Calcutta High Court (Appellete Side)
Ashish Bose vs The Union Of India & Ors on 8 September, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr Justice Jayanta Kumar Biswas
W.P.No.14687(W) of 2011
Ashish Bose
-vs-
The Union of India & Ors.
Mr. Kishore Dutta
Mr. Indranil Roy
Mr. Aniket Mitra ....for the petitioner
Mr. Faarook M. Razzak, Addl. Solicitor-General of India
Ms. Chandrika Joshi
Mr. Subir Pal ...for the Union of India
Mr. Himanshu De
Mr. Mrityunjoy Chatterjee ...for the CBI
Heard on : September 8, 2011
Judgment on : September 8, 2011
The Court : The petitioner in this art.226 petition dated August 18, 2011 is
questioning an order impounding his passport communicated by a letter of the
Superintendent (Policy), Regional Passport Office, Delhi dated February 15, 2011 (at p.75).
The passport authority passing the impounding order previously issued a notice
dated August 5, 2010 (at p.58) asking the petitioner to show cause why his passport
should not be impounded under s.10(3)(e) of the Passports Act, 1967, and offering him an
opportunity of hearing. In response to the notice though the petitioner showed cause in
writing on August 21, 2010 (at p.59), he chose not to utilise the opportunity of personal
hearing.
2
Mr Razzak, the Additional Solicitor-General of India, appearing for the Union of
India has raised the question of territorial jurisdiction of this Court to entertain the
petition. Mr De appearing for the Central Bureau of Investigation has also taken the
question of territorial jurisdiction of this Court to entertain the petition.
Mr Dutta appearing for the petitioner has said that the relevant case has been
stated in para.41 of the petition. The para. is quoted below:
"41. The passport of the petitioner was kept under seizure with the respondent no. 3
within the jurisdiction of this Hon'ble Court which was subsequently illegally forwarded to the office of the respondent no. 2 and a such this Hon'ble Court has the requisite territorial jurisdiction to entertain the instant writ petition."
Mr Dutta has submitted that in para.15 of the petition the petitioner has said that on January 5, 2011 the Superintendent of Police, CBI, SPE: ACB, Kolkata (the third respondent) filed an application before the 3rd Special Judge (CBI), Kolkata for a further order in connection with a previous order of the Court dated December 18, 2010; and that in the application it was stated that the CBI had already forwarded the seized passport to the Regional Passport Office, Delhi, with a request for its revocation or impounding under s.10(3) of the Passports Act, 1967.
Referring to the case stated in para.15, Mr Dutta has submitted that since the fact of sending of the passport by the Superintendent of CBI from Kolkata to the Regional Passport Office in Delhi is an integral part of the bundle of facts forming the cause of action, and the sending took place in Kolkata, a place within the territories in relation to which this Court exercises jurisdiction under art.226, questioning the impounding order the petitioner is entitled to move this Court under art.226.
Mr Razzak and Mr De have disputed the correctness of the contention saying that the fact of sending of the passport by the Superintendent of CBI from Kolkata to the Regional Passport Office in Delhi for taking action under s.10(3) of the Passports Act, 1967 3 cannot be considered an integral part of the cause of action that is in the impounding order whose making process has nothing to do with the passport sending part by the CBI.
The following facts are undisputed. The passport authority issued the show cause notice dated August 5, 2010 from his office in Delhi. It was served on the petitioner in Delhi. He submitted show cause in writing from Delhi to the authority in Delhi. The authority offered him opportunity of hearing in Delhi. He could utilise it in Delhi. The order was issued in Delhi. It was served on him in Delhi.
The case of the petitioner is that the fact of sending of the passport (according to him the sending was illegal), by the Superintendent of CBI from Kolkata to the Regional Passport Office in Delhi for taking action under s.10(3) of the Passports Act, 1967 is an integral part of the cause of action. It is not disputed that the cause of action is in the s.10(3) order of the passport authority impounding the passport.
The question whether the fact of sending of the passport by the Superintendent of CBI from Kolkata is an integral part of the cause of action is to be determined by applying the test whether for questioning the impounding order it is necessary to plead and prove that the sending of the passport from Kolkata to Delhi was illegal, in other words, whether the sending, if found illegal, will affect the validity of the s.10(3) impounding order.
In a decision dated July 16 & 20, 2009 in W.P.No. 7030(W) of 2007 (Heiza Boilers (I) Pvt. Ltd. & Anr. v. Union of India, Ministry of Commerce & Industry, New Delhi & Ors.), I held as follows:
"Facts which have no bearing on the lis or the dispute involved in the case do not give rise to a cause of action so as to confer territorial jurisdiction on a court. What is to be seen is whether a particular fact is 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 the cause of action. If it is not, it does not form a part of the cause of action. In determining the question the substance of the matter, and not the form thereof, is to be considered. The answer to the question whether the service of a notice is an integral part of the cause of action within the meaning of art.226(2) must depend upon the nature 4 of the impugned order or action giving rise to the cause of action, and the test to ascertain this is whether for questioning the order or action it is necessary to plead the fact of service of the notice in the writ petition and prove it. Only those facts without the proof of which the action must fail are material and essential facts in the bundle of facts constituting the cause of action. Hence a fact without the proof of which a writ petition will not fail is not an integral part of the cause of action, and, accordingly, it cannot be said that a part of the cause of action has arisen at the place where the event concerning the fact has happened."
In another decision dated January 19, 2011 in W.P.No. 22106(W) of 2010 (SRRAK- REIPL JV & Ors. v. Union of India & Ors.), I held as follows:
"A fact to become a part of the cause of action, essentially in an action, inaction or decision of the respondent, must be related to a prior or subsequent action, inaction or decision of the respondent forming integral part of the main action, inaction or decision and intended to affect the petitioner. No voluntary or responsive or reactive action, inaction or decision of the petitioner prior or subsequent to the action, inaction or decision of the respondent giving rise to the cause of action, can form a part of the petitioner's cause of action, for his own action, inaction or decision cannot give him a cause of action against the respondent."
Here the legality of the sending of the passport by the Superintendent of CBI from Kolkata to the passport authority in Delhi has absolutely nothing to do with the validity of the order of the authority impounding the passport. For questioning the order it is not necessary to plead and prove that the passport was illegally sent from Kolkata to Delhi. The sending had nothing to do with the decision making process under s.10(3) of the Passports Act, 1967.
Even if it is not pleaded and proved that the passport was illegally sent from Kolkata to Delhi, the petition will not fail; conversely, even if it is pleaded and proved that the passport was illegally sent from Kolkata to Delhi, that will not affect the validity of the s.10(3) order. The passport could be collected by the passport authority from any place. Legality of the process of collection cannot affect the validity of the impounding order.
I, therefore, do not see how it can be said that the fact of sending of the passport by the Superintendent of CBI from Kolkata to the passport authority in Delhi for taking action under s.10(3) of the Passports Act, 1967 can be considered an integral part of the cause of action. In my opinion, no part of the cause of action on which the petition has 5 been filed has arisen within the territories in relation to which this Court exercises jurisdiction under art.226, and hence this Court has no jurisdiction to entertain this petition.
For these reasons, I dismiss the petition saying that nothing herein shall prevent the petitioner from approaching the appropriate Court or forum seeking reliefs according to law. No costs. Certified xerox.
sb(c); ab(f) (Jayanta Kumar Biswas, J)