JUDGMENT
V.A. Mohta, J.
1. Ishwarlal Gunderia, a resident of Khamgaon, District Buldana, has by this Habeas Corpus Petition under Article 226 of the Constitution, challenged the order of detention passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (“the COFEPOSA Act”) against his son-in-law Haren Choksey – a dealer in imported cars.
2. The detenu is a permanent resident of Bombay. The order of detention dated 30th January, 1989 is served on the detenu on 3rd February, 1989. This petition filed on 1st March, 1989, came up for preliminary hearing on 3rd March, 1989 on which date rule returnable on 17th April, 1989 was issued. In the return filed on behalf of respondents Nos. 1 to 3, preliminary objection has been raised – to which our attention was drawn before the hearing on merits commenced – that Nagpur Bench should not entertain this petition since neither a seat of the detaining authority – the Joint Secretary to the Government, of India, Ministry of Finance, Department of Revenue, New Delhi – is within Vidarbha Region nor has any part of cause of action arisen within that area.
3. Having heard parties at length on this issue, it seems to us that the preliminary objection deserves to be upheld. Here are our reasons :
4. Undisputed positions are :
The detenu is a permanent resident of Bombay. The detention order was served on him at Bombay. He is at present lodged in a Bombay Jail. The alleged objectionable activities in the transactions of imported cars had taken place at Cochin and Delhi. Detaining Authority has a seat in New Delhi. The sole justification for filing this petition in Nagpur Bench is the residence of the petitioner – a close relative of the detenu in Khamgaon, district Buldana, which is in Vidarbha Region. Objection about territorial jurisdiction has been raised at the first available opportunity and the petition has come up for hearing within about six weeks of its filing.
5. Now, it is not in dispute that seat of Detaining Authority is not within territorial jurisdiction of Bombay High Court and hence Article 226(1) is not attracted. Is Article 226(2) – which deals with cause of action – attracted is the crucial question. Our attention was drawn by the learned counsel for the petitioner to the case of Nitin Industrial Association v. State, in which it is held that cause of action does not attract jurisdiction under Article 226 and that Section 41 of the Bombay Reorganisation Act, 1960 (under which Nagpur Bench is constituted) and Chapter XXXI of the Bombay High Court. Appellate Side Rules, 1960 (which deal with territorial jurisdiction of Nagpur Bench over matters arising in the judicial districts of Vidarbha Region) cannot override or abridge jurisdiction and power conferred under Article 226 on the High Court as such.
6. It is lastly contended that ratio of that decision is that in the matter of writ petitions under Article 226, such objections should not be entertained at the stage of final hearing. We have carefully gone through the said decision. Such is not its ratio. On the contrary, it is observed :
“Ordinarily we are extremely slow in entertaining such matters which are required to be entertained and tried at Bombay, but in the peculiar facts and circumstances of this case, when the matter has already been admitted as back as on 25-9-1984 and if we may say so we have decided to hear and decide this matter while sitting at Nagpur.”
Thus, it will be seen that objection was not entertained in that case at final hearing stage because of its peculiar background and time factor.
7. Undoubtedly, there are observations about cause of action being an irrelevant matter under Article 226 but they are based upon two Supreme Court decisions : Election Commission, India v. Saka Venkata Rao, and In Re The Kerala Education Bill, 1957, AIR 1958 SC 956. These Supreme Court decisions interpreted Article 226, as it stood before the Constitution (15th Amendment) Act, 1963, by which sub-Article 1A (presently numbered as 2) was added. The historical background behind the above amendment has been the consistent view taken by the Supreme Court in cases like the above two and the case of Lt. Col. Khajoor Singh v. Union of India, . In Saka Venkata Rao (supra) it was observed (at p. 213) :
“The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories in relation to which the High Court exercises jurisdiction.”
In In re The Kerala Education Bill, 1957 (supra), it was observed (at p. 986, 987) :
“Article 226 of the Constitution confers extensive jurisdiction and power on the High Courts in the States. This jurisdiction and power extend throughout the territories in relation to which the High Court exercises jurisdiction. It can issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs of the nature mentioned therein for the enforcement of the fundamental rights or for any other purpose.”
The above observations have been quoted and relied upon in Nitin Industrial Association, (supra).
8. The concept of “cause of action” has been introduced in Article 226 by the Fifteenth Amendment because of the consistent views taken by Courts that under Article 226(1) cause of action was an irrelevant factor and that only Punjab High Court had jurisdiction with relation to Central Capital Government and other authorities whose seat is in Delhi which was then within territorial jurisdiction of that High Court. It was discovered that such a situation involved great hardship to the citizens. As the preamble of the Amending Act indicates, its purpose was to confer jurisdiction upon different High Courts also on the basis of cause of action despite the seat of Govt. or authority or residence of person not being within their territories. It appears that attention of the Bench was not drawn and reliance was placed upon interpretation of the Supreme Court of original unamended Article 226. Thus, the conclusion about irrelevancy of cause of action reached therein in rendered per incuriam.
9. Section 41 of the Bombay Reorganization Act or the Appellate Side Rules cannot and do not curtail or abridge constitutional rights under Article 226. They merely regulate the manner of its exercise and as rightly pointed out in Nitin Industrial Association (supra), they are designed to meet administrative requirements and convenience.
10. What