Madhya Pradesh High Court
Shaikh Iliyas vs Union Of India on 21 January, 2020
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
W.P. No.25402/2019
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : HON'BLE MR. JUSTICE S.A. DHARMADHIKARI
Writ Petition No. 25402 of 2019
Shaikh Iilyas
Vs.
Union of India & Ors.
Whether reportable :- Yes /No
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For Petitioner : Shri T.C. Singhal, Advocate
For Respondents/Union : Shri Shashank Indraporkar,
of India Advocate
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ORDER
(Delivered on 21/01/2020) In this petition under Article 226 of the Constitution of India, the petitioner has challenged the communication/order dated 15/11/2019 (Annexure P/1), whereby representation submitted by the petitioner with regard to posting him in any establishment in New Delhi has been rejected.
2. The brief facts leading to filing of this case are that the petitioner was working as Constable (Personnel No.971295364) at BSF, Tekanpur. The petitioner was transferred to 195 BSF Battalion Laxmipur Gorapur (Orissa) with head quarters at Kittipalayam, Tahsil Korma Teemam Patti District- Koimbatore Tamilnadu and he joined the duty as per transfer order and he is on duty since 03/07/2019.
2 W.P. No.25402/2019Earlier the petitioner was working at BSF Tekanpur and he was advised by BSF Hospital, Tekanpur for treatment and further evaluation and management at AIIMS New Delhi. Due to transfer, the petitioner started taking treatment at BSF, Hospital 195 Battalion BSF. Thereafter the petitioner was advised to take treatment from AIIMS Bhuvnaeshwar and he took treatment at AIIMS Bhuvneshwar.
The hospital at AIIMS Bhuvneshwar referred the matter to AIIMS New Delhi with a note on the prescription memo as "Patient referred to AIIMS Delhi for further management." Since the petitioner was not able to come on each date from Laxmipur to AIIMS New Delhi as it is too far, the petitioner submitted an application to the respondent No.2 for consideration of his transfer from 195 Battalion to New Delhi or any place nearby Delhi so that he would be in a position to avail the treatment but respondent No.3 informed him vide letter dated 15/11/2019 that prayer has been rejected. Being aggrieved, the petitioner has filed the present writ petition before this Court.
3. A preliminary objection has been raised by the respondents with regard to the territorial jurisdiction of this Court on the ground that the petitioner who is working as Constable GD (Personnal No.971295364) at BSF, Tekanpur was transferred to 195 BSF Bn.
Laxmipur Gorapur (Orissa) with head quarters at Kittipalayam Tahsil-
Korma Teemam Patti, District- Koimbatore Tamilnadu. The petitioner joined the duty on 03/07/2019, therefore, he has to challenge the same before the High Court within whose territorial jurisdiction the cause of action has arisen.
3 W.P. No.25402/20194. Heard the learned counsel for the parties.
5. The Supreme Court in the case of Dinesh Chandra Gahtori vs. Chief of Army Staff and another reported in (2001) 9 SCC 525 has held as under:-
"3. The appellant filed a writ petition before the High Court at Allahabad to quash a communication sent to his wife which stated that the appellant had been tried by a Summary Court Martial and had been found guilty of using criminal force against his superior officer and awarded the sentence of dismissal from service. The High Court dismissed the writ petition at the admission stage by holding:
"In view of the fact that the summary court-martial proceedings were conducted in the State of Punjab and orders were also passed in Punjab by the West Command, we are of the view that this Court has got no territorial jurisdiction to entertain this writ petition."
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."
6. A coordinate Bench of this Court in the case of S.P. Tiwari Vs. UOI & Ors. reported in 2006 (II) MPJR 411 has held as under:-
"7. After hearing learned counsel for the parties on the preliminary objection, I am of the view that the preliminary objection in regard to territorial jurisdiction is devoid of any substance. In the case of Dinesh Chandra Gahtori (supra) the employee of the army staff was subjected to court martial and was awarded the sentence of dismissal from service. The High Court dismissed the writ petition at the admission stage by holding that the summary court martial proceeding were conducted in the State of Punjab and orders were also passed there and therefore the writ petition was dismissed on account of territorial jurisdiction. The decision of the High Court was assailed by Dinesh Chandra by filing petition in the Supreme Court. The Supreme 4 W.P. No.25402/2019 Court categorically held that the High Court should have taken into consideration the fact that Chief of Army Staff may be sued any where in the country and placing reliance only on the cause of action as the High Court did it was not found to be justified. The Apex Court allowed the appeal by setting aside the order of the High Court and directed the High Court to decide the petition on its own merit. The said decision of the Apex Court Dinesh Chandra Gahtori (supra) was placed reliance by the division bench of this court in the case of Ram Narain Singh (supra). In the present case also the impugned order Annexure P/3 was passed and served to the petitioner in Punjab, but, the important fact which cannot be marginalized and blinked away is that the Chief of the Army Staff can be sued anywhere in the country as held by the Supreme Court in the case of Dinesh Chandra (supra). On these premised reasons and by following the decision of Supreme Court in the case of Dinesh Chandra (supra) and the Division Bench decision of this Court Ram Narain Singh (supra), and preliminary objection in regard to the maintainability of this writ petition on the ground of territorial jurisdiction cannot be accepted and the same is hereby overruled and this petition is held to be maintainable."
