Kerala High Court
Dental Council Of India(Dci) vs Dr.V.Viswanath on 9 October, 2015
Author: A.M. Shaffique
Bench: Antony Dominic, Dama Seshadri Naidu, A.M. Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939
WA.No. 2306 of 2015 IN WP(C).25782/2015
-----------------------------------------
AGAINST THE ORDER IN WP(C) 25782/2015 of HIGH COURT OF KERALA DATED
09-10-2015
APPELLANT/RESPONDENT NO.2 IN WP(C):
DENTAL COUNCIL OF INDIA(DCI)
AIWAN - E -GALIB MARG, KOTLA ROAD, TEMPLE LANE,
NEW DELHI 110 002, REPRESENTED BY ITS SECRETARY.
BY ADVS.SRI.TITUS MANI VETTOM, SC, DENTAL COUNCI
SRI.PRAKASH M.P., SC, DENTAL COUNCIL OF INDIA
RESPONDENTS/PETITIONERS/RESPONDENT NO.1,3 & 4 IN WP(C):
1. DR.V.VISWANATH
F7, GOOD EARTH HERMITAGE, CHEVAYUR, CALICUT 17, KERALA
2. DR. M.RAVEENDRANATH
SPECIALITY DENTAL CLINIC, HIGHWAY ROAD, TALIPARAMBA,
PIN 670 141, KERALA STATE
3. UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HEALTH &
FAMILY WELFARE C-WING, NIRMAN BHAVAN, NEW DELHI 110 001
4. DR. DIBYENDU MAZUMDAR, PRESIDENT,
DENTAL COUNCIL OF INDIA, AIWAN E GALIB MARG, KOTLA ROAD,
TEMPLE LANE, NEW DELHI 110 002
5. NILAMBUR - PITAMBER UNIVERSITY
MEDINI NAGAR, PALAMU, JHARKAND STATE, PIN 822 101,
REPRESENTED BY ITS REGISTRAR.
R4 BY ADV. SRI.O.V.RADHAKRISHNAN (SR.)
R4 BY ADV. SMT.K.RADHAMANI AMMA
R4 BY ADV. SRI.ANTONY MUKKATH
R1-R2 BY ADV. SRI.GEORGE THOMAS (MEVADA)(SR.)
R1-R2 BY ADV. SRI.JIKKU SEBAN GEORGE
R1-R2 BY ADV. SRI.AMAL GEORGE
R3 BY ADV. SRI.R.PRASANTH KUMAR, CGC
R4 BY ADV. SRI.M.P.PRAKASH
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31-08-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ASHOK BHUSHAN, C.J. "C.R."
&
A.M. SHAFFIQUE, J.
================ W.A. No. 2306 of 2015 =============== Dated this, the 11th day of January, 2016 REFERENCE ORDER Shaffique, J.
This appeal is filed by 2nd respondent in the writ petition, the Dental Council of India (for short 'DCI') challenging order dated 9/10/2015 in WP(C) No.25782/2015 by which the learned Single Judge found that this Court is having territorial jurisdiction to entertain the writ petition. This order came to be passed when a preliminary objection was raised by DCI in a writ petition filed by respondents 1 and 2 herein. The reliefs sought for in the writ petition are as under;
(i) issue a writ in the nature of Quo Warranto or such writ, order or direction declaring that the 3rd respondent is incompetently continuing as a member of the Dental Council of India insofar as he is unlawfully elected under Section 3(d) of the Dentists Act 1948 from the 4th respondent respondent University to the Dental Council of India, inasmuch as the said University does not have any Dental Faculty in the University.
ii) Issue a writ in the nature of Quo Warranto W.A. No.2306/15 -:2:- or such writ, order or direction declaring that the 3rd respondent is incompetently continuing as the President of the Dental Council of India insofar as he has ceased to be a member of the Dental Council of India after 31.5.2015, his nomination by the West Bengal Government made on 31.05.2010 u/s 3(e) of the Dentists Act 1948 has expired by 30.05.2015 and hence lacks the basic eligibility to continue in the Dental Council of India."
2. The main contention urged by the writ petitioners was that the election of the 4th respondent herein as member of DCI and later as its President is vitiated. They have also narrated the circumstances under which the 4th respondent has no right to continue in office.
