Desiya Makkal Sakthi Katchi vs Union Of India on 9 August, 2019

[Cites 19, Cited by 0]

Madras High Court

Desiya Makkal Sakthi Katchi vs Union Of India on 9 August, 2019

(1) The petitioner claims that he is the President of Desiya Makkal Sakthi Katchi, which is a registered Political Party having Registration No.56/89/2015/PPS-I/293 and he is also a practicing Advocate and a social activist.

(2)The petitioner, filing this writ petition, styled as a Public Interest Litigation, praying for issuance of a writ of declaration, declaring the Jammu and Kashmir Reorganization Act, 2019, published in the Gazette of India, Extraordinary, Part-II, Section-I, bearing No.53 dated 09.08.2019, as unconstitutional and null and void. (3)The writ petition was filed on 14.08.2019 and the Registry, after perusing the prayer, has raised certain objections and returned the papers. The learned counsel for the petitioner had represented the case papers and once again, the Registry had returned the papers seeking further clarification and it is relevant to extract the same:-

''It may be stated as to how the Writ petition is maintainable under Territorial Jurisdiction seeking relief of other States [i.e] Jammu and Kashmir before this Court. It may be clarified as to how the subject matter relief sought therein regarding the Spl.Status of Article 370 Constitution of India will come under the purview of Article 226 of the Constitution of India.'' http://www.judis.nic.in 2/14 W.P.SR.No.104865 of 2019 (4)The learned counsel for the petitioner has once again represented the papers with the following endorsement:-

''The subject matter of the Writ Petition is challenging the Jammu and Kashmir Re-

organisation Act, 2019 passed by the Central Government and therefore, the Writ Petition is nothing to do with Article 370 of the Constitution of India and we have clarified and hence, it may be numbered at the earliest.'' (5)The Registry, still expressing doubt as to the maintainability of the writ petition, especially with regard to the territorial jurisdiction, has submitted a Note for maintainability and accordingly, it was directed to be listed for maintainability.

(6)Mr.K.Sakthivel, learned counsel for the petitioner has traced the history of Jammu and Kashmir especially after independence and would submit that the Union of India has abrogated Articles 370 and 35A by way of Presidential Order and also enacted the Jammu and Kashmir Reorganization Act, 2019 without the approval of the Jammu and Kashmir State Assembly and thereby, reduced the said State into two Union Territories. It is the further submission of the learned counsel for the petitioner that since it has been done by an Act of Parliament, the petitioner expresses apprehension some analogy will be adopted by the Union of India in respect of other States also and the abrogation of Articles 370 and 37A and enactment of Jammu and Kashmir http://www.judis.nic.in 3/14 W.P.SR.No.104865 of 2019 Reorganization Act, 2019, has been done without constitutional authority and thereby, impinging upon Federalism and also subrogating the basic feature of the Constitution of India.

(7)The learned counsel for the petitioner, insofar as the objection raised by the Registry as to the territorial jurisdiction of this Court to entertain the writ petition with the prayer, has placed reliance upon two decisions of the Hon'ble Supreme Court of India reported in [1]CDJ 1994 SC 324 [Oil and Natural Gas Commission V. Utpal Kumar Basu and Others] and [2] AIR 2004 SC 2321 [Kusum Ingots and Alloys Limited Vs. Union of India and Others].

(8)In sum and substance, it is the submission of the learned counsel for the petitioner that since the way in which abrogation of the two Articles have been done and the enactment of Jammu and Kashmir Reorganization Act, 2019, in utter disregard and violation of basic feature / structure of the Constitution, the writ petitioner, being a citizen of this Country, is entitled to challenge the same and prays for entertainment of the writ petition.

(9)This Court paid its best attention to the submissions made by the learned counsel for the petitioner and also perused the materials placed before it.

(10)The Ministry of Home Affairs [Department of Jammu and Kashmir Affairs] has issued a Gazette Notification dated 09.08.2019 in the http://www.judis.nic.in Gazette of India [Extraordinary] bearing No.2630 and as per the said 4/14 W.P.SR.No.104865 of 2019 Notification, the Central Government, in exercise of powers conferred by Clause [a] of Section 2 of the Jammu and Kashmir Reorganization Act, 2019, appointed the 31st day of October 2019 as the Appointed Day for the purpose of Jammu and Kashmir Reorganization Act, 2019, [Act 34 of 2019]. The said Act had also received the assent of the Hon'ble President on 09.08.2019.

