JUDGMENT
Swatanter Kumar, J.
1. Cause of action determines the Court of competent jurisdiction when a party invokes extraordinary jurisdiction of the Court under Article 226 of the Constitution of India. In discern contradistinction to the provisions of Section 16 to 20 of the Code of Civil Procedure, Article 226(2) restricts the principle of territorial jurisdiction only to ’cause of action’. The expression would take in its ambit partial or entire cause of action. Part of cause of action is again a term of wide magnitude and thus, has to be construed liberally. However, once the element of cause of action or any part thereof in its minutest form is absent, the court may not have territorial jurisdiction, only on the basis of the residence/ location of the party. The provisions of Section 20 of the Code states that subject to the limitation contained in the preceding Sections, a suit could be instituted in a court within the local limits of whose jurisdiction, the defendant or each of the defendants voluntarily resides or where the cause of action wholly or in part arises. Thus, there are two factors which independent of each other, can grant jurisdiction for a party to institute a suit in the court of competent jurisdiction. However, these provisions would not be applicable to writ jurisdiction stricto senso. It is a settled principle of law that provisions of the Civil Procedure Code would not apply in full vigour or strictly to the writ proceedings. They are not applicable of their own force to such proceedings but nonetheless the writ proceedings could be governed by principles analogous to those contained in the Code particularly when they are not inconsistent with the writ rules of this Court or the constitutional mandate contained in Article 226. Unlike the provisions of Section 20 of the Code which specifies different grounds for vesting jurisdiction in the court, Article 226 contemplates location of the authorities and arising of cause of action partly or wholly within the territorial jurisdiction of that court. By introduction of Article 226(2), great emphasis has been laid on the concept of cause of action. Even this statement is further clarified by use of non-obstante clause that it would be so notwithstanding the fact that seat of such Government or authority or residence of such person is not within those territories. This manifestly shows that residence of the party is not really a relevant consideration for determining jurisdiction of a court under these provisions. In view of this constitutional mandate, the provisions of the High Court Rules and Orders relating to exercise of writ jurisdiction have to be read ejusdem generis to the constitutional provisions.
2. To appropriately discuss the rationale between the principle of cause of action giving jurisdiction to a court, it will be useful to refer to the provisions of Article 226 of the Constitution, which reads as under:
226. Power of High Courts to issue certain writs.-
(1) Notwithstanding anything in Article 322[***], every High Court shall have powers, 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 3[writs in the nature of habeus 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, 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.
4[(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under Clause (1), without –
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favor such order has been made or the counsel for such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.]
1[(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32.]
3. These provisions clearly exhibit the intent of the framers of the Constitution to grant territorial jurisdiction to the court in whose jurisdiction the entire or part of cause of action has arisen. The purpose of restricting jurisdiction of the court and relating it directly to the cause of action, has also nexus to the expeditious disposal of the writ petition. An aggrieved person should approach the court of competent jurisdiction and not file writ petitions in the court in whose jurisdiction no cause of action or part thereof has arisen merely on the ground that the respondents or the petitioners were residents of an area falling under jurisdiction of that court. Article 226(3) of the Constitution while furthering the cause of expeditious disposal and prevention of unnecessary prolongation of interim orders in the form of injunction or stay, makes it obligatory for the courts to dispose of such applications within the specified time or within such time as the courts may consider proper for reasons to be stated. Expeditious disposal has relevancy to the administration of justice and, therefore, is essential to the issue of jurisdiction also. Normally wherever cause of action or part thereof arises, the authorities would be in power and possession of the relevant documents which can without any delay be produced before the courts to help expeditious disposal. These are procedural provisions but are mandatory in their form as they alone determine the court of competent jurisdiction. Vesting jurisdiction in a court in whose jurisdiction neither any cause of action or part thereof has arisen, would amount to defeating the very purpose of the constitutional provisions. In a vast country like ours, the division of jurisdiction would be necessary which in turn would link itself to the rationale behind these constitutional provisions.
4. The ’cause of action’ is an expression which is well-explained and well-understood in the legal parlance. The analogous principles of the Code can be applied to the writ jurisdiction but not in contradistinction or in conflict with the specific constitutional provisions. If residence alone is contemplated under Section 20 of the Code so as to vest jurisdiction in a Court, then it would amount to adding words to a Statute, which is not permissible. Normally, the provisions relating to jurisdiction should be construed strictly as they vest or divest jurisdiction in the court. To vest jurisdiction in a Court where the law does not intend, would be impermissible as jurisdiction in a Court can neither be vested by consent of the parties nor by implication. Jurisdiction is conferred by a Statute. We have already stated that the expression ’cause of action’ or any part thereof appearing in Article 226(2) of the Constitution is of significant meaning and consequences. To further analyze this expression in proper concept of law, we may refer to some judgments of this Court as well as the Supreme Court which have explained the concept of ’cause of action’. In the case of Capital Fire v. State Bank of Patiala 2006 (2) AD (Delhi) 29, the Court held as under:
From the pleadings of the parties, it is clear that the facts in regard to execution of the agreement and performance of the contract are not in dispute. On merits, the respondent bank may or may not have a defense to the claim of the petitioner but that is not the subject matter of the present controversy. The bank has filed documents on record. The agreement dated 10th July, 1995 clearly states that the agreement has been executed at Patiala. Another agreement between the parties has also been filed on record at page 73 of the documents, which again shows that the agreement was entered into between the parties at Patiala and it was signed by the petitioner and the officers of the bank at Patiala. There is no dispute to the fact that Registered and Head Office of the Bank is at Patiala. The work order given to the petitioner by the respondent also shows that fire fighting system was to be provided at the old and new building of the State Bank of Patiala at Patiala. The petitioner only has filed some correspondence which is addressed to the office of the petitioner at New Delhi. Once the agreement was entered into between the parties at Patiala, the entire work of the contract is to be performed at Patiala, payments were made at Patiala then the substantial as well as integral cause of action has accrued if at all in favor of the petitioner at Patiala and not within the territorial jurisdiction of this Court. Merely because some documents were addressed by the respondent bank at Delhi in regard to execution of work would not divest the court at Patiala and vest the jurisdiction in this Court.