3. It was inter alia contended by DCI that no part of the cause of action had arisen within the jurisdiction of this Court as the election of the 4th respondent as a member of DCI was not held within the jurisdiction of this Court. His office is also at New Delhi and even as per the averments in the writ petition, he obtained membership from Nilamber Pitamber University situated in Jharkand State. It was contended that since the office of the DCI is at New Delhi from which place the 4th respondent functions W.A. No.2306/15 -:3:- as President of DCI, and since no part of the cause of action had arisen within the jurisdiction of this Court, this Court had no territorial jurisdiction to issue a writ of quo warranto as claimed in the writ petition.
4. Learned Single Judge however placing reliance on the judgment of this Court in Dr.Joseph Issac v. Union of India [2010 (3) KHC 265 (DB)], held that in so far as the President of DCI discharges his function in the entire nation and his wisdom and decisions would have impact on the entire country as a whole, this Court has territorial jurisdiction to entertain the writ petition. Accordingly, the preliminary objection raised by DCI was overruled.
5. While impugning the aforesaid order passed by the learned Single Judge, it was argued by Sri.Titus Mani Vettom, learned counsel appearing for DCI that merely for the reason that the functions of the President of DCI extends within the jurisdiction of this Court does not indicate that any part of the cause of action had arisen within the jurisdiction of this Court. It is argued that the seat of DCI is at New Delhi and merely for the W.A. No.2306/15 -:4:- reason that the President exercised jurisdiction all over India does not mean that a writ of quo warranto can be filed before this Court. If the President of DCI takes any action which affects any person or institution in the State, it gives a right of action as well as cause of action. Such a situation had not arisen in the case. In the case on hand, a writ of quo warranto had been filed challenging the membership and election of the 4th respondent to DCI. He also relied upon the judgment in Lt.Col.Khajoor Singh v. Union of India (AIR 1961 SC 532) wherein the Constitution Bench while considering the question whether the Government of India as such can be said to have a location in a particular place namely New Delhi irrespective of the fact that its authority extends over all the States and its officers function throughout India, held at paras 13 and 14 as under;
"13. This brings us to the first question, namely, whether the Government of India as such can be said to be located at one place, namely, New Delhi. The main argument in this connection is that the Government of India is all-pervasive and is functioning throughout the territory of India and therefore every High Court has power to issue a writ against it, as it must be presumed to be W.A. No.2306/15 -:5:- located within the territorial jurisdiction of all State High Courts. This argument in our opinion confuses the concept of location of a Government with the concept of its functioning. A Government may be functioning all over a State or all over India; but it certainly is not located all over the State or all over India. It is true that the Constitution has not provided that the seat of the Government of India will be at New Delhi. That, however, does not mean that the Government of India as such has no seat where it is located. It is common knowledge that the seat of the Government of India is in New Delhi and the Government as such is located in New Delhi. The absence of a provision in the Constitution can make no difference to this fact. What we have to see, therefore, is whether the words of Article 226 mean that the person or authority to whom a writ is to be issued has to be resident in or located within the territories of the High Court issuing the writ? The relevant words of Article 226 are these --
"Every High Court shall have power ... to issue to any person or authority ... within those territories...".
So far as a natural person is concerned, there can be no doubt that he can be within those territories only if he resides therein either permanently or temporarily. So far as an authority is concerned, W.A. No.2306/15 -:6:- there can be no doubt that if its office is located therein it must be within the territory. But do these words mean with respect to an authority that even though its office is not located within those territories it will be within those territories because its order may affect persons living in those territories? Now it is clear that the jurisdiction conferred on the High Court by Article 226 does not depend upon the residence or location of the person applying to it for relief; it depends only on the person or authority against whom a writ is sought being within those territories. It seems to us therefore that it is not permissible to read in Article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction. Thus if a person residing or located in Bombay, for example, is aggrieved by an order passed by an authority located, say, in Calcutta, the forum in which he has to seek relief is not the Bombay High Court though the order may affect him in Bombay but the Calcutta High Court where the authority passing the order is located. It would, therefore, in our opinion be wrong to introduce in Article 226 the concept of the place W.A. No.2306/15 -:7:- where the order passed has effect in order to determine the jurisdiction of the High Court which can give relief under Article 226. The introduction of such a concept may give rise to confusion and conflict of jurisdictions. Take, for example, the case of an order passed by an authority in Calcutta, which affects six brothers living, say, in Bombay, Madras, Allahabad, Jabalpur, Jodhpur and Chandigarh. The order passed by the authority in Calcutta has thus affected persons in six States. Can it be said that Article 226 contemplates that all the six High Courts have jurisdiction in the matter of giving relief under it?