(11)It is relevant to extract Article 226 [1] and [2] of the Constitution of India:-

Article 226[1]:- 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 enforcement of any of the rights conferred by Part III and for any other purpose.

Article 226[2]:- The powers 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 Government or authority or the residence of such person is not within those territories. http://www.judis.nic.in 5/14 W.P.SR.No.104865 of 2019 (12)The phraseology used in section 20[c] of the Code of Civil Procedure, 1908 and clause [2] of Article 226 of the Constitution of India, is pari materia and in the light of the decisions of the Hon'ble Supreme Court of India reported in 2007 [213] ELT 323 [SC] [Ambica Industries Vs.Commissioner of Central Excise] ; AIR 2002 SC 2321 : 2004 [6] SCC 252 [Kusum Ingots and Alloys Limited], the interpretation of Section 20[c] of the Code of Civil Procedure, 1908, would apply to writ proceedings.

(13)The High Court, in order to exercise its jurisdiction to entertain a writ petition, derive a satisfaction from the entire facts pleaded in support of the cause of action. The facts constitute a cause, so as to enable the Court to decide a lis at least in part, arisen within its jurisdiction. [Union of India and others Vs. Adani Exports Limited and Others – 2001 [134] ELT 596 [SC] : Manu/SC/0306/2004 : AIR 2004 SC 1998]. (14)As regards conferment of territorial jurisdiction, the facts which have no bearing on the litigation or dispute involved in a case do not give rise to a cause of action – Union of India Vs. Adani Exports Limited ; National Textiles Corporation Limited reported in AIR 2004 SC 1998. (15)It is a well settled position of law that the question whether a cause of action arose wholly or partly within the territorial jurisdiction of a High Court, must be decided only on the basis of the pleadings. The High Court, while determining the objection as to the lack of territorial http://www.judis.nic.in 6/14 W.P.SR.No.104865 of 2019 jurisdiction, must take into account, all the facts pleaded in support of the cause of action, without going into the question as to the correctness or otherwise of the said facts.

(16)The decision relied on by the learned counsel for the petitioner reported in CDJ 1994 SC 324 [Oil and Natural Gas Commission V. Utpal Kumar Basu and others], dealt with the issue relating to territorial jurisdiction under Articles 226 and 227 of the Constitution of India read with section 21 of the Code of Civil Procedure, 1908 and it is relevant to extract paragraph No.6 of the said judgment:-

''6.......Therefore, in determining the objection of lack of territorial jurisdiction the Court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words, the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court.'' (17)In Kusum Ingots and Alloys Limited Case [cited supra], the question that arose for consideration was ''whether the seat of Parliament or Legislature of a State would be a relevant factor for determining the http://www.judis.nic.in 7/14 W.P.SR.No.104865 of 2019 territorial jurisdiction of a High Court to entertain a writ petition under Article 226 of the Constitution of India?''.

(18)The facts of the said case would disclose that the appellant therein being a Company registered under the Indian Companies Act, having its registered office at Mumbai, had availed a loan from the Bhopal Branch of the State Bank of India and the 2nd respondent in the said case, issued a notice of repayment from Bhopal by invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [in short ''SARFAESI Act''] . The appellant before the Hon'ble Apex Court challenged the vires of the SARFAESI Act by filing a writ petition before the High Court of Delhi and it was dismissed on the ground of lack of territorial jurisdiction and making a challenge to the said order, Special Leave Petition was filed and it was entertained and converted as Civil Appeal. The learned counsel for the appellant therein advanced the argument that since the vires of a Parliamentary Act was in question, the High Court of Delhi had the requisite jurisdiction to entertain the writ petition and the said submission was opposed on behalf of the respondents therein by submitting that no cause of action arose within the territorial jurisdiction of the High Court of Delhi.

(19)The Hon'ble Supreme Court of India, had taken into consideration its earlier decisions and it is relevant to extract paragraphs No.16, 18, 19, http://www.judis.nic.in 21 and 23:-

8/14 W.P.SR.No.104865 of 2019

16. In Union of India and Ors. v. Adani Exports Ltd.

and Anr. MANU/SC/0696/2001 :

2001(134)ELT596(SC) it was 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.

17. .......

18. The facts pleaded in the writ petition must have a 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.

19. Passing of a legislation by itself in our opinion do not confer any such right to file a writ petition unless a cause of action arises therefore.

20. .......

21. A parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled would not determine a constitutional question in vacuum.

22. .......