7. The Division Bench of this Court in the case of Ram Narain Singh v. Chief of Army Staff and others reported in 2002 (2) JLJ 86 has held that the High Court having territorial jurisdiction over the place at which the decision on appeal is communicated to the petitioner, will have the jurisdiction.
8. From the plain reading of all above judgments, it is clear that the orders of dismissal were challenged by the persons concerned. In none of the petitions, none of the orders, which was passed during the service period of the persons concerned, was under challenge. The same are therefore distinguishable. Furthermore, in the present case it 5 W.P. No.25402/2019 is not the claim of the petitioner that the impugned order was communicated to him at Gwalior, on the contrary, undisputedly the impugned order was communicated to the petitioner at a place falling within the territorial jurisdiction of State of West Bengal.
9. The words "cause of action" have not been defined, however, the words "cause of action" have been defined in Mulla's Code of Civil Procedure and approved by the Supreme Court in the case of State of Rajasthan Vs. Swaika Properties and another reported in (1985) 3 SCC 217, which reads as under:-
"8. The expression "cause of action" is tersely defined in Mulla's Code of Civil Procedure:
"The 'cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court."
In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. 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 6 W.P. No.25402/2019 Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department, Jaipur under Section 52(2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution, the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench, where the cause of action wholly or in part arose.
9. It is to be deeply regretted that despite a series of decisions of this Court deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking, the learned Single Judge should have passed the impugned ad interim ex parte prohibitory order the effect of which, as the learned Attorney General rightly complains, was virtually to bring to a standstill a development scheme of the Urban Improvement Trust, Jaipur viz. Civil Lines Extension Scheme, irrespective of the fact whether or not the High Court Court had any territorial jurisdiction to entertain a petition under Article 226 of the Constitution. Such arbitrary exercise of power by the High Court at the public expense reacts against the development and prosperity of the country and is clearly detrimental to the national interest."
10. Article 226 of the Constitution of India confers the power upon the High Court to issue directions etc. in relation to the territories within which the cause of action wholly or in part arises for the exercise of such power.
11. The coordinate Bench of this court in the case of Prem Prakash Ambedkar vs. Union of India reported in 2001 (1) MPHT 7 W.P. No.25402/2019 176 has held as under:-
"12. From this passage it is clear that the cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a Court of law. From the above referred judgment it would clearly appear that unless the cause of action wholly or in part or an action which is an integral part of the cause of action comes into play within the territories of a particular Court, the said Court would have no jurisdiction. The petitioner has placed his reliance on a judgment of Sikkim High Court in the matter of Brg. Kanwar Kuldip Singh Vs. Union of India and others, (1996) Vol. 2 All Indian Services Law Journal 72, to say that if a decision is conveyed to a particular person at the place of his residence, then the Court within whose jurisdiction such person resides would have the jurisdiction to entertain the lis. The case of M/s. Swaika Properties was taken into consideration in the said matter. Without being disrespectful to the Hon'ble Judge who decided the case in the matter of Brg. Kanwar Kuldip Singh (supra), I am bound to say that the judgment proceeded on certain wrong assumptions and mis-reading of the Supreme Court judgment in the matter of M/s. Swaika Properties. The Hon'ble Judge observed in the said case that the question of jurisdiction came up incidentally and the main point involved in the case was otherwise. It was also observed that the decision of the Hon'ble Apex Court made scattering remarks about the tendency of the Calcutta High Court to take up and pass ex party prohibitory orders in the matters which do not strictly fall within its territorial jurisdiction. The learned Judge lastly observed that the Apex Court did not strictly hold that service of notice would never give rise to cause of action. A fair reading of the judgment of the Supreme Court in the matter of Swaika Properties Ltd., would show that against the entertainment of the petition and grant of ad- interim writ by Calcutta High Court, the State of Rajasthan felt aggrieved. The contention of the State Govt. before the Supreme Court was that the Calcutta Court had no jurisdiction. The question of jurisdiction did not come up incidentally, but in fact that was the sole issue before the Supreme Court. In the matter of Swaika Properties, the Supreme Court clearly observed that the Calcutta 8 W.P. No.25402/2019 Court had no jurisdiction and if the petitioner (M/s. Swaika Properties) felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Govt. of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution of India, the remedy of the respondents (M/s. Swaika Properties) for grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench where the cause of action wholly or in part arose. I am unable to concede to the judgment of the Sikkim High Court in the matter of Brg. Kanwar Kuldip Singh.