The answer must obviously be "No", if one is to avoid confusion and conflict of jurisdiction. As we read the relevant words of Article 226 (quoted above) there can be no doubt that the jurisdiction conferred by that Article on a High Court is with respect to the location or residence of the person or authority passing the order and there can be no question of introducing the concept of the place where the order is to have effect in order to determine which High Court can give relief under it. It is true that this Court will give such meaning to the words used in the Constitution as would help towards its working smoothly. If we were to introduce in Article 226 the concept of the place where the order is to have effect we would not be advancing the purposes for which Article 226 has W.A. No.2306/15 -:8:- been enacted. On the other hand, we would be producing conflict of jurisdiction between various High Courts as already shown by the illustration given above. Therefore, the effect of an order by whomsoever it is passed can have no relevance in determining the jurisdiction of the High Court which can take action under Article 226. Now, functioning of a Government is really nothing other than giving effect to the orders passed by it. Therefore it would not be right to introduce in Article 226 the concept of the functioning of Government when determining the meaning of the words "any person or authority within those territories". By introducting the concept of functioning in these words we shall be creating the same conflict which would arise if the concept of the place where the order is to have effect is introduced in Article 226. There can, therefore, be no escape from the conclusion that these words in Article 226 refer not to the place where the Government may be functioning but only to the place where the person or authority is either resident or is located. So far therefore as a natural person is concerned, he is within those territories if he resides there permanently or temporarily. So far as an authority (other than a Government) is concerned, it is within the territories if its office is located there. So far as a Government is concerned it is within the territories only if its seat is within those territories.
W.A. No.2306/15 -:9:-
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 Article 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 High Court having jurisdiction under Article 226 so far as the orders of the Government as such are concerned. Therefore, the view taken in Election Commission, India v. Saka Venkata Subba Rao and K.S. Rashid and Son v. Income Tax Investigation Commission that there is two-fold limitation on the power of the High Court to issue writs etc. under Article 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 W.A. No.2306/15 -:10:- those territories, is the correct one."
In fact, in the above judgment, Supreme Court also considered the question whether there is any scope for introducing the concept of cause of action as the basis for exercise of jurisdiction under Art.226 (before amendment). It was held that the concept of cause of action cannot be introduced in Art.226, as by doing so, the Court would be doing away with the express provision contained in Art.226, which requires that a person or authority to whom the writ to be issued should be resident in or located within the territories over which the High Court has jurisdiction.
6. Learned counsel argued that after Khajoor Singh's case (supra), Art.226 had been amended incorporating clause (1A) which was later renumbered as clause (2) by which the territorial jurisdiction of the High Court had been extended to places where the cause of action wholly or in part arises. It is argued that in so far as the first part of the judgment relating to location of office of Central Government, the decision still holds good and is not affected by the amendment to Art.226 of the Constitution. The argument is that merely for the reason that DCI W.A. No.2306/15 -:11:- functions all over India does not mean that its location is outside New Delhi and therefore, the fact that it exercised jurisdiction outside New Delhi does not change the location of DCI.
7. He also relied upon the Full Bench judgment of this Court in Nakul Deo Singh v. Deputy Commandant [1999 (3) KLT 629 (FB)] by which the Full Bench had occasion to consider the difference between right of action and cause of action. It was held that merely for the reason that a person has right of action does not indicate that he has a cause of action to invoke the jurisdiction of a particular court. It is held at para 19 as under;
"19. What really arise for decision is whether the fact that on communication of the order it becomes effective as far as a person is concerned and gives him the right to approach the court for relief is really a fact which is part of the bundle of facts that constitute a cause of action. It is well recognised that there is a distinction between cause of action and right of action. In American Jurisprudence 2nd Edn. Vol. I at page 541 it is stated as follows:-
"Although the courts sometimes confuse the term `cause of action' and `right of action' and state that right of action at law arises from the existence of a primary right in the plaintiff and the invasion of that right by some delict on the part of the defendant, in W.A. No.2306/15 -:12:- a legal sense, these terms are not synonymous or interchangeable. A right of action is the right to presently enforce a cause of action - a remedial right affording redress for the infringment of legal right belonging to some definite person, a cause of action is the operative facts which give rise to such right of action. Right of action does not arose until the performance of conditions precedent to the action and may be taken away by the running of the statute of limitation, through an estoppel, or by other circumstances which do not affect the cause of action. There may be several rights of action and one cause of action and rights may accrue at different times from the same cause".