23. A writ petition, however, questioning the constitutionality of a Parliamentary Act shall not be maintainable in the High Court of Delhi only because the seat of the Union of India is in Delhi. (See Abdul Kafi Khan v. Union of India and Ors., MANU/WB/0086/1979 : AIR1979Cal354 ).'' http://www.judis.nic.in 9/14 W.P.SR.No.104865 of 2019 (20)In paragraph NO.26 of the said decision, the Hon'ble Apex Court considered it's earlier decision reported in AIR 1995 SC 2148 [U.P.Rashtriya Chini Mill Adhikari Parishad, Lucknow Vs. State of U.P.] and observed that ''in fact, a Legislation, it is trite, is not confined to a statute enacted by the Parliament or Legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority.....Legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a Court only because of the situs of the office of the maker thereof.'' (21)The learned counsel for the petitioner, by placing heavy reliance upon the said decision would submit that in the light of abrogation of Article 370 and 35A by way of Presidential Order and the enactment of the Jammu and Kashmir Reorganisation Act, 2019, without approval of the Jammu and Kashmir State Assembly, the petitioner being a citizen of India, is entitled to make a challenge to the vires of the said provisions as well as the procedure adopted in doing so.

(22)It is to be noted at this juncture that in Kusum Ingots and Alloys Limited case [cited supra], the vires of SARFAESI Act was put to http://www.judis.nic.in challenge. SARFAESI Act has application throughout India except the 10/14 W.P.SR.No.104865 of 2019 State of Jammu and Kashmir at the relevant point of time. A perusal of the facts leading to the filing of the said appeal before the Apex Court would disclose that the appellant Company had registered office at Mumbai and had availed loan from the Bhopal Branch of State Bank of India [Madhya Pradesh] and the 2nd respondent therein had issued a notice calling upon the Company to repay the said loan. The Apex Court has taken into consideration the facts pleaded in the writ petition and also that a Parliamentary Legislation when receives assent of the Hon'ble President of India and published in the Official Gazette unless specifically excluded, will apply to the entire territory of India and therefore, the same would give rise to a cause of action and hence, the writ petition questioning the Constitutionality thereof can be filed in any High Court.

(23)In the considered opinion of the Court, the said decision have no application to the case on hand, especially with regard to the objection raised by the Registry of this Court on the ground of territorial jurisdiction for the reason that the abrogation of Articles 370 and 35A by way of Presidential Order and the enactment of Jammu and Kashmir Reorganisation Act, 2019 would have application only to Jammu, Kashmir and Ladakh regions and that is the distinction between the facts of the present case and the facts of the case in Kusum Ingots and Alloys Limited [cited supra].

http://www.judis.nic.in 11/14 W.P.SR.No.104865 of 2019 (24)The Hon'ble Supreme Court of India, in paragraph No.30, observed as follows:-

''30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its jurisdiction by invoking the doctrine of forum conveniens. [See Bhagar Signh Bagga V. Dewan Jagbir Sawhany, AIR 1941 Cal 670 ; Mandal Jalal V. Madanlal [1945] 49 CWN 357 :

Bharat Coking Coal Limited V. M/s.Jharia Talkies and Cold Storage Pvt Ltd., [1997] CWN 122 ;

S.S.Jain and Co and another V. Union of India and Others [1994] CHN 445 ; M/s.New Horizon Ltd., V. Union of India, AIR 1994 Delhi 126.]'' (25)The petitioner, admittedly, is not a resident of the said State and if at all, any person is aggrieved by the abrogation and enactment, could be the person who is a permanent resident of the then State of Jammu and Kashmir.

(26)It is also brought to the knowledge of this Court that similar challenge has been made before the Hon'ble Supreme Court of India and the same is pending consideration before Constitution Bench which, also started hearing the matters.

http://www.judis.nic.in 12/14 W.P.SR.No.104865 of 2019 (27)In the light of the reasons assigned above, this Court is inclined to uphold the objections raised by the Registry as to the territorial jurisdiction of this Court to entertain this writ petition. (28)In the result, WP.SR/No.104865 of 2019 is rejected for want of territorial jurisdiction. No costs.

[M.S.N., J.] [N.S.S., J.] 31.10.2019 Index : No Internet : Yes AP To

1.The Secretary Union of India Ministry of Home Affairs New Delhi.

2.The Secretary Union of India Ministry of Law and Justice New Delhi.

http://www.judis.nic.in 13/14 W.P.SR.No.104865 of 2019 M.SATHYANARAYANAN, J., and N.SESHASAYEE, J.

AP Order in W.P.SR.No.104865/2019 31.10.2019 http://www.judis.nic.in 14/14

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