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SCA/1278/2011 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1278 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ?
No
=========================================================
SARJEET
SINGH MAIDHAN - Petitioner(s)
Versus
UNION
OF INDIA THROUGH SECRETARY & 3 - Respondent(s)
=========================================================
Appearance
:
MR
VAIBHAV A.VYAS for PARESH UPADHYAY
for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 18/02/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1.
The short question that arises for
consideration in this Special Civil Application is that if the
petitioner is declared a deserter in State of Assam and his
representation is rejected at Gaya (Bihar), whether the cause of
action to sue would be available to the petitioner to file Special
Civil Application, in Gujarat High Court on the ground that he is a
resident of State of Gujarat?
2.
The petitioner was enrolled in the Indian Army as a Constable on
18.11.1987. He was promoted on the post of Naik. While he was in
service as Naik ‘C’ Coy 521 ASC Battalion, Assam, he was granted
leave with effect from 11.4.2006 to 16.5.2006. He overstayed after
16.5.2006 and did not return for joining Army at Assam. Therefore, he
was declared deserter as he was absent from duty from 16.6.2006. The
petitioner’s mother Dakha started claiming regularisation of debit
balance of deserter before the ASC, Records (AT) (Paharpura), Gaya,
Bihar. The aforesaid authority informed Dakha that the certificate
duly signed and counter-signed by District Soldiers Army Welfare
Office be written, so that action may be taken. Similar letters were
also sent on 27.5.2008 and 30.11.2008. The petitioner wrote a letter
to the aforesaid authority on 21.11.2008 claiming pension and other
retiral benefits. On 15.4.2010, the petitioner claimed pension and
other retiral benefits from the office at Gaya (Bihar). He was
informed on 18.4.2010 that those soldiers who are declared deserter
are not paid pension. For other amounts he may write to the
President of India, Central Government. Thereafter, the petitioner
filed Special Civil Application No.3223 of 2010 before this Court,
which was dismissed on 29.3.2010 as pre-mature. In this application
the petitioner has prayed for quashing of the communication dated
28.4.2010 denying pension and has prayed for pension and other
terminal benefits.
3. We
have heard Mr.Vaibhav A.Vyas, learned counsel holding the brief of
Mr.Paresh Upadhyay, counsel for the petitioner.
4. By
15th Constitutional Amendment Act, 1963, Clause (1-A) was added to
Article 226(1) which was re-numbered as Clause (2) by the 42nd
Constitutional Amendment, 1976. The effect of the amendment was that
writ jurisdiction of the High Court was extended to those cases also
where only a part of cause of action had arisen within the
territorial jurisdiction of a High Court. It is necessary to extract
Clause (2) of Article 226 of the Constitution which reads as below:-
“226(2)
Power of High Courts to issue certain writs.- The power conferred
by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which
the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those
territories.”
Section
20(c) of the Code of Civil Procedure and Article 226(2) being pari
materia, it is necessary to extract Section 20(c) which reads as
under:-
“20.
Other suits to be instituted where defendants reside or cause of
action arises.- Subject to the limitations aforesaid, every suit
shall be instituted in a Court within the local limits of whose
jurisdiction-
xxx
xxx xxx xxx
(c)the
cause of action, wholly or in part, arises.”
The
expression “cause of action” has not been defined in any
Statute. Cause of action means that the person or authority to whom
the High Court is empowered to issue must be within the territorial
limits of the High Court and even a small fraction of right to sue
accrued within the jurisdiction of the High Court. In other words,
the cause of action wholly or in part must had arisen within the
territorial jurisdiction of the High Court. “Cause of action”
is the bundle of facts which taken with applicable to them, gives the
petitioner a right to relief against the respondent.
5. The
Apex Court in Kusum Ingots & Alloys Ltd. vs. Union of India
and another (2004) 6 SCC 254 held that the cause of action would
accrue at the place where the appellate/revisional order was passed,
even though part of cause of action had arisen.