The above distinction was referred to by a Full Bench of the Allahabad High Court in Balbir Singh v. Atmaram (AlR 1977 All. 211). Their Lordships held that the terms `cause of action' and `right of action' are not synonymous and interchangeable. Right of action is a right to presently enforce a cause of action - a remedial right affording redress for the infringement of a legal right belonging to some definite person: a cause of action is the operative facts which give rise to such right of action. His Lordship Justice Padmanabhan in Roman Ittiathi v. Pappi Bhaskaran (1989 (2) KLT 377) adopted the same approach and noticed the distinction between cause of action and right of action. In Dayasankar v. Chief of the Air Staff, New Delhi (AIR 1988 All. 36) a Division Bench of the Allahabad High Court held that W.A. No.2306/15 -:13:- a right of action is a right to enforce a cause of action. A person residing elsewhere in the country being aggrieved by an order of Government, Central or State or authority or person may have a right of action at law but it can be enforced or the jurisdiction under Art. 226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. Cause of action arises by action of the Government or authority and not by residence of the person aggrieved. In a case where an officer in the Indian Air Force was superseded when he was posted at Madras and he sought a direction by filing a Writ Petition in the High Court of Allahabad to command the appointing authority to decide a representation made by him, it was held that the High Court at Allahabad had no jurisdiction since no cause of action arose within the jurisdiction of the High Court at Allahabad which would entitle that officer to approach the High Court at Allahabad, and the direction was sought to the authority whose office was situate in New Delhi. Following this decision and referring to the earlier decisions on the subject, another Division Bench of the Allahabad High Court in Brijblal Singh Gautam v. Union of India (AIR 1998 All. 132) held that illegality in the award of the contract at a station outside the jurisdiction of the High Court of Allahabad could not be entertained in the High Court of Allahabad merely on the ground that the station where the contract was to be performed fell within the jurisdiction of the High W.A. No.2306/15 -:14:- Court of Allahabad. In the recent decision of the Supreme Court in C.B.I. Mumbai v. Narayan Diwakar (JT 1999 (3) SC 635) the Supreme Court held that when a case was registered at Bombay a wireless message issued to the respondent at Ita Nagar Arunachal Pradesh to come and see the Inspector C.B.I, at Bombay on its receipt at Ita Nagar does not confer jurisdiction on the High Court at Gauhati under Art. 226 of the Constitution to quash the First Information Report. The Court took the view that the receipt of information by the aggrieved person that he should meet the concerned Inspector at Bombay does not enable that person to approach the High Court which has jurisdiction over the place from where he received the communication."
8. Another judgment relied upon is Anand Anoop v Union of India and others [2014 (4) ILR (Kerala) 281], wherein a Division Bench of this Court after referring to the Full Bench judgment held that this Court had no territorial jurisdiction to entertain the writ petition. That was a case in which the appellant who appeared at the pre-medical entrance examination in an institute situated in Maharashtra approached this Court for a direction to respondents 1 and 2 to finalise select list of nominees to the central pool seats in accordance with Ext.P1 prospectus. W.A. No.2306/15 -:15:- The learned Single Judge dismissed the writ petition as not maintainable on the ground of want of territorial jurisdiction. It is challenging the said decision that the appeal had been filed. The Division Bench after considering the legislative history by which Art.226 came to be amended as per Forty-second amendment held that taking into consideration the factual circumstances involved in the matter and the averments in the writ petition, no part of the cause of action had arisen within the jurisdiction of this Court.