The Supreme Court in the case of Oil Natural Gas Commission v. Utpal Kumar Basu and Ors. , held as under:
Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the advertisement in Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisements itself mentioned that the tenders should be submitted at New Delhi and that a final decision whether or 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 January 15, 1993, cannot be construed as conveying rejections of the offer as that fact occurred on January 27, 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….
The submission of the learned Counsel for NICCO based on Section 21 of the Code of Civil Procedure that even if this Court comes to the conclusion that the High Court of Calcutta had no jurisdiction, this Court should, in the absence of proof of prejudice, refuse to interfere with the decision of the High Court unless it is otherwise found to be erroneous. While the spirit of Section 21 of the Code of Civil Procedure may support such a submission, we are afraid, the discretion cannot be used in favor of a party which deliberately invokes the jurisdiction of a Court which has no jurisdiction whatsoever for ulterior motives. That would only encourage such type of litigation. The object underlying the provisions in Section 21 is not to encourage ;such litigants but to avoid harassment to litigants who had bonafide and in good faith commenced proceedings in a court which is later found to be wanting in jurisdiction. In the instant case, we are convinced, beyond doubt, that NICCO did not act bona fide in moving the Calcutta High Court and, therefore, the submission based on Section 21 must fail.
Even in the case of Rajasthan High Court Advocates Association v. Union of India and Ors. AIR 2001 Supreme Court 416, the Supreme Court held as under:
The expression ’cause of action’ has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right of the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in ’cause of action.’ It has to be let to be determined in each individual case as to where the cause of action arises.
In the light of the above enunciated principles it is clear that merely because some incidental correspondence was sent to Delhi, which has no material or substantial bearing and integral cause of action in favor of the petitioner, would not vest this Court with the territorial jurisdiction to entertain and decide the present petition. As no cause of action, much less a substantial or integral cause of action had arisen within the territorial jurisdiction of this Court, the parties by consent cannot confer jurisdiction, as otherwise this Court has no jurisdiction to entertain and decide the present suit. The attempt of the petitioner to invoke the jurisdiction of this Court apparently is a deliberate attempt to invoke the jurisdiction of the court where none was vested in the court. The provisions of Section 20 of the Code of Civil Procedure can be invoked where the defendant or defendants reside or carries on the business. The residence or carrying on of business by the petitioner per se would not vest territorial jurisdiction in the court, as residence of the plaintiff could not be a determining factor in this regard. The Supreme Court in the case of New Moga Transport Co., through its Proprietor Krishanlal Jhanwar v. United India Insurance Co. Ltd. and Ors. , while rejecting such a plea raised by the plaintiff held as under:
By a long series of decisions it has been held that where two courts or more have jurisdiction under CPC to try a suit or proceedings, an agreement between the parties that the dispute between them shall be tried in any one of such courts is not contrary to public policy and in no may contravenes Section 28 of the Indian Contract Act, 1872. Therefore, if on the facts of a given case more than one court has jurisdiction, parties by their consent may limit the jurisdiction to one of the two courts. But by an agreement parties cannot confer jurisdiction on a court which otherwise does not have jurisdiction to deal with a matter.
Still in another case titled as Patel Roadways Limited, Bombay v. Prasad Trading Company , the Supreme Court while commenting upon Section 20(a) Explanation held that where the defendant company has a principal office as well as a subordinate office at different places and the cause of action had arisen at the subordinate office, that Court alone will have the jurisdiction and not where the principal office of the defendant is situated.
In the case of Union of India v. Adani Exports Ltd. , the Supreme Court while explaining the principle laid down by that Court in the case of Union of India and Ors. v. Oswal Woollen Mills Ltd. explained the scope of territorial jurisdiction and held as under:
We are unable to accept this finding of the High Court. The view of the High Court that this Court in the case of Oswal Woollen (supra) had held that the existence of the registered office of a Company would ipso facto give a cause of action to the High Court within whose jurisdiction the registered office of such a Company is situated, is not correct. As a matter of fact, in the case of Oswal Woollen (supra), the question of territorial jurisdiction in the sense with which we are concerned now, did not arise at all. In that case, the observations of the Court were as follows:
Having regard to the fact that the registered office of the Company is at Ludhiana and the principal respondents against whom the primary relief is sought are at New Delhi, one would have expected the writ petition to be filed either in the High Court of Punjab and Haryana or in the Delhi High Court. The writ petitioners, however, have chosen the Calcutta High Court as the forum perhaps because one of the interlocutory relief which is sought is in respect of a consignment of beef tallow which has arrived at the Calcutta Port….We do not desire to probe further into the question whether the writ petition was filed by design or accident in the Calcutta High Court when the office of the Company is in the State of Punjab and all the principal respondents are in Delhi.
