquiring the land for public
purposes under the development scheme. Notice was served on the
respondents. In compliance thereof, they appeared before the
Special Officer, Jaipur and denied the existence of public purpose
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for acquisition as they were required to start a new business in the
State of Rajasthan. On different dates representatives were appeared
and ultimately rejected the prayer of the respondents for release of
the land and recommended for acquisition of the entire land. The
question was raised about the jurisdiction of Calcutta High Court
entertaining the writ application, whereby the meaning of cause of
action has been taken from Maulla's Code of Civil Procedure as the
cause of action means which is, "if traversed, it would be necessary
for the plaintiff to prove in order to support his right to a judgment
of the Court. The Court has held that mere service of notice is not
an integral part of cause of action as entire cause of action
culminating in acquisition of land arose in the State of Rajasthan
within the territorial jurisdiction of the Rajasthan High Court at
Jaipur.
23. It will be necessary to quote relevant paragraph of the said
judgment, which reads as under:-
"...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
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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..."
24. In the case of Daya Shanker Bhardwaj vs. Chief of the
Air Staff, New Delhi and Others, reported in AIR, 1988
Allahabad, 36, the question of territorial jurisdiction came up for
consideration before the Allahabad High Court. The High Court
examined the Constitutional development that has taken place with
respect to Article 226 of the Constitution of India held that cause
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of action and fraction of cause of action would decide the citus of
the High Court where the writ proceeding would be entertained.
The Court further held that mere service of notice does not create
integral cause of action. A person residing anywhere in the country
being aggrieved by an order of the Central Government or State
Government or Authority or person may have a right of action at
law, but it can be enforced 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. In that case the petitioner was
junior Warrant Officer in Air Force, was superseded when he was
posted at Madras and he sought a direction by filing a writ petition
at Allahabad to appointing authority to decide his representation as
he was never posted in the State of U.P., no cause of action arose
in the State of U.P., which could entitle him to approach High
Court at Allahabad.
25. It will be relevant to place reliance on the judgment of
the Hon'ble Supreme Court in Oil and Natural Gas Commission vs.
Utpal Kumar Basu and Others, reported in 1994(4) SCC, 711.
Before dealing with this issue it will be appropriate to examine the
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factual matrix of the case to understand the concept of the cause of
action. In this case the Oil and Natural Gas Commission (ONGC) a
Government of India undertaking has a gas processing plant at
Hazira in the State of Gujarat. Engineering India Limited (E.I.L.)
consultant of the O.N.G.C. issued an advertisement in all the leading
newspapers including those circulating in the State of West Bangal.
According to the said advertisement, tenders containing offer were
to be communicated at E.I.L. office, New Delhi. NICCO, a Calcutta
based Company on the basis of the advertisement published in the
Times of India also submitted his tender. The E.I.L. opened all the
tenders and rejected the bid of NICCO on the ground that it does not
fulfill the criteria. The matter was referred to the Tender Committee.
The Tender Committee did not agree with the E.I.L., the Tender
Committee fixed a meeting for clarification proposed by the
Company and ultimately, arrived to a finding that the NICCO has no
requisite experience and finally the Steering Committee rejected the
offer of NICCO and awarded the contract to M/s. SIMCO Limited.
A writ was filed before the Calcutta High Court and the Calcutta
High Court entertained the writ petition and passed positive order,
giving direction to consider the offer of the CIMMCO, in the event
offer is found to be valid and lowest, the same should be accepted by
the ONGC. The matter went to the Hon'ble Supreme Court there
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
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specific question was raised about the territorial jurisdiction of the
Calcutta High Court and there the Hon'ble Supreme Court
considered the meaning of the cause of action and held that it is well
settled that 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.
26. It will be necessary to quote relevant paragraphs, which
are as follows:-
6. It is well settled 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. In Chand Kour v. Partab
Singh' Lord Watson said:
"... the cause of action has no relation whatever to
the defence which may be set up by the defendant,
nor does it depend upon the character of the relief
prayed for by the plaintiff. It refers entirely to the
ground set forth in the plaint as the cause of
action, or, in other words, to the media upon
which the plaintiff asks the Court to arrive at a
conclusion in his favour."
27. Ultimately, the Hon'ble Supreme Court found that mere
service of notice at Calcutta office does not create any cause of
action and part thereof. It will also be necessary to quote relevant
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
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portion of the same judgment, which reads as under:-
"...The question which arose for consideration in the
backdrop of the said facts was whether the High Court
of Calcutta had jurisdiction to entertain the petition and
grant ex parte ad interim relief. This Court observed
that upon the said facts, the cause of action neither
wholly nor in part arose within the territorial limits of
the Calcutta High Court and therefore the learned
Judge had no jurisdiction to issue rule nisi or to grant
the ad interim ex parte prohibitory order. After
extracting the definition of the expression "cause of
action" from Mulla's Code of Civil Procedure, this
Court observed as under: (SCC p. 223, para 8)
"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."