9. Learned senior counsel Sri.O.V.Radhakrishnan made submissions on behalf of the 4th respondent . It is argued that no part of the cause of action had arisen within the jurisdiction of this Court as the petitioner challenges the election of the 4th respondent to DCI which did not occur within the jurisdiction of this Court. He also relied upon another Full Bench judgment of this Court in Indian Maritime University v. Viswanathan (2014 (4) KLT 798), wherein the Full Bench considered the scope and effect of what is cause of action and held at paras 56 to 58 as under;
W.A. No.2306/15 -:16:-
"56. Thereafter, enquiry was also conducted at the Zonal office, Puducherry in which also, the petitioner participated. Ext.P4 is the report of the enquiry that was submitted to the disciplinary authority. The disciplinary authority, thereafter, forwarded the enquiry report along with his letter dated 20.7.2012, which was served on the petitioner while he was at Palakkad. The petitioner submitted his objection against the findings of the enquiry officer. This was considered by the disciplinary authority, who, thereafter, issued Ext.P5 order dated 26.9.2012, removing the petitioner from service. This order was issued from Puducherry and was served on the petitioner while he was at Palakkad. He filed an appeal to the General manager, Indian Bank, Chennai which was rejected and this order was also communicated to the petitioner at Palakkad. He filed a review application to the first respondent, the Chairman and Managing Director of the Bank at Chennai. That was also rejected by Ext.P9 order which also was served on the petitioner at Palakkad. It was in these circumstances, the Writ Petition was filed with the following main prayers:
1) To issue Writ in the (nature of) certiorari to quash Ext.P3, Ext.P4, Ext.P5, Ext.P6 & Ext.P9 as legally unsustainable and violative of Art.14 & 16 of the Constitution of India.
2) To issue Writ in the nature of mandamus commanding the 4th respondent to reinstate the petitioner in service with retrospective effect from W.A. No.2306/15 -:17:- the date of dismissal and grant all other consequential benefits including arrears of pay, pay and allowance etc.
3) To issue writ in the nature of mandamus commanding the 4th respondent to treat the period of absence from the date of suspension to date of reinstatement as duty for all purposes and grant such other service benefits which were otherwise entitled to the petitioner untrammeled by the suspension and subsequent dismissal from service.
57. Having gone through the pleadings, we do not see any averment in the Writ Petitions where the petitioners have raised any plea as to how the Kerala High Court has territorial jurisdiction over the cause of action which led them to file the Writ Petitions. Instead, counsel wanted us to infer from the above pleading that an integral part the cause of action arose within the jurisdiction of this Court. However, if the facts which we have noticed above are evaluated in the light of the law laid down in Nakul Deo Singh and the Apex Court judgments, according to us, the only conclusion that is possible is that no part of the cause of action, much less any integral part of the cause of action, has arisen withinthe territorial jurisdiction of this Court justifying the entertainment of these Writ Petitions.
58. However, counsel for the petitioner in W.P.(C). 8678/14 referred us to charge No.3 in Ext.P3 memorandum of charges and contended that part of the misconduct is alleged to have arisen within the W.A. No.2306/15 -:18:- State of Kerala. We are unable to agree with this contention of the learned counsel. The part of charge No.3 relied on by him only says that the petitioner therein made some repayments to the person whose money was appropriated by him from Kerala. Such repayment is not a material fact giving rise to any cause of action or part thereof for conferring jurisdiction on this Court.
In the result, (1). The Division Bench judgment in Selvin Abraham v. Punjab & Sind Bank (2013 (3) KLT 481) is overruled.
(2). W.A.743/14 is allowed and the order of the learned single Judge is set aside.
(3). Writ Petition Nos.22184/13 and 8678/14 are dismissed.
(4). It is clarified that this judgment shall not be to the prejudice of the writ petitioners in seeking their remedies before the appropriate court in accordance with law.
(5). No costs."
10. He also relied upon the Division Bench judgment of Patna High Court in Sukhdeo Narayan and others v. Mahadevananda Giri (AIR 1961 PATNA 475). That was case in which the Patna High Court was considering a writ of quo warranto against a person who was holding the office of Chairman of a Municipality. He was appointed as Chairman in an election W.A. No.2306/15 -:19:- of the Commissioners of the Municipality. It was held that when there are statutory provisions dealing with the conduct of an election, a writ of quo warranto will not be issued. It is held that High Court would refuse to entertain a writ under Art.226 for grant of information in the nature of quo warranto to invalidate an election on the ground that the candidate was not qualified to be elected on the date of his election.