It is in that context of noticing the motive of the parties concerned in that case in choosing a forum, the above observation as to the place of the registered office of the Company was incidentally made in the judgment. Having perused the judgment in Oswal’s case (supra), we are of the opinion that judgment is no authority to decide as to the requirement of law in regard to establishing the territorial jurisdiction of a court. We must say in all fairness, Mr. Desai, learned senior counsel, has not placed any reliance on this judgment nor on the basis of the finding of the High Court in this case in regard to its territorial jurisdiction. He, however, contends that from the facts narrated in the civil applications, more so in Paragraph 16 of the application, it is crystal clear that a substantial part of the cause of action has arisen within the jurisdiction of the High Court of Ahamedabad.
As is clear in this very case, while explaining the principle that registered office of a company within the territorial jurisdiction of the court would not ipso facto give a cause of action to that Court, the Court also reiterated the principle that the entire facts pleaded would determine the cause of action and not merely the happening of an inconsequential event that would determine the cause of action, and held as under:
In order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application, the High Court must be satisfied from the entire facts pleaded in support of the 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. It is clear that each and every fact pleaded in the application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with 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 the Court concerned.
5. Still in another case titled as The Federation of Motorsports Clubs of India v. Motorsports Association of India and Anr. CS(OS) No. 804/2002 decided on 25th August, 2005 where the Court explained the concept of jurisdiction with reference to other judgments, also described the ’cause of action’ as under:
In terms of the provisions of Section 16, 17 and 20 of the Code, a suit shall be instituted in the Court within the local limits of whose jurisdiction the property, subject matter of the suit, the defendant/defendants reside or where a cause of action wholly or in part arises within the jurisdiction of that court. The cause of action necessarily must constitute of certain facts which in law would give rise to an actionable wrong. No facts have been averred in the plaint as to what activities were being carried out in Delhi by defendant No. 1 which directly or indirectly infringed the rights of the plaintiff, so as to give rise to a ’cause of action as known in law’. The learned Counsel appearing for the plaintiff made a reference to the averments made in paragraph 42 of the plaint to the effect that the suit raises inter alia issues relating to recognition by Government of India which are activities taking place in Delhi. Consequently, the cause of action arises entirely and/or at least a substantial part thereof, at New Delhi in as much as defendant No. 1 while exercising the authority as the purported ASN in India has in fact written letters pertaining to granting and cancellation of permits in respect of Motor Sports in Delhi and providing its expertise pertaining to Motor sports to persons situated in and operating from Delhi.
These averments are obviously incapable of conferring any territorial jurisdiction on this Court, ex facie. If the statement of the plaintiff as argued, though not pleaded, that defendant No. 1 has its registered office at Mumbai and carrying on activities all over India, then the court has to see where the substantial cause of action has arisen, and not merely an incidental activity of the other party. It will be too far-fetched to argue that on such averments court all over India would get jurisdiction, particularly in absence of any specific averment relating to an act infringing the rights of the plaintiff. The plaint in this regard, is certainly vague, indefinite and on its cumulative reading, is incapable of giving any territorial jurisdiction to this Court. Whether the plaintiff is the only association recognised by the Government of India, is a fact which can be proved or disproved by leading cogent evidence from the concerned Department of the Government of India. The Government of India, as already noticed, is not a party to the present suit and in any case would neither be a proper nor a necessary party, as no relief is being claimed against Government of India in the present suit, and rightly so, in view of the judgment of the Bombay High Court and pendency of the writ petition between the parties before this Court. Mere averments of certain facts in relation to exercise of power by another authority or a Department of the State by itself would not make that Department a necessary or a proper party to the suit.
The Supreme Court in the case of Union of India and Ors. v. Adani Exports Limited and Anr. even held that mere existence of an office of a company would not ipso facto give a cause of action to the Court within whose jurisdiction such an office is located (AIR 2002 Supreme Court 126). ‘Cause of Action’ must be relatable to the facts as they existed on the date of institution of the suit and it is for the plaintiff to plead and show before the court that such cause of action or any part thereof has arisen within the territorial jurisdiction of this Court. In the present case, the plaint, as it stands, does not even refer to any activity of the defendant, much less an act giving right to the plaintiff to move the court. As far as the plea of plaint not disclosing the cause of action is concerned, it could be partly accepted in so far as it relates to the plaint not disclosing facts constituting territorial jurisdiction of this Court, but in so far as the effect of the judgment of the Bombay High Court as afore-referred is concerned, it may not be barred by the principle of res judicata and the plaintiff being debarred from claiming such a relief, would have to be gone into by the court only during the trial.
6. The petitioner has heavily relied upon the judgments of a learned Single Bench of this Court in the case of Bernard D’Mello v. Industrial Finance Corporation Limited and Ors. 2004 (V) AD (Delhi) 65 and judgment of the Supreme Court in the case of Dinesh Chandra Gahtori v. Chief of Army Staff and Anr. . The judgment of the Supreme Court would have to be confined to the facts and circumstances of that case as it does not enunciate any principle of law. To ensure that this Court can follow a judgment as precedent on yardstick of ratio decidendi, the judgment essentially must discuss the facts, principles of law and arrive at a clear conclusion to be adopted as principle of law, universally applicable to the cases of jurisdiction. Furthermore, the emphasis of the judgment was more on the fact that the writ petition had been pending for a period of 7 years and it was not quite just and fair to dismiss the writ petition on the ground of territorial jurisdiction alone. A passing reference was made by the Court stating that the Chief of Army Staff can be sued anywhere in the country. This observation has to be read in conjunction with cause of action. In fact, their Lordships of the Supreme Court did not interpret Article 226(2) of the Constitution to state any principle of law. Similarly, in the judgment of the learned Single Judge of this Court in the case of Bernard D’Mello (supra), the Court while emphasizing the concept of ’cause of action’ in relation to territorial jurisdiction did observe but even the Court within the territorial jurisdiction of which the respondent resides would have the jurisdiction. Residence of a juristic entity would be the place its registered office is situated. In that case the decision of the Board of Governors which had accepted the recommendations of the Review Committee to retire the petitioner was communicated to the petitioner within the territorial jurisdiction of the Court. Thus, a part of cause of action had arisen at Delhi of which place the petitioner was resident. Therefore, the issue was answered in favor of the petitioner.