13. ..........So far as the petitioner's residence is concerned, it would always depend upon his own choice. He may settle in any part of India, but his settlement would not clothe such Court within whose jurisdiction he is residing any territorial jurisdiction. It is only that the Court, where the cause of action either in whole or in part arises, would have the jurisdiction to hear and decide a lis."
(Emphasis Supplied)
12. The Supreme Court in the case of Oil and Natural Gas Commission vs. Utpal Kumar Basu reported in 1994 (4) SCC 711 has held as under:-
"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."
Therefore, in determining the objection of lack of 9 W.P. No.25402/2019 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.
7. XXXXX
8. From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO, it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently. When it learnt that it was considered ineligible it sent representations, including fax messages, to EIL, ONGC, etc., at New Delhi, demanding justice. As stated earlier, the Steering Committee finally rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi on 27-1-1993. Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or 10 W.P. No.25402/2019 not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court."
13. The Supreme Court in the case of M/s Kusum Ingots & Alloys Ltd. vs. Union of India and another reported in 2004 (6) SCC 254 has held as under:-
"25. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (See Bhagar Singh Bagga v. Dewan Jagbir Sawhany, AIR 1941 Calcutta; Mandal Jalan v. Madanlal, (1945) 49 CWN 357; Bharat Coking Coal Limited v. M/s Jharia Talkies & Cold Storage Pvt. Ltd., 1997 CWN 122; S.S.Jain & Co. & another v. Union of India & others, 1994 (1) CHN 445 and M/s. New Horizon Ltd. v. Union of India, AIR 1994 Delhi 126)."
14. The Supreme Court in the case of Nawal Kishore Sharma vs. Union of India and Others reported in (2014) 9 SCC 329 has held as under:-
11 W.P. No.25402/2019"17. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscle disease). As a result, the Shipping Department of the Government of India issued an Order on 12-4-2011 cancelling the registration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability compensation. The said representation was replied by the respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the district of Gaya, Bihar and, thereafter, he made all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, the appellant was suffering from serious heart muscle disease (dilated cardiomyopathy) and breathing problem which forced him to stay in his native place, wherefrom he had been making all correspondence with regard to his disability compensation. 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."
15. The Jammu and Kashmir High Court in the case of Jaswant Singh Vs. UOI and Ors. reported in 2017 LIC 2996 has held as under:-
12 W.P. No.25402/2019"15. In view of the pleadings of the parties and the uncontroverted stand taken by the respondents in their objection, it is evident that no legal right of the petitioner has prima facie either been infringed or threatened to be infringed by the respondents within the territorial limits of this Court's jurisdiction. The petitioner has merely filed a statutory appeal during his tenure of posting at Jammu which does not amount to infringement of legal right of the petitioner within the territorial jurisdiction of this Court. Mere posting of the petitioner at the time of filing of the petition within the territorial jurisdiction of this Court taking into account the fact that entire action taken against the petitioner which is subject matter of challenge of this petition has been taken place beyond the territorial jurisdiction of this Court would not confer any territorial jurisdiction on this Court to entertain the writ petition. The decision relied on by the learned senior counsel for the petitioner in the case of Nawal 12 Kishor Sharma Supra has no application to the fact situation of the case as the appellant in the said case was suffering from serious heart ailment which forced him to stay in the native place. Besides that, it is pertinent to mention here that the respondents responded to his representations and the same were communicated to him on his home address in Bihar. In the instant case, the representation submitted by the petitioner from the State of Jammu and Kashmir have failed to evoke any response, therefore it cannot be said that any part of the cause of action has arisen within the territorial jurisdiction of this Court. In the aforesaid context, the Supreme Court has held that part of cause of action has arisen within the jurisdiction of Patna High Court, which is not the case here.
16. In view of conclusion arrived at by this Court that no part of cause of action has arisen within the territorial jurisdiction of this Court, it is not necessary to deal with the matter on merits. In the result, the writ petition fails. Needless to state that the petitioner would be at liberty to approach the appropriate forum for redressal of his grievances.
(Emphasis Supplied)
16. Admittedly, the petitioner after being transferred from Tekanpur 13 W.P. No.25402/2019 had joined at 195 BSF Battalion Laxmipur Gorapur (Orissa) with head quarters at Kittipalayam, Tahsil Korma Teemam Patti District-
Koimbatore Tamilnadu. Needless to reiterate that it is not the claim of the petitioner that impugned order was communicated to him at Gwalior. No part of cause of action has arisen within the territorial jurisdiction of this Court, as such, this Court has no territorial jurisdiction to entertain the writ petition. However, the petitioner may ventilate his grievances before the High Court which is having jurisdiction i.e. Orissa High Court and not this Court, if occasion arises.
17. Resultantly, this petition fails and is hereby dismissed on the ground of lack of territorial jurisdiction. The petitioner is at liberty to ventilate his grievance before the appropriate forum.
(S.A. Dharmadhikari) Judge (21/01/2020) rahul RAHUL SINGH PARIHAR 2020.01.21 17:52:22 +05'30'