11. On the other hand, learned senior counsel Sri.George Thomas Mevada placed specific reliance to the judgment of a Division Bench of this Court in Dr.Joseph Issac (supra), wherein this Court held at paras 4 and 5 as under;
"4. In Md.Khalil Khan v. Mahbub Ali Mian (AIR (36) 1949 P.C. 78) the Privy Council had an occasion to examine the phrase "cause of action". At para 46, it held:
"The phrase "cause of action" has not been defined in any enactment, but the meaning of it has been judicially considered in various decisions. In Read v. Brown, (1989) 22 Q.B.D. 128 : (58 L.J.Q.B. 120) Lord Esher, M.R., accepted the definition given in Cook v. Gill (1873) L.R.8 C.P.107: (42 L.J.C.P.98) that it meant "every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support W.A. No.2306/15 -:20:- his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved."
Fry L.J. agreed and said, "Everything which, if not proved, gives the defendant an immediate right to judgment, must be part of the cause of action." Lopes L.J. Said:
"I agree with the definition given by the Master of Rolls of a cause of action, and that it includes every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to maintain his action."
This decision has been followed in India. The term has been considered also by the Board. In Mt.Chand Kour v. Partab Singh (1887-1888) 15 I.A. p.156 : (16 Cal. 98 P.C.) Lord Watson delivering the judgment of the Board observed as follows:
"Now 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 grounds set out 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."
It can be seen from the above that a bundle of facts, the existence of each of which is required to be proved for obtaining the relief from a Court, go into the making of the cause of action for a lis. W.A. No.2306/15 -:21:- Art.226 declares that jurisdiction of this Court extends to every case where the cause of action either wholly or in part arises within the territories over which this Court exercises jurisdiction. The existence of some nexus to any one of the facts in the bundle of facts constituting the cause of action, with the territory over which this Court exercises jurisdiction, is sufficient to enable this Court to exercise such jurisdiction. The various facts which go into the constitution of the cause of action can be classified as the facts the existence of which constitute (1) the legal rights of the person or (2) the legal obligations owed to the person seeking relief from a Court.
5. The impugned notification of the Union of India, published in the Gazette of India, evidences the nominations made by the Government of India to DCI (a statutory body corporate). DCI is the apex body created by the Act to regulate the profession of Dentistry in the entire country. It has the authority to recognise or derecognise any qualification in Dentistry. The prior permission of the Government of India contemplated under S.10A for the establishment of an institution for imparting training for grant of recognised dental qualification is required to be given only in consultation with the DCI. Such investiture of authority necessarily affects the entire society and all the people of India, either directly or indirectly. Therefore, to deny ourselves the jurisdiction on the basis of the location of the W.A. No.2306/15 -:22:- office of the DCI or on the belief that seat of office of the Government of India is located in Delhi would be a pedantic understanding of the jurisdiction of this Court and unjust to the people of this country. We are of the opinion that the Union of India, which has the statutory authority to make nominations under S.3 of the Act, owes a legal and constitutional obligation to every person, who is subject to the laws of this country, to act rationally and in accordance with the requirements of Art.14. Such a Constitutional obligation, in our view, flows from the fact that the Government of India is charged with the obligation under the Dentists Act to enforce the provisions of the Act by appropriate executive action including the constitution of the DCI. We regret our inability to accept the preliminary objection."
That was a case in which the petitioner, a Dental Surgeon, challenged the nomination of respondents 4 to 7 in the writ petition to DCI. The said notification was under challenge wherein the Division Bench held that when the exercise of power by DCI affects the entire society and all the people of India either directly or indirectly, to deny jurisdiction on the basis of location of the office of DCI on the belief that seat of office of Government of India is located in Delhi would be a pedantic understanding of the W.A. No.2306/15 -:23:- jurisdiction of this Court and unjust to the people of the country. On that basis, the preliminary objection relating to territorial jurisdiction was overruled.