7. Article 226(1) clearly states that every High Court shall have the powers throughout the territories in relation to which it exercised jurisdiction to issue writ or orders to any person or authority. Exercise of this power to some extent stands enlarged on the basis of a cause of action having been wholly or in part arisen within the territorial jurisdiction of this Court. There the non-obstante clause appearing in Article 226(2) provides the explanation to the normal rule of respondent being sued at his place of resident by stating notwithstanding that the seat of such Government or Authority or residence of such person is not within those territories. It tantamounts to enlarging the scope of jurisdiction primarily founded on the ground of cause of action. Thus, it may not be possible to accept the arguments based upon this judgment as an absolute preposition of law, that residence or location of office of the Authority would be the determinative factor for deciding the issue of Court of competent jurisdiction. It is more so in light of the judgments of the Supreme Court and the interpretation of these two clauses, keeping in mind the doctrine of forum non conveniens.
8. Article 226(1) of the Constitution relates to the sources of power to the Court as well as its territorial jurisdiction. Clause (2) amplifies that jurisdiction in relation to a cause of action. These clauses have a clear demarcation but the location of office of the Authority or Government, in absence of any cause of action having arisen within the same territorial jurisdiction, ex facie may not be sufficient to give jurisdiction to the Court. The power of the Court is not synonymous to jurisdiction of the Court. While dealing with the cases of the present kind, it may be a proper exercise of jurisdiction not to entertain the writ petitions where the office of the Ministry is located at Delhi but in the entire events or facts constituting the cause of action, the said office had no role to play. While discussing this principle we have to keep in mind the kind of cases that we are dealing with. Shortly, we will proceed to record the factual matrix of each of the case as well. In the case of Kusum Ingots and Alloys Ltd. v. Union of India and Anr. , the Supreme Court clearly rejected the contention that the writ would be maintainable in this Court simply because seat of Union of India is in Delhi. The Court also held that ’cause of action’ would include material and integral facts and accrual of even a fraction of cause of action within the jurisdiction of the Court would provide territorial jurisdiction for entertaining the writ. The Court in that case held as under:
However, 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….
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…When an order, is passed by a Court of Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.
9. Still in another case titled as National Textiles Corporation Ltd. and Ors. v. Haribox Swalram and Ors. , while interpreting Article 226(2) in relation to cause of action and territorial jurisdiction, the Court held as under:
Cause of action as understood in civil proceedings means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. It is the bundle of facts which taken with the law applicable to them, gives the plaintiff a right to relief against the defendant. Each and every fact pleaded in the writ petition does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned.
Union of India v. Adani Exports Ltd. ; State of Rajasthan v. Swaika Properties Oil and Natural Gas Commission v. Utpal Kumar Basu , relied on
In the present case, the textile mills are situate in Bombay and the supply of cloth was to be made by them ex-factory at Bombay. According to the writ petitioners, the money was paid to the mills at Bombay. The Single Judge after a detailed discussion of the matter held that the Calcutta High Court had no jurisdiction to entertain the writ petition. The Division Bench reversed this finding on the ground that the concluded contract had come into existence which could be cancelled only after giving an opportunity of hearing and consequently, the question of revocation of the contract at its Calcutta address would constitute a cause of action. The view taken by the Division Bench is wholly erroneous in law. It was nowhere pleaded in the writ petition that the appellant had initiated any action under Section 11 of the Act by issuing any notice to the writ petitioner for cancellation of the contract. Regarding the jurisdiction of the Calcutta High Court, the relevant statement was made in para 73 of the writ petition (set out in para 12). The mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained.
10. Various judgments of the Supreme Court had uniformally taken the view that cause of action or any part thereof as understood in law would vest jurisdiction in the Court. A party would not be entitled to invoke jurisdiction of the Court merely on the basis that location of the Authority is within the territorial jurisdiction of the Court, though, no part of cause of action or even fraction thereof is attributable to the said Authority and even no relief is claimed, against the said Authority.
11. In the case of Rajendra Kumar Mishra v. Union of India and Ors. 2002 (5) Service Cases Today 606, a Full Bench of the Allahabad High Court took the view that factum of residence of the petitioner would not determine jurisdiction and while noticing the judgment of the Supreme Court in the case of Dinesh Chandra Gohatri (supra), it was also stated that for a precedence to be binding, the facts of the case and the point decided would be of relevant consideration and further held that where all proceedings were taken in the places beyond the territorial jurisdiction of the Court, the Allahabad High Court would have no jurisdiction. A similar view was also taken by a Division Bench of this Court in the cases of Hans Raj v. Union of India and Ors. W.P. (C) No. 4491/2003 decided on 8.11.2001, Lt. Col. S.K. Isawe v. Union of India and Ors. W.P. (C) No. 14372/2005 decided on 6.12.2005, Ex. Constable Haripal Singh v. DG, CISF and Anr. W.P. (C) No. 5712/2006 decided on 19.4.2006 and another Single Bench judgment of the Allahabad High Court in the case of Sep/Dvt (MT) Phool Chandra v. Union of India and Ors. Military Law Journal 2004 All 12. Therefore, the consistent view and the principle that emerges from the above discussion is that before a petitioner can invoke jurisdiction of a High Court under Article 226(2) of the Constitution of India in cases of the present kind, he is required to satisfy the Court that cause of action or part thereof and even a fraction of the cause of action had arisen within the territorial jurisdiction of the Court.