12.Pointing out that after the issuance of the notification
by the State Government under Section 52(1) of the Act,
the notified land became vested in the State Government
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
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free from all encumbrances and hence it was not
necessary for the respondents to plead the service of
notice under Section 52(2) for the grant of an
appropriate direction or order under Article 226 for
quashing the notification acquiring the land. This Court,
therefore, held that no part of the cause of action arose
within the jurisdiction of the Calcutta High Court. This
Court deeply regretted and deprecated the practice
prevalent in the High Court of exercising jurisdiction and
passing interlocutory orders in matters where it lacked
territorial jurisdiction. Notwithstanding the strong
observations made by this Court in the aforesaid decision
and in the earlier decisions referred to therein, we are
distressed that the High Court of Calcutta persists in
exercising jurisdiction even in cases where no part of the
cause of action arose within its territorial jurisdiction. It
is indeed a great pity that one of the premier High Courts
of the country should appear to have developed a
tendency to assume jurisdiction on the sole ground that
the petitioner before it resides in or carries on business
from a registered office in the State of West Bengal. We
feel all the more pained that notwithstanding the
observations of Court made time and again, some of the
learned Judges continue to betray that tendency. Only
recently while disposing of appeals arising out of SLP
Nos. 10065-66 of 1993, Aligarh Muslim University v,
Vina.v Engineering Enterprises (P) Ltd.6, this Court
observed:
"We are surprised, not a little, that the High Court of
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Calcutta should have exercised jurisdiction in a case
where it had absolutely no jurisdiction."
In that case, the contract in question was executed at
Aligarh, the construction work was to be carried out at
Aligarh, the contracts provided that in the event of
dispute the Aligarh court alone will have jurisdiction,
the arbitrator was appointed at Aligarh and was to
function at Aligarh and yet merely because the
respondent was a Calcutta-based firm, it instituted
proceedings in the Calcutta High Court and the High
Court exercised jurisdiction where it had none
whatsoever. It must be remembered that the image and
prestige of a court depends on how the members of that
institution conduct themselves. If an impression gains
ground that even in cases which fall outside the
territorial jurisdiction of the court, certain members of
the court would be willing to exercise jurisdiction on the
plea that some event, however trivial and unconnected
with the cause of action had occurred within the
jurisdiction of the said court, litigants would seek to
abuse the process by carrying the cause before such
members giving rise to avoidable suspicion. That would
lower the dignity of the institution and put the entire
system to ridicule. We are greatly pained to say so but if
we do not strongly deprecate the growing tendency we
will, we are afraid, be failing in our duty to the
institution and the system of administration of Justice.
We do hope that we will not have another occasion to
deal with such a situation."
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28. In the same volume in Aligarh Muslim University and
another vs. Vinay Engineering Enterprises (p) Ltd. And another,
page No.710, the Hon'ble Supreme Court said that the Calcutta
High Court should not have exercised its jurisdiction in a case
where it had absolutely no jurisdiction. The contracts in question
were executed at Aligarh, the construction work was carried out at
Aligarh, even contract provided that in the event of dispute the
Aligarh Court alone will have jurisdiction. The Arbitrator was from
Aligarh and was to function there. No cause of action taken place
within the limit of Calcutta High Court and the High Court of
Calcutta should not have exercised the power and should not have
entertained the writ application.
29. Another judgment in the case of Dinesh Chandra
Cahtori vs. Chief of Army Staff and Another, reported in 2001(9)
SCC 525, has been pressed into service by the learned counsel for
petitioner for the purpose of showing the cause of action and
claiming that the writ petition is maintainable. In the said judgment,
the Hon'ble Supreme Court has not dealt with the issue as to what is
the meaning of cause of action, but the peculiar facts and
circumstances of that case and the period the petition remained
pending was taken into consideration by the Hon'ble Supreme
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Court and held as under:-
"4. The writ petition was filed in 1992. The
impugned order was passed in 1999. This is a fact
that the High Court should have taken into
consideration. More importantly, it should have
taken into consideration the fact that the Chief of
Army Staff may be sued anywhere in the country.
Placing reliance only on the cause of action, as the
High Court did, was not justified."