12. Another judgment relied upon is Sambhaji v. Gangabai and others [(2008) 17 SCC 117]. This judgment is relied upon by the learned counsel to substantiate the fact that all the rules of procedure are made to advance the cause of justice. This judgment was delivered in the light of the power of court to extend time for filing written statement beyond the period of 90 days. This judgment apparently has no application to the facts in issue. Another judgment relied upon is Dr.Kashinath G.Jalmi and another v. The Speaker and others (AIR 1993 SC 1873). This judgment has been relied upon to contend that as far as writs of quo warranto are concerned, the same cannot be dismissed on the ground of laches of the petitioners. It is held at paras 33 and 34 as under;
"33. In our opinion the exercise of discretion by the court even where the application is delayed, is to be governed by the objective of promoting public interest and good administration; and on that basis it cannot be said that discretion would W.A. No.2306/15 -:24:- not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality.
34. We may also advert to a related aspect. Learned counsel for the respondents were unable to dispute, that any other member of the public, to whom the oblique motives and conduct alleged against the appellants in the present case could not be attributed, could file such a writ petition even now for the same relief, since the alleged usurpation of the office is continuing, and this disability on the ground of oblique motives and conduct would not attach to him. This being so, the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action, without seeking any relief personal to them, should not have been dismissed merely on the ground of laches. The motive or conduct of the appellants, as alleged by the respondents, in such a situation can be relevant only for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public concern and relates to the good governance of the State itself."
13. It is argued that a writ of quo warranto has to be considered in a different perspective for the purpose of cause of W.A. No.2306/15 -:25:- action and cannot be construed as akin to a writ of certiorari or a writ of mandamus. The very fact that the President of DCI exercises power in the entire territory of the country by itself would suffice for any Court in India to consider a writ of quo warranto. It is submitted that if the writ jurisdiction is not exercised by this Court, it would end in failure of justice and the constitutional right of the petitioner to challenge such illegal appointments would be jeopardised. It is argued that the judgment of this Court in Dr. Joseph Issac (supra) clearly lays down the said principle and there is no reason why a different view should be taken by this Court.
14. Learned counsel also relied upon a Division Bench order of the High Court of Rajasthan in Arshad Ali v. Union of India. That was a case in which the petitioners sought for a writ of quo warranto on the ground that the post of the President of Badminton Association of India is held in violation of the guidelines issued in that regard. The contention raised was that the Court had no territorial jurisdiction to entertain the writ petition. Perusal of the order indicates that it is only an interim W.A. No.2306/15 -:26:- order and the question as to whether the Court had territorial jurisdiction in the matter was not considered. Hence this order has no application to the facts in issue.
15. Learned Central Government standing counsel Sri.R.Prasantha Kumar appearing on behalf of 3rd respondent submitted that the learned Single Judge had decided the case on the basis of a Division Bench judgment in Dr. Joseph Issac (supra), wherein this Court had earlier exercised jurisdiction in a similar matter.
16. Learned counsel appearing for appellants as well as 4th respondent also submitted that the averments in the writ petition also do not disclose that any part of the cause of action had arisen within the jurisdiction of this Court.
17. After hearing the counsel appearing on either side and on the basis of the judgments cited, we are of the view that Dr.Joseph Issac's case (supra) requires reconsideration. In Khajoor Singh (supra), the Constitution Bench while interpreting Art.226 considered the question regarding the location of the Government taking into consideration the provision that existed W.A. No.2306/15 -:27:- during the relevant time. It was observed that the words "Every High Court shall have power ...... to issue to any person or authority ........ within those territories" in Art.226 refer not to the place where the Government may be functioning but only to the place where the person or authorities either resident or is located. In so far as an authority other than a Government is concerned, it is within the territories, its office is located. Art.226 came to be amended by incorporation of clause (1A) as per Constitution (15th Amendment) Act, 1963, which has been renumbered as Clause (2) by the Constitution (42nd Amendment) Act, 1976.
18. Art. 226 (1) and (2) read as under;
"Art.226(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises 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, prohibition, 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.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, W.A. No.2306/15 -:28:- 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."
19. As rightly argued by the learned counsel for appellant, if the jurisdiction is based on location, this Court will not have any territorial jurisdiction as the seat of DCI is at New Delhi. Then the next question is whether any cause of action wholly or in part arises for the exercise of such power "notwithstanding that the seat of such Government or the authority or the resident of such person is not within those territories". The very object of the amendment was to extend the territorial limits of jurisdiction by incorporating Clause (1A).