12. Before introduction of Article 226(2) in the Constitution of India, Article 226(1) was the subject matter of judicial interpretation by the Supreme Court on different occasions. However, the consistent view in regard to scope and limitation of jurisdiction under Article 226, as it stood on that date, was stated by the Supreme Court to say that there are only two limitations placed upon the exercise of these powers by a High Court under Article 226 of the Constitution of India. One is that the power is to be exercised throughout the territories in relation to which it exercises jurisdiction that is to say, that the writs issued by the court cannot run beyond the territories subject to its jurisdiction. The other limitation is that the person or authority to whom the High Court has been empowered to issue writs must be within those territories. The dictum of the Supreme Court also stated that a tribunal or authority permanently located and normally carrying on its business outside the territorial limits of a High Court, cannot be regarded as functioning within those territorial limits and therefore, amenable to jurisdiction to that High Court merely because it exercises jurisdiction within those territorial limits so as to affect the rights of the parties therein. In a case where the question was with regard to right to sit and vote in Legislative Assembly in Madras, it was held that the State of Madras could not give jurisdiction to the High Court of Madras to issue a writ against Election Commission (Refer Lt. Col. Khajoor Singh v. UOI and Anr. , K.S. Rashid and Son v. Income-tax Investigation Commission and Ors. & Election Commission, India v. Saka Venkata Subba Rao SCR 1953 1144). In the case of Lt. Col. Khajoor Singh (supra), the Supreme Court was also concerned with the question whether there is any scope for introducing the concept of cause of action and basis of exercise of jurisdiction under Article 226. The court said that Article 226, as it stood at that time, does not refer anywhere to the accrual of cause of action and to the jurisdiction of the High Court depending on the place where the cause of action accrues within its territorial jurisdiction. If such a provision was available, then it could be said that the court can issue writ against a person or authority even though it may not be within its territories and simply because the cause of action has arisen within those territories.
13. The view taken in these judgments was that if the seat of the Government is not located within the territories of the High Court having jurisdiction under Article 226, the writ would not be hit for lack of territorial jurisdiction. As a result of this consistent view of the Supreme Court, probably Article 226(2) was introduced which clearly relates to exercise of jurisdiction if the cause of action or any part thereof has arisen within the territories of the court.
14. However, in the later judgments, the Supreme Court has unambiguously taken the view that even if the seat of the Government or the concerned department is located within the territorial jurisdiction of the court, but no cause of action or any fraction or part thereof has arisen within the jurisdiction of that court, the court may not answer the issue of jurisdiction in favor of the petitioner. Constitutional mandate is that the High Court would exercise jurisdiction in relation to the territories of which it is the High Court. Clauses (1) and (2) of Article 226 have to be read and construed in conjunction with each other but none of them would be capable of extending jurisdiction of the court normally beyond its prescribed territorial jurisdiction. To take benefit of this enlarged jurisdiction, it would be obligatory upon a petitioner to show that any cause of action or part thereof had arisen within the territorial jurisdiction of that court.
15. We are dealing with the cases where the Forces are operating under Special Statues like Army Act, CRPF Act, CISF Act & BSF Acts. These Acts have an inbuilt remedial system. They provide for statutory appeal provisions and representations. In fact, any order passed can be complained of to the higher authorities under the provisions of the Act. In the event, all these authorities are located beyond the territorial jurisdiction of the court and the petitioner has exhausted such remedies, then he can hardly invoke the jurisdiction of the court on the ground that the central or main office or seat of the department is located within the jurisdiction of this Court. Such an interpretation would result in prolongation of cases and also cause prejudice to the parties. The records of all the authorities whose jurisdiction the petitioner might have invoked during the pendency of departmental action or proceedings would be available in the offices of the authorities beyond the local limits of the court. We have already noticed that expeditious disposal is one of the underlining features of the amended provisions of Article 226 and to ensure balancing of convenience between the parties to the lis, it may be appropriate that the courts determine the question of jurisdiction at the very threshold of the proceedings. Proper exercise of jurisdiction would ex facie take in its ambit remedies which are effective and efficacious. If both or any of these ingredients are not satisfied, it would be a factor which will tilt the view of the court against exercising its jurisdiction. The court is expected to deal with the issue of jurisdiction right at the initial stages and normally while taking the petition as framed to be correct. Article 226(2) opens with the words The power conferred by Clause (1) to issue directions… which clearly indicates amplification of jurisdiction and that the provision is meant to aid the powers vested in the High Court for issuance of writ, order or direction located within their territorial jurisdiction. The expression ‘may also’ would have to be given their true meaning while ensuring that such connotations are in consonance with the law enunciated by the Supreme Court and also spirit of constitutional territorial jurisdiction of a High Court.
16. It is a paramount principle of law of jurisdiction that the court has to determine whether it has jurisdiction to entertain and decide a case brought by a litigant before it. Undue hardship is one of the factors which the court would consider while answering such an issue. The doctrines of forum conveniens & forum non conveniens are the legal doctrines used by the court to determine the issue of jurisdiction. Ubi jus ibi remedium there is no wrong without a remedy, is an effective legal maxim often applied to administration of justice but the question is which is the proper and convenient legal forum or court whose jurisdiction a party ought to invoke. The petitioner being dominus litus is master or has domain over the case but these rights are subject to law of jurisdiction. The laws and procedure provided under the Code are lex fori and wherever in terms of such law, the ingredients of territorial jurisdiction are not satisfied, the court would not assume jurisdiction merely on the ground of residence (office of one of the respondents is within the court’s jurisdiction). The doctrine ‘forum non conveniens’ has a limited application but certainly is not an irrelevant factor, while adjudicating question of jurisdiction under the terms of Article 226 of the Constitution of India. The court would examine whether a claim should or should not be entertained for forum non conveniens for the reason that there is another forum i.e. clearly more appropriate than the one whose jurisdiction has been invoked. This is of course only a relevant consideration and not a determinative factor.
17. There could be cases where the statutory proceedings have been carried out in the jurisdiction of a different Court but the petitioner, by filing a representation before the Chief of Army Staff or a statutory complaint could bring his case within the jurisdiction of the Courts at Delhi, if such a petition was pending and/or was wrongly decided and the averments in the writ petition were made against such authority claiming some relief or direction against that authority.
18. Thus, in the cases of the present kind, it is essential on the rule of statutory interpretation as well as forum conveniens seen in light of consistent view of the Supreme Court that the cause of action or any part thereof even in its smallest fraction should have arisen within the jurisdiction of the court concerned. The High Court obviously has the power to issue writ or order to Government or any person within its territorial jurisdiction but such vesting of jurisdiction would be doubted where the authority concerned is neither effectively nor remotely concerned with the process of decision or decision questioned in the writ petition and no relief is claimed against that party. Location of its office per se particularly when it is not coupled with any fraction of cause of action may not be sufficient to clothe the court with jurisdiction to effectively determine the matters in issue. Such approach would further the cause of effective, expeditious and effectious disposal of petitions and would cause least inconvenience to the parties concerned.
19. In W.P.(C) NO. 13560/2006, the orders impugned in the writ petition were passed by the Commandant and Office of the Directorate General, Assam Rifles, Shillong. They were served upon the petitioner there. The relevant claim in the writ petition is also against respondent No. 3 i.e. the Commandant, Assam Rifles Training Centre and School, Dimapur, Nagaland. Mere impleadment of the Union of India, through Secretary, Ministry of Home Affairs, without any averments in the writ petition that the cause of action or any part thereof had arisen within the territorial jurisdiction of this Court and/or any order was passed by the said authorities, would render the petition liable to be dismissed on the grounds of territorial jurisdiction. The petitioner was selected for appointment in the Army Rifles in August 2003. He was undergoing training in Assam Rifles Training Centre and School, Dimapur and during the course of training, he had a fall due to which his right foot was fractured and he was sent for treatment. Later on, he was downgraded to low medical category A3 (t-8) temporarily for a period of 8 weeks. After availing his sick leave, the petitioner was directed to report to Review Medical Board, which opined that he was fit for training with effect from 3.12.2004. It is alleged that the petitioner reported for training at his Company, being fit, but was not allowed to join. Thereafter, he was discharged on 6.1.2005, according to the petitioner ostensibly, on the ground that he is unlikely to become a good soldier. This order was also passed at the Training Centre against which the petitioner filed an appeal on 25.4.2006 to respondent No. 2 which was also rejected by the authorities at Nagaland. From these admitted facts, it is clear that no cause of action or any part thereof has arisen within the territorial jurisdiction of this Court. Therefore, we are of the considered opinion that this Court has no territorial jurisdiction to entertain and decide the present writ petition and the same is dismissed for want of jurisdiction. However, the petitioner is at liberty to approach the Court of competent jurisdiction in accordance with law.
20. Accordingly, the petition stands disposed of, while leaving the parties to bear their own costs.
WP(C) No. 16083/2006
21. The petitioner has filed the present writ petition under Article 226 read with Article 227 of the Constitution of India praying that respondents be restrained from recovering arrears of Damage Rate of Rent in view of Order dated 21st April, 2006 and 25th April, 2005 of respondent No. 5 and pay the petitioner his pay on regular basis. It is further prayed that respondent No. 1 be directed to refund the salary of petitioner recovered for the month of August, 2006 under the garb of recovering arrears of Damage Rate of Rent under orders of respondents 6 and 7. Further it is prayed that order dated 22nd December, 2005 passed by respondents 5 and 7 to respondent No. 6 be also quashed.
22. The necessary facts are that the wife of the petitioner as well as the petitioner joined the Indian Army in the year 1987 and 1991 respectively. The petitioner was working as Officer Commanding No. 1 Detachment, 31 Composite Intelligence Unit at Khanabal District, Jammu and Kashmir. On 27th May, 2005,the petitioner was transferred from Coimbatore to Jammu and Kashmir as officer commanding. Vide his letter dated 17th August, 2005, the petitioner requested respondent No. 5 i.e. Station Commander, Station Head Quarters, Red Fields, Coimbatore-18 to permit the petitioner to retain married accommodation as the petitioner was being posted to a non-family station. He further stated that his wife and two children need the accommodation. This request was declined by respondent No. 5 vide letter dated 3rd September, 2005 and petitioner was directed to vacate the quarter. The respondent No. 5 again issued a letter dated 8th November, 2005 initiating action under Public Premises Eviction Act, 1971 as well as charging damage rate of rent with effect from 12th August, 2005 when the petitioner was required to vacate the premises. The petitioner had been approaching the said respondents time and again but of no consequence. The petitioner was charged damages against which the petitioner protested and according to the petitioner, the damages on account of rent were being charged in violation of the rules and guidelines as contained in the relevant rules. The petitioner was then declared as an unauthorised occupant and this was informed to the petitioner vide letter dated 26th November, 2005 and orders with regard to charging damage rate of rent were issued. On 25th January, 2006, the petitioner was again directed to vacate the married accommodation at Coimbatore and he was apprised that damage rate of rent would be charged by respondents 6 and 7 i.e. Station Headquarters, Coimbatore and Controller of defense Accounts (Officers), Golibar Maidan, Pune with effect from 12th May, 2005. Respondent No. 4 vide his order dated 21st April, 2006 had cancelled the order dated 22nd December, 2005 passed by respondent No. 5 declaring the petitioner as an unauthorised occupant. However, according to the petitioner, despite direction issued vide order dated 25th April, 2006, the damage rate of rent was still being recovered from the petitioner. His wife, who is also member of the force, was not permitted to retain the premises. According to the petitioner, the respondents are recovering Rs. 1.5 lakhs towards damage rate of rent and recoveries were being made from his salary. In light of the above facts, the petitioner has claimed the following reliefs in the present petition:
(i) Issue appropriate writ, order or direction directing the respondent No. 2 to 7 not to recover any arrears of Damage Rate of Rent in view of order dated 21/4/06 (Annexure P-2) of respondent No. 4 and orders dated 25/4/06 (Annexure P-4) of respondent No. 5 & pay the petitioner his monthly salary on regular basis.
(ii) Issue appropriate writ, order or direction to respondent No. 1 to refund the salary of petitioner recovered for the month of August 2006 under the garb of recovering arrears of Damage Rate of Rent under the orders of respondent No. 6 & 7.
(iii)Issue appropriate writ, order or direction thereby quashing orders dated 22/12/05 of respondent No. 5 & 7 to respondent No. 6 and also quash all such related orders.
(iv) Issue appropriate writ, order or direction to pay adequate compensation to the petitioner in view of the unnecessary and avoidable expenditure caused as also to for the unnecessary financial hardship and mental harassment caused, due to the treatment meted out to the petitioner.
(v) And, to issue such further order as this Hon’ble Court may deem fit and proper in the circumstances of the case.
23. We may notice that all the respondents, whose orders are challenged by the petitioner in these proceedings and against whom issuance of appropriate directions have been prayed for are situated at Pune, Coimbatore or Chennai. Though the Chief of Army Staff and Minisry of defense have been imp leaded as respondents 2 and 1 respectively, the petitioner has apparently made no statutory complaint or petition under Section 27 of the Army Act to any authorities at Delhi, which is stated to be pending or upon which any order has been passed by respondents 1 and 2. In fact the petitioner has not claimed any relief against respondents 1. Respondent No. 2 has not issued any recovery order against the petitioner.
24. The respondents at the very outset have taken a preliminary objection to the maintainability of the present writ petition before this Court on the ground of territorial jurisdiction. It is evident from the above facts that no cause of action or any part thereof has arisen at New Delhi i.e. within the territorial jurisdiction of this Court. All the correspondence placed on record have been addressed to the authorities at Pune/Coimbatore/Channai. Even the order dated 21st April, 2006 cancelling the order dated 22nd December, 2005 by which the petitioner was declared as an unauthorised occupant of Govt. married accommodation was issued by the competent authority situated at Chennai.
25. In view of the aforestated law and the undisputed facts of this case, we hold that this Court has no territorial jurisdiction to entertain and decide the present writ petition. The same is dismissed with liberty to the petitioner to approach the Court of competent jurisdiction. The petitioner is at liberty to press his request for allocation of the same official premises in the name of his wife before the competent authority and we do hope that if such request is made to the competent authority, the same shall be considered sympathetically.
26. Accordingly, this petition is disposed of with the above observations, while leaving the parties to bear their own costs.
WP(C) 12404/2005
27. The petitioner was enrolled in Assam Rifles on 24.10.1993. He was invalided out of service on medical grounds on 30.9.2003 after rendering 9 years 11 months and 6 days service with the respondents. His order of discharge was passed by the Commandant of Assam Rifles where after he did not receive any reply and made a representation to the Commandant, 16, Assam Rifles, C/o 99 APO. The Dy. Commandant of 16, Assam Rifles on 27.1.2005 informed the petitioner that his request had been sent to Dte. General, Assam Rifles, Shillong. On 8.2.2005, the said Dte. Informed the petitioner that he was not entitled to disability pension as the same was not attributable to service. He filed an appeal to the Dte. General, Assam Rifles to which he did not receive any reply. where after a legal notice was sent by the petitioner through his counsel to these authorities at Shillong as well as to the Secretary, Ministry of Home, Government of India. In the notice served, no claim was raised against the Ministry of Home and even in this writ petition the petitioner has prayed that the order passed by the authorities at Shillong be quashed and the petitioner be granted all consequential benefits w.e.f. 30.9.2003. No relief has been claimed against the Ministry of Home, New Delhi. The order dated 8.2.2005 was also passed by the Record Officer for Director General, Assam Rifles vide which the petitioner was denied the prayed relief.
28. From the above narrated facts, it is clear that no cause of action or any part thereof had arisen within the territorial jurisdiction of this Court. None of the respondents who are effectively concerned with the case of the petitioner are also resident within the territorial jurisdiction of this Court. The petitioner has not made any averments of breach of any duty or obligation against respondent No. 1 and in fact no substantive relief has been claimed against the said respondent.
29. In view of the principles discussed by us above, we have to accept the objection taken by the respondents in relation to territorial jurisdiction and consequently this petition is dismissed with liberty to the petitioner to approach the court of competent jurisdiction.
WP(C) No. 11040/2004
30. The petitioner was enrolled as the member of the Armed Force. On 22nd March, 1999, he was placed under suspension by the order of Group Commandant on the allegation that he was involved in a criminal case registered by Mumbai Police. On 16.4.1999 charge sheet was served upon the petitioner under Rule 34 of CISF Rules, 1969 by the Commandant Officer. According to the petitioner, he was falsely implicated in the case. However, without considering the reply of the petitioner, an Inquiry Officer was appointed, who submitted his report on 31st December, 1999 wherein it was stated that charges were not proved. The Commandant vide order dated 4th January, 2000 had disagreed with the findings of the Inquiry Officer. Copy of the same was furnished to the petitioner, who filed his detailed reply to the disagreement note issued by the Commandant on 25th January, 2000. The Commandant vide his order dated 31st January, 2000 removed the petitioner from service. Against this order of the Commandant, the petitioner preferred an appeal to the Deputy Inspector General, which was also dismissed on 29th December, 2000. After the decision of the criminal Court on 25th August, 2003, the petitioner filed a representation to the DG for review of order dated 31st January, 2000. Since the competent authority for considering the representation of the petitioner was Inspector General, CISF, RCFL Mumbai, therefore, his representation dated 25th August, 2003 was sent to the said Inspector General for appropriate action. The said representation was treated as revision by the Inspection General, CISF and the same was dismissed on the ground that the same was barred by time and was not maintainable. This order was passed by the authorities on 31st December, 2003. Validity of this order is in question in the present writ petition.
31. As is evident from the above narrated facts, all the orders were passed by the authorities, which are situated beyond the territorial jurisdiction of this Court. The petitioner had invoked remedies before the authorities, which are located at Mumbai or at his own Battalion, which is posted in that sector. None of the authorities at Delhi have dealt with the case of the petitioner. Original, Appellate and Revisional orders on the reply/appeal/representation/revision filed by the petitioner were passed at Mumbai and other places. No cause of action or part thereof has arisen within the territorial jurisdiction of this Court. Thus, we accept the objection taken by the respondents with regard to maintainability of the present writ petition before this Court on the ground of territorial jurisdiction.
32. Consequently, the writ petition is dismissed with liberty to the petitioner to approach the court of competent jurisdiction. However, in the facts and circumstances of the case, the parties are left to bear their own costs.
WP(C) No. 12018/2006
33. The petitioner was serving with Central Reserve Police Force. He was posted in Battalion Head Quarter Shillong but was attached with 6th Battalion at Guwahati. On 22nd June, 1995, a charge sheet along with memorandum was served upon the petitioner. Three article of charges were framed against the petitioner in relation to consuming liquor while on bona fide government duty, misbehaving with a Nepali Girl and assaulting her and firing two shots of live Amn. (7.62 mm) when he was scuffling with the local girl and surrounded by the public without any provocation to scare the crowd and lost 23 rounds of 7.62 mm Amn issued to him. As a result of this, the petitioner was punished and dismissed from service. However, in May, 1997, IGP, NES, CRPF had set aside the order of dismissal and ordered to conduct a de-novo departmental inquiry against the petitioner. On 5th June, 1997, the petitioner was reinstated in service with all consequential benefits. On 26th November, 1997, the Inquiry Officer had submitted his report at the place of posting of the petitioner. In furtherance to the said report, the petitioner was dismissed from service in March, 1998. The petitioner filed an appeal against the said order of dismissal on 25th January, 1999, which was also dismissed. The revision petition filed by the petitioner was also rejected vide order dated 14th December, 1999. All these orders have been questioned by the petitioner in the present writ petition primarily on the ground of illegality, arbitrariness and that the order of dismissal was passed without holding any inquiry much less denovo inquiry.
34. We may notice that impugned order was passed by the Deputy Director General of Police, CRPF Gauhati-23 on 29th April, 1999 and by the Commandant 6th Battalion CRPF Chimukedima Dimapur (Nagaland) in March, 1998. Revisional order dated 14th December, 1999 dismissing the revision petition filed by the petitioner was passed by Director General, North-Eastern Sector, CRPF Guwahati. The petitioner had filed appeal/revision against the order of dismissal before the authorities at Guwahati. Even the second appeal/representation filed by the petitioner in July, 1999 was addressed to the Inspector General of Police at Shillong, who was the competent authority to take decision upon the representation. The disciplinary proceedings and all other proceedings against the petitioner were taken place at Gauwahati or Shillong i.e. beyond the territorial jurisdiction of this Court. No cause of action or part thereof has arisen within the territorial jurisdiction of this Court. Merely because the Office of the Director General, CRPF is located at Delhi would not by itself vest this Court with territorial jurisdiction. In fact it would be putting the parties to great inconvenience as all the records would have to be summoned before this Court, which are available at different places in those areas.
35. Resultantly and in view of the above ennunciated principles of law, we are of the view that this Court has no territorial jurisdiction to entertain and decide the present writ petition. The same is accordingly dismissed with liberty to the petitioner to approach the Court of competent jurisdiction. However, in the facts and circumstances of the case, the parties are left to bear their own costs.