30. But this judgment cannot be said to be an authority in
terms of Article 141 of the Constitution of India as the issue of
territorial jurisdiction has not been scanned and draft with, the
Court held that the petition is maintainable. So this judgment cannot
be an authority under Article 141 of the Constitution of India.
31. The issue of territorial jurisdiction of the High Court as
provided under Article 226 (2) of the Constitution of India came for
consideration before this Court in Sushil Kumar Pandey vs. Union
of India & Ors. reported in 2001 (4) PLJR 678, there the petitioner
was serving in Indian Army located in Bihar Regiment was posted
at Cooch Bihar (West Bangal). During Kargil War there was a
Vijay Operation, the appellant was dispatched to participate in the
said operation and was moved to Battalik Sector. One of his fellows
Sepoy, Arvind Kumar Pandey belonging to the district of West
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
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Champaran died during the combat. The appellant was asked to
hand over the dead body of said Martyr Arvind Kumar Pandey to
his parents at his native place was given the movement order with
the direction to return back during the period mentioned in the
movement order, but he did not return, a summary court marshal
proceeding was initiated for his absence. The appellant participated
in the said proceeding, his signature was obtained in the relevant
documents and thereafter the order of dismissal was passed and all
the Jawans of the Unit were informed that his service has been
dispensed with. He was also handed over warrant from
Jammu Tawi to his village home. Subsequently, a letter was sent to
his mother informing her about the dismissal from service of her
son. The appellant filed a writ application before this Court against
the order of his termination from the Service. The Court after
placing reliance on O.N.G.C. case (supra), State of Punjab vs. Amar
Singh, reported in AIR 1966, SCC 1313 and State of Punjab v s.
Khemi Ram, reported in AIR 1970 SC, 214 taken a view that mere
passing of an order on dismissal would not be effective unless it is
published or communicated to the officer concerned. The Court also
held that in case of suspension, once the order is issued and it is sent
out to the Government servant concerned, it must be held to have
been communicated to him, no matter when he actually received it,
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but in case of dismissal actual knowledge by employee may be
become necessary because of the consequences, but that will not be
the situation in case of suspension as after the order of suspension
was passed, there was no question of his doing any act or passing
any order which is likely to be challenged. In that case the Court
held that this Court has no territorial jurisdiction on account of fact
that the order was passed in his presence so much so that he has
also signed on the proceeding though the material on record
sufficiently shows that the order of dismissal was became effective.
The notice was sent to the mother only for the purposes of
information that would not create any cause of action and part
thereof. So, in that case, it was held that when and where it has been
made effective is very important material to arrive to a conclusion
at whose jurisdiction the cause of action or fraction of cause of
action has taken place.
32. In Union of India and Others vs. Adani Exports Ltd.
and Others, reported in 2002(1) SCC, 567 identical issue with
regard to territorial jurisdiction came for consideration before the
Hon'ble Supreme Court. In that case, the Adani Export was
carrying on the business of import and export from Ahmedabad.
The order for export and import was placed from and were executed
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
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at Ahmedabad. The documents and payments for export and import
were sent/made at Ahmedabad. The credit of duty claimed in
respect of export was handled from Ahmedabad. Since the export
order was received at Ahmadabad and also payment received at
Ahmedabad, non-granting and denial of utilization of the credit in
the said pass book would affect the business of the petitioner at
Ahmedabad. The respondent Nos. 1, 2 and 3 having original office
at Ahmadabad and on that basis claim was made that cause of
action or the part thereof has taken place within the jurisdiction of
Gujarat High Court, but the High Court refused to entertain the writ
application on the issue of territorial jurisdiction. The Court
recorded that the factum of respondents, having executed a bank
guarantee and a Bond at Ahmadabad, will have no direct nexus or
bearing on the disputes involved in these applications. It has been
found that with regard to correctness of the valuation, separate
proceedings have been initiated and against the findings in those
proceedings, separate appeals are pending in the Court. It has been
recorded that none of the respondents were living in the jurisdiction
of the High Court of Ahmedabad as the pass-book in question,
benefit of which the respondent were seeking, was issued by an
authority who was stationed at Chennai and the authority, who was
the competent person in respect of the matters concerning the Pass
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
33/56
Book Scheme and who discharged various functions under the
Scheme was also stationed at Chennai. The entries in the pass-book
under the concerned Scheme were to be made by the authorities at
Chennai. The export of prawn made by the respondents and the
import of the inputs benefit of which the respondents were seeking
also will have to be made through the same Port i.e. Chennai. The
Court also taken a view that consideration that arise in deciding the
question of territorial jurisdiction in criminal cases may not always
apply to cases involving civil disputes like the Special Civil
applications and held that Ahmedabad High Court was right in
refusing to entertain the Application on the issue of territorial
jurisdiction, though the Court was of the view that while deciding
the issue of cause of action the averment made in the body of the
writ petition has to be looked into not the defence of the other side.
The Court said that non-granting and denial of credit in the pass-
book having an ultimate effect on the business of the respondents at
Ahmedabad would not also give rise to any such cause of action to
the Court at Ahmedabad to adjudicate on the actions complained
against the appellants. In that view of the matter, the Hon'ble
Supreme Court held that no cause of action or part thereof has taken
place in the territorial jurisdiction of the Ahmedabad High Court.
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33. In Gita Devi & Anr. Vs. The Deputy General
Manager, Allahabad Bank and Ors. reported in 2002 (4) page 36,
again the matter of territorial jurisdiction came up for
consideration. The Court after placing reliance on the judgment of
O.N.G.C. case (supra) held that mere residence of a person within
the territorial jurisdiction of the High Court or his entering in the
correspondence including receiving reply thereto would no confer
jurisdiction to entertain the writ application by the High Court
unless it forms an integral part of cause of action. An application
sent for appointment from a place, the place as such does not
become integral part or cause of action, for such an application can
be sent from any place. If this fact were to constitute a cause of
action, the result would be that a person would chooses a particular
place which he may consider convenient and from there he sent his
application, thereby conferring territorial jurisdiction, but mere
receiving the reply also does not create a cause of action.
34. It will be relevant to quote Paragraph No. 9 of the said
judgment, which reads as under:-
"9. From the decisions and observations of the
Supreme Court in the above noted two cases it is
clear that the mere residence of the person within the
territorial jurisdiction of the High Court or his
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entering into correspondence, including receiving
reply thereto would not confer jurisdiction to
entertain the writ petition by the concerned High
Court unless it forms an integral part of the cause of
action. As is well known 'cause of action' comprises
of bundle of facts which are necessary to prove in
order to succeed in any action in a Court of law.
Where an application is sent for appointment from a
place, the place as such does not become integral
part of cause of action, for such an application can
be sent from any place. If this fact were to constitute
a cause of action, the result would be that a person
would choose a particular place which he may
consider convenient, and from there send his
application, thereby conferring territorial
jurisdiction on the concerned High Court. The fact
that reply is sent to the applicant at that place has no
significance, for the replies are normally sent at the
address which is mentioned in the application."
35. In the case of Ram Chandra Singh vs. The Union of
India & Ors. reported in 2003(3) PLJR, 479, the matter with regard
to territorial jurisdiction of the High Court came up for
consideration. In the aforesaid case, the person was employed in
security force. A proceeding was initiated against him and
ultimately he was awarded a punishment of rigorous imprisonment
and was dismissed from service. The order was communicated to
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
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the Commandant. The Court held at Head quarter of the BSF at
Kupwara is in the State of Jammu & Kashmir. The petitioner of that
case filed an appeal before Deputy Inspector General. The rigorous
imprisonment was changed to simple imprisonment but the order of
dismissal was maintained. Against that order, he preferred a
statutory petition and was informed that his statutory petition has
been rejected by the Director General of the Force. The Court
considered several judgments such as Naval Kishore Sharma vs.
Union of India and Ors. (1983 BBCJ 23, Rameshwar Prasad Vs.
the Union of India and Ors. (2003 (2) PLJR 151) and Sunil Kumar
Pandey vs. Union of India and Ors (2001(4) PLJR, 678) and held
that mere filing of statutory petition from a place within the State
of Bihar and the decision of the said petition being communicated
within this state, shall not confer jurisdiction to this Court to
entertain the petition.
36. It will be relevant to quote Paragraph No. 6 of the said
judgment, which reads as under:-
"6. In my opinion, filing of statutory petition from a
place within the State of Bihar and the decision on the
said petition being communicated to him within this
State, shall also not confer jurisdiction on this Court
This point is not res integra and in fact subject matter of
discussion in a large number of cases. In the case of
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Nand Kishore Singh (supra), this Court held that the
act of merely filing an appeal against an adverse order
would not be deemed to be a part of cause of action.
Further in the case of Sanjay Kumar Yadav v. Union of
India and Ors.,(C.W.J.C. No. 1006 of 2002) disposed of
on 12.9.2002, this Court had the occasion to consider
this question and on a review of various authorities
observed as follows:
"Adverting to the present case, the discharge of the
petitioner was complete on or about 15-5-2000 when
the order was issued and served on him at
Bangalore. The fact that he filed representation from
Begusarai and received rejection thereof at
Begusarai cannot be construed as part of cause of
action, for it was open to him to make such
representation from any place. The point at issue in
my opinion is covered by the above said decisions of
the Supreme Court as well as this Court. I have,
therefore, no difficulty in holding that this writ
petition is not maintainable before this Court on
account of lack of territorial jurisdiction."
37. The question of territorial jurisdiction also came for
consideration in the case of Kusum Ingots & Alloys Ltd. vs. Union
of India and Another, reported in (2004) 6 SCC, 254. The
background fact of that case was the petitioner-Company was
registered under the Companies Act, having its registered office at
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
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Mumbai, took a loan from the Bhopal Branch of State Bank of India.
The Bank issued a notice for repayment of the said loan from Bhopal
purported to be in terms of the provisions of Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (SARFAESI Act ). The jurisdiction of Delhi High
Court on the ground of lack of territorial jurisdiction came for
consideration. The Hon'ble Supreme Court held that Cause of action
implies a right to sue. The material facts which are imperative for
the suitor to allege and prove constitute the cause of action. Cause of
action has not been defined in any statute. It has, however, been
judicially 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. In Contrast, it would mean
that everything which, if not proved, gives the defendant an
immediate right to judgment, would be part of cause of action for
every action, there has to be a cause of action, if not, the plaint or the
writ petition, as the case may be, shall be rejected summarily. The
Hon'ble Supreme Court has rejected the argument that the
SARFAESI Act has been legislated by the Parliament at Delhi and
that would create a cause of action to the Delhi High Court to
entertain the application and held that passing of legislation does not
confer any such right to file a writ application unless a cause of
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action arises thereof. The Hon'ble Supreme Court also held that
there is distinction between the legislation and executive action, it
should be kept in mind while determining the said question and
finally held that Khajoor Singh's case (supra) is no applicability.
38. It will be relevant to quote paragraph No.27 of the said
judgment, which reads as under:-
"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 authority is constituted at another, a writ
petition would be maintainable at both the places. In
other words 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."
39. In the case of National Textile Corporation vs. Hari
Box Swalram reported in 2004 (9) SCC 786, there the Court said,
mere the fact that the writ petitioner carries on business at Calcutta
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or that the reply to the correspondence made by it was received at
Calcutta is not an integral part of the cause of action and the
Calcutta High Court had no jurisdiction to entertain the writ
petition.
40. In Om Prakash Srivastava vs. Union of India and
Another, reported in (2006) 6 SCC 207, the meaning of cause of
action as well as the jurisdiction of High Court in connection with
territorial jurisdiction came for consideration. The Hon'ble Supreme
Court held that 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, a bundle
of facts, which it is necessary for the plaintiff to prove in order to
succeed in the suit.
41. It will be relevant to quote paragraph Nos.8,12 and 17 of
the judgment, which read as under:-
8. Two clauses of Article 226 of the Constitution on
plain reading give clear indication that the High Court
can exercise power to issue direction, order 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
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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. (See ONGC v.
Utpal Kumar Basu)
12. The expression "cause of action" has acquired a
judicially settled meaning. In the restricted sense "cause
of action" means the circumstances forming the
infraction of the right or the immediate occasion for the
reaction. In the wider sense, it means the necessary
conditions for the maintenance of the suit, including not
only the infraction of the right, but also the infraction
coupled with the right itself. Compendiously, as noted
above the expression means every fact, which it would
be necessary for the plaintiff to prove, if traversed, in
order to support his right to the judgment of the Court.
Every fact, which is necessary to be proved, as
distinguished from every piece of evidence, which is
necessary to prove each fact, comprises in "cause of
action". (See Rajasthan High Court Advocates' Assn. v.
Union of India).
17. It would be appropriate to quote para 61 of the said
judgment, which reads as follows:- (Mohd. Khalil Khan
v. Mahbub Ali Mian, (AIR 1949 P.C.,78)
"61.(1) The correct test in cases falling under
Order 2 Rule 2, is „whether the claim in the new
suit is in fact founded upon a cause of action
distinct from that which was the foundation of the
former suit‟ (Moonshee Buzloor Fuheer v.
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Shumroonnissa Begum).
(2) The cause of action means every fact which
will be necessary for the plaintiff to prove it
traversed to order to support his right to the
judgment (Real v. Brown ).
(3) If the evidence to support the two claims is
different. (Brunsoon v. Nurnphroy)
(4) The causes of action in the two suits may be
considered to be away if in substance they are
identical (Brunsoon v, Numphroy).
(5) The cause of action has no relation whether to
the defence that may be act up by the defendant
nor does it depend upon the character of the relief
prayed for the plaintiff. It refers... to media upon
which the plaintiff sake the Court to arrive at a
conclusion in his favour. (Chand Kour v. Pratap
Singh). This observation was made by Lord
Watson in a case under Section 43 of the Act of
1882 (corresponding to Order 2, Rule 2) where
plaintiff made various claim in the same suit." (IA
pp.139-40)".
42. The same issue came up for consideration in Alchemist
Ltd. and Another vs. State Bank of Sikkim and Others, reported in
(2007) 11 SCC 335. The brief facts of that case was that the
petitioner-company having its registered Office at Chandigarh. The
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State Bank of Sikkim was desirous of disinvesting 49% of its equity
capital to a strategic partner with transfer of management issued an
advertisement in Economic Times, invited offers for strategic
partnership. It was stipulated in the advertisement that offer made
by the parties would be subject matter of scrutiny by the Board of
Directors of the first respondent-bank and also made clear that right
to accept or reject the offer without assigning any reason was
reserved by the Board of Directors. Alchemist Limited-petitioner
also sent his proposal, the Director of the Bank visited Chandigarh
for further negotiations. The Bank asked the Appellant to deposit a
sum of Rs. 4.50 crores with the State Bank of India in a fixed
deposit to show it's bona fide. The company deposited the amount
and ultimately the letter was sent to the appellant-company, which
was communicated at Chandigarh, by which the respondent-bank
informed the appellant-company that the Government of Sikkim
had not approved the proposal submitted by the appellant-company
and sought to withdraw the communication dated 20.2.2014. The
writ was filed at Punjab and Haryana High Court by which action of
Bank was challenged. The question was raised that Punjab and
Haryana High Court has no territorial jurisdiction to examine the
matter. The Hon'ble Court did not interfere with the order and
rejected the appeal. The Court has defined the meaning of "cause of
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
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action" and held that the writ will not be maintainable. This
Hon'ble Court considered the parameters and essential element of
cause of action. The test would be whether a particular fact or facts
or substance can be said to be material, integral or essential part of
the lis between the parties. If it is, it forms cause of action or part of
cause of action. If it is not, it does not form a part of cause of action.
While deciding the issue, the substance of the matter not the form
thereof has to be considered.
43. It will be relevant to quote paragraph Nos. 20, 21, 25,
35, 36, 37 and 38 of the said judgment:-
"20. It may be stated that the expression 'cause of
action' has neither been defined in the Constitution nor
in the Code of Civil Procedure, 1908. It may, however,
be described as a bundle of essential facts necessary
for the plaintiff to prove before he can succeed. Failure
to prove such facts would give the defendant a right to
judgment in his favour. Cause of action thus gives
occasion for and forms the foundation of the suit.
21. The classic definition of the expression 'cause of
action' is found in Cooke v. Gill, wherein Lord Brett
observed:
"'Cause of action' means every fact which it would
be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of the
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court".
25. The learned counsel for the respondents referred to
several decisions of this Court and submitted that
whether a particular fact constitutes a cause of action
or not must be decided on the basis of the facts and
circumstances of each case. In our judgment, the test is
whether a particular fact(s) is (are) of substance and
can be said to be material, integral or essential part of
the lis between the parties. If it is, it forms a part of
cause of action. If it is not, it does not form a part of
cause of action. It is also well settled that in
determining the question, the substance of the matter
and not the form thereof has to be considered.
35. Negativing the contention and upholding the order
passed by the High Court, this Court ruled that passing
of a legislation by itself does not confer any such right
to file a writ petition in any Court unless a cause of
action arises therefor. The Court stated: (Kusum Ingots
Case, SCC p.261, para 20)
"20. A distinction between a legislation and
executive action should be borne in mind while
determining the said question". Referring to
ONGC, it was held that all necessary facts must
form an 'integral part' of the cause of action. The
fact which is neither material nor essential nor
integral part of the cause of action would not
constitute a part of cause of action within the
meaning of Clause (2) of Article 226 of the
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
46/56
Constitution.
36. In National Textile Corporation. Ltd. v. Haribox
Swalram, referring to earlier cases, this Court stated
that: (SCC p.797, para 12.1)
"12.1...the mere fact that the writ petitioner
carries on business at Calcutta or that the reply to
the correspondence made by it was received at
Calcutta is not an integral part of the cause of
action and, therefore, the Calcutta High Court had
no jurisdiction to entertain the writ petition and
the view to the contrary taken by the Division
Bench cannot be sustained."
37. From the aforesaid discussion and keeping in view
the ratio laid down in catena of decisions by this Court,
it is clear that for the purpose of deciding whether facts
averred by the petitioner-appellant, would or would not
constitute a part of cause of action, one has to consider
whether such fact constitutes a material, essential, or
integral part of the cause of action. It is no doubt true
that even if a small fraction of the cause of action arises
within the jurisdiction of the Court, the Court would
have territorial jurisdiction to entertain the suit/petition.
Nevertheless it must be a 'part of cause of action',
nothing less than that.
38 In the present case, the facts which have been
pleaded by the Appellant Company, in our judgment,
cannot be said to be essential, integral or material
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
47/56
facts so as to constitute a part of 'cause of action'
within the meaning of Article 226(2) of the
Constitution. The High Court, in our opinion,
therefore, was not wrong in dismissing the petition."
44. The case of Amar Kumar Choubey vs. The Union of
India & Ors., reported in 2009(1) PLJR, 553, came up for
consideration before this Court. In that case, the petitioner
appointed in Assam Rifles and received gun shot injury in an
ambush. He was placed in the medical category by the Medical
Officer and when Unit was deployed at Nagaland on compassionate
grounds he was kept at the rear which was in the Jorhat to ensure
his periodical access to medical facilities at 5 Air Force Hospital,
Jorhat. When the Unit went to Manipur he approached authority for
invalidation, accordingly, he was given invalidated pension. He was
resident of a village in the district of Saran and finally he settled
there. He claimed for payment of disability pension, which was
rejected and the same was communicated to him. Against the said
order, the petitioner approached this Court; here the point of
territorial jurisdiction was taken in to consideration. This Court held
that mere service of notice or a communication is neither an integral
fact much less material fact forming part of cause of action.
Patna High Court CWJC No.2998 of 2013 dt.17-05-2016
48/56
45. It will be relevant to quote paragraph No.19 of the said
judgment, which reads as under:-
"19. The submission advanced on behalf of the
learned Counsel for the appellant/writ petitioner that
as the order rejecting the request of the petitioner for
grant of disability pension was served on the
appellant/writ petitioner within the territorial
jurisdiction of this Court, a part of cause of action had
arisen within the meaning of Article 226 (2) of the
Constitution of India so as to maintain writ application
filed by the appellant/writ petitioner is only to be
noticed for its being rejected. Mere service of notice or
a communication is neither an integral fact much less
material fact forming part of cause of action. In the
present case, when the appellant/writ petitioner had
sustained injuries in the State of Manipur and was
subsequently retained in service for next 13 years in
the State of Assam (at Jorhat), his claim for disability
pension in terms of Rules arose and get extinguished
within a period of five years in terms of Rule 6 of the
Rules in the State of Assam itself. That being so, if the
appellant/writ petitioner after he opted out of service
with his invalid pension as per his own request w.e.f.
1.12.2004in terms of Rule 38 of C.C.S.(Pension) Rules, his wholly belated and impersible request for grant of disability pension in the year 2005 and its rejection by the Colonel, Assam Rifles, the competent authority of the Director General of Assam Rifles having its Headquarter at Shilong in the State of Patna High Court CWJC No.2998 of 2013 dt.17-05-2016 49/56 Meghalaya by his order dated 10.11.2005 did not furnish any part of cause of action for maintaining a writ application before this Court merely because the said order dated 14.11.2005 rejecting his request for grant of disability pension was communicated to the appellant/writ petitioner at his permanent village home address in the district of Saran of the State of Bihar..."
46. In Rajendran Chingaravelu vs. R.K. Mishra, Additional Commissioner of Income Tax and Others, reported in (2010) 1 SCC 457, the question of territorial jurisdiction of the Hydrabad High Court came for consideration. In that case, the petitioner- Rajendran was traveling by air from Hyderabad to Chennai. The security personal of Hyderabad Airport checked the baggage that he was carrying, heavy amount of cash with the bank certificate and was allowed to board on the aircraft. But when the craft landed Chennai Airport, the Income Tax Officer intercepted and seized the amount which the petitioner was carrying and ultimately the income tax authority did not find any material of illegal transportation of money. There the Court has held that part of cause of action has taken place within the territorial jurisdiction of the Hyderabad High Court as the Income tax proceeding was initiated which was challenged in the writ petition were also initiated at Hyderabad.
47. It will be relevant to quote Paragraph Nos. 10 and 11 of Patna High Court CWJC No.2998 of 2013 dt.17-05-2016 50/56 the said judgment, which read as under:-
"10. In this case, the genesis for the entire episode of search, seizure and detention was the action of the security/ intelligence officials at Hyderabad Airport (in Andhra Pradesh) who having inspected the cash carried by him, alerted their counterparts at the Chennai Airport that appellant was carrying a huge sum of money, and required to be intercepted and questioned. A part of the cause of action therefore clearly arose in Hyderabad. It is also to be noticed that the consequential income tax proceedings against him, which he challenged in the writ petition, were also initiated at Hyderabad. Therefore, his writ petition ought not to have been rejected on the ground of want of jurisdiction.
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 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 Patna High Court CWJC No.2998 of 2013 dt.17-05-2016 51/56 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/concerned officers to acknowledge that he was unnecessarily harassed."
48. The petitioner has placed heavy reliance on the judgment of Naval Kishore Sharma vs. Union of India & Ors. reported in 2014 (4) P.L.J.R, 227 (S.C.), there the Court has rejected the writ application on the ground of having no territorial jurisdiction. There the primary question was that Naval Kishore Sharma has joined the Offshore Department of the Shipping Corporation of India was transferred from the Offshore duty to a main fleet in the Foreign Going Deparmtent. In the year, 2009, was found to be medically fit by the marine Medical Services Board. An agreement dated 29.09.2009 known as Articles of Agreement for employment of Seafarers was executed by the appellant's offshore duty. In the year 2010 he reported to be sick. He was sent for medical treatment at Adani Mundra Port. The Medical Officer advised him for admission in the hospital. Thereafter, he was declared medically unfit for sea Patna High Court CWJC No.2998 of 2013 dt.17-05-2016 52/56 service due to dilated cardiomyopathy (heart muscle disease). The Government of India issued an order dated 12.04.2011 and cancelled the registration of the appellant as seamen. After relieved from service, he shifted at his native place, Gaya, and sent several letters/ representations from there to the respondent for financial claim as per the statutory provision and terms of contract. On the disability compensation claim, the Corporation communicated letter dated 07.10.2012, informing that since the appellant was declared unfit for sea service due to heart problem he will be entitled to Rs. 2,75,000/- which was not accepted by the petitioner-Naval Kishore Sharma and he approached the Patna High Court in writ application, claiming basically for 100% and back damages. At the time of hearing the maintainability of writ petition with respect to territorial jurisdiction of this Court came for consideration. This Court held that as no cause of action or part thereof took plea within the jurisdiction of this Court, the writ petition was held not maintainable, which was challenged before the Hon'ble Supreme Court. The Hon'ble Supreme Court held the answer to the question whether the service of notice was an integral part of cause within the meaning of article 226 (2) of the Constitution of India must depend upon the nature of the order giving rise to a cause of action. The Court also said that every fact pleaded by the petitioner in their Patna High Court CWJC No.2998 of 2013 dt.17-05-2016 53/56 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 no bearing with the lis or dispute involved in the case does not give rise to cause of action so as to confer the territorial jurisdiction on the Court concerned. The Hon'ble Supreme Court also held that even fraction of cause of action gives the territorial jurisdiction of the High Court and held that the Patna High Court has no jurisdiction to entertain the writ application for the reasons mentioned in Paragraph No. 20 and 21 of the said judgment.
49. It will be relevant to quote Paragraph No. 20 & 21 of the said judgment, which are as follows:-
"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 Patna High Court CWJC No.2998 of 2013 dt.17-05-2016 54/56 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 Patna High Court CWJC No.2998 of 2013 dt.17-05-2016 55/56 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. "
50. In view of the aforesaid proposition of law mentioned hereinabove, if that proposition is applied to the present case it appears from the fact that Staff Selection Commission, Banglore, issued an advertisement prescribing the qualification, the notification was also published in the State of Bihar. The petitioner applied for the post, annexing his caste certificate. Accordingly, preliminary test was conducted at Allahabad and after clearing preliminary test, the petitioner appeared in the final written test, Patna High Court CWJC No.2998 of 2013 dt.17-05-2016 56/56 which was conducted at Lukhnow. As the petitioner did not produce his proper caste certificate, he was communicated his that he was not selected. In such view of the matter, all the action can be said integral part of cause of action or part thereof has not been taken place in the State of Bihar. Either it has taken place in the State of Karnataka from where the Notification was published or in the state of U.P. where the petitioner has appeared either in the preliminary test or in the final written test. Mere service of notice does not create any cause of action or any fraction cause of action with this Court to entertain this petition.
51. In such view of the matter, this Court finds that it has no territorial jurisdiction to entertain the present writ petition. Accordingly, this petition is dismissed. However, liberty is given to the petitioner that he may approach to the appropriate High Court for redressal of his grievance.
52. With the aforesaid observations and this petition is dismissed.
(Shivaji Pandey, J) pawan/-
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