20. Therefore, what has to be verified in the present case is whether the pleadings disclose a cause of action either wholly or in part within the jurisdiction of this Court. In fact, in a recent judgment of the Supreme Court in Nawal Kishore Sharma v. Union of India, [(2014) 9 SCC 329 ], while interpreting Article 226, it was held that:
W.A. No.2306/15 -:29:-
"On a plain reading of the amended provisions in clause (2), it is clear that now the High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court's territorial jurisdiction. Cause of action for the purpose of Article 226(2) of the Constitution, for all intent and purpose must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. The expression cause of action has not been defined either in the Code of Civil Procedure or the Constitution. Cause of action is bundle of facts which is necessary for the plaintiff to prove in the suit before he can succeed. The term "cause of action" as appearing in clause (2) came up for consideration time and again before this Court."
The Supreme Court considered various judgments on the point especially State of Rajasthan v. Swaika Properties [(1985) 3 SCC 217], Oil and Natural Gas Commission v. Utpal Kumar Basu [(1994) 4 SCC 711], Kusum Ingots & Alloys Ltd. v. Union of India [(2004) 6 SCC 254], Union of India v. Adani Exports Ltd., [(2002) 1 SCC 567], Om Prakash Srivastava v. Union of India [(2006) 6 SCC 207] and Rajendran Chingaravelu v. R.K.Mishra, Additional Commissioner of W.A. No.2306/15 -:30:- Income Tax [(2010) 1 SCC 457] and held that:
"there cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court's jurisdiction."
It is also held that even a fraction of the cause of action may give rise to a cause of action to approach the Court. But in Dr.Joseph Issac's case (supra), the Division Bench proceeded on the basis that when substantial powers are invested in DCI under a statute and their authority affects the entire society and all the people of India either directly or indirectly, jurisdiction can be exercised by this Court. On a reading of the above judgment, we do not think that the entire case law with reference to the territorial jurisdiction of a Court especially the fact as to whether any part of the cause of action had arisen within the jurisdiction of this Court had been considered by the Division Bench.
21. Learned counsel for respondents 1 and 2 has also W.A. No.2306/15 -:31:- taken up a contention that when a writ of quo warranto is claimed, the exact principles of cause of action cannot be made applicable. The fact that the 4th respondent exercises its authority in the State of Kerala itself would suffice to exercise territorial jurisdiction by this Court. A perusal of the averments in the writ petition does not specifically disclose any cause of action before this Court. But the contention is that when the authority against whom a writ of quo warranto has been filed, exercises its functions within the State of Kerala also, it has to be deemed that part of cause of action arises within the jurisdiction of this Court as well.
22. What is right of action and cause of action have been specifically dealt with by the Full Bench of this Court in Nakul Deo Singh (supra) and a Division Bench of this Court in Anand Anoop (supra). Another Full Bench has also considered as to what is cause of action in Indian Maritime University (supra). The question to be answered is whether the exercise of function by an authority will confer territorial jurisdiction on a particular Court. In fact, in Khajoor Singh (supra), the Constitution Bench held W.A. No.2306/15 -:32:- that there can be no escape from the conclusion that the words any person or authority within those territories in Art.226 refer not to the place where the Government may be functioning, but only to the place where the person or authority is either resident or is located. If there is no cause of action within the territorial jurisdiction of this Court, the question would be whether exercise of function by DCI would confer jurisdiction on a particular Court. Since such issues had not been considered by the Division Bench in Dr.Joseph Issac (supra), we are of the view that instead of taking a different view, propriety demands that the following questions require to be referred for consideration by a Larger Bench:
"(i) Whether the exercise of function by DCI throughout the territories of India will confer jurisdiction on any Court in India to challenge election of the 4th respondent when the election is held at New Delhi, the place of office of DCI is at New Delhi and the 4th respondent has been nominated by the University in the State of Jharkand ?
W.A. No.2306/15 -:33:-
(ii) Whether the judgment in Dr.Joseph Issac (supra) lays down the correct proposition of law in regard to territorial jurisdiction especially in the light of the judgments of Apex Court in Khajoor Singh (supra) and Nawal Kishore Sharma (supra)?"
The Registry shall place the matter before the Hon'ble the Chief Justice for further directions. In the meantime, further proceedings in the writ petition shall remain stayed.
ASHOK BHUSHAN, CHIEF JUSTICE A.M. SHAFFIQUE, JUDGE Rp