6. In
the case of Mosaraf Hossain Khan vs. Bhageeratha Engg.Ltd. and
others (2006) 3 SCC 658, the facts were that the appellant filed
a complaint in West Bengal alleging dishonour of cheque issued by
respondent Company which had registered at Head Office at Ernakulam
in Kerala for the amount due for supply of stone chip in connection
with the construction work of major bridges in the State of West
Bengal. Summons was issued by CJM, Birbhum, West Bengal. Kerala High
Court in a writ petition stayed the proceedings before the CJM. The
Supreme Court held that the registered Head Office was at Kerala, the
cheque was issued from Kerala and payment of dishonoured cheque was
sent from Kerala were not relevant facts for holding that a part of
cause of action arose within the territorial jurisdiction of Kerala
High Court. Similar view with regard to cause of action had been
taken by the Apex Court in Om Prakash Srivastava vs. Union of
India (2006) 6 SCC 207, Alchemist Ltd. and another vs. State Bank of
Sikkim and others (2007) 11 SCC 335, and
Eastern Coalfields Ltd. and others vs. Kalyan Banerjee (2008) 3 SCC
456.
7. The
expression “cause of action” is the entire set of facts
that gives right to an enforceable claim. It is understood to mean a
situation or facts that entitles a party to maintain an action in a
Court. But whole or part of cause of action must arise within the
territorial jurisdiction of the High Court. In order to entertain a
writ petition or special civil application under Article 226(2), the
High Court has to be satisfied from the entire facts pleaded in
support of cause of action that those facts do constitute a cause so
as to empower the Court to decide a dispute which has, at least in
part, arisen within its jurisdiction. Facts which have no bearing
with the dispute involved in the case would not confer territorial
jurisdiction on the Court.
8.
Now, we may examine as to whether residence of the petitioner in
State of Gujarat which confer jurisdiction on this Court wholly or
partly though the petitioner was declared a deserter while he was in
service in State of Assam and his representation made to the
authority at Gaya, State of Bihar was rejected at Gaya. In Daya
Shankar Bhardwaj vs. Chief of the Air Staff, New Delhi and others
(AIR 1988 All. 36, the Division Bench held,
“A
right of action is the right to enforce a cause of action. A person
residing anywhere 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. The
cause of action arises by action of the government or authority and
not by residence of the person aggrieved.”
9. The
decision of the Apex Court in Dinesh Chandra Gahotri vs. Chief of
Army Staff and another (2001) 9 SCC 525 was considered by the
Full Bench of Allahabad High Court in Rajendra Kumar Mishra vs.
Union of India and others (2005) 1 U.P.Local Bodies & Education
Cases 108. The Full Bench in paragraph 17 relied on the decision
of the Apex Court in Oil and Natural Gas Commission vs. Utpal
Kumar Basu (1994) 4 SCC 71, wherein it was held as under:-
“Under
Article 226 a High Court can exercise the power to issue directions,
orders or writs for the enforcement of any of the fundamental rights
conferred by Part III of the Constitution or for any other purpose if
the cause of action wholly or in part, had arisen within the
territories in relation to which it exercises jurisdiction,
notwithstanding that the seat of the Government or authority or the
residence of the person against, whom the direction, order or writ is
issued is not within the said territories. 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. 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. Thus, the question of territorial jurisdiction must
be decided on the facts pleaded in the petition, the truth or
otherwise of the averments made in the petition being immaterial”.
10. The
Full Bench came to the conclusion that place of residence of
petitioner at District Ballia in State of Uttar Pradesh would not
confer territorial jurisdiction on Allahabad High Court the
petitioner was dismissed from service in Court Martial proceedings in
State of West Bengal and as even part of cause of action had not
arisen in State of Uttar Pradesh and the writ petition was not
maintainable.
11. In
view of the discussions made above, we are of the considered opinion
that since the petitioner was declared as deserter while he was in
service at Assam, either the High Court at Guhati would have
jurisdiction or where the petitioner’s representation was rejected,
i.e. at Gaya (Bihar), Patna High Court would have jurisdiction, but
High Court of Gujarat would not have territorial jurisdiction as no
cause of action wholly or in part has arisen in Gujarat. The argument
of counsel for the petitioner that since the petitioner was residing
in Gujarat State, therefore, on the ground of residence, he is
entitled to maintain this Special Civil Application, is liable to be
rejected.
12. In
the case in hand, the petitioner was declared deserter in State of
Assam, his representation was rejected at Gaya in State of Bihar. No
part of cause of action had arisen in State of Gujarat, therefore,
this Special Civil Application is dismissed with liberty to the
petitioner to approach the appropriate authority or legal Forum.
(V.M.Sahai,
J.)
Sreeram. (G.B.Shah,
J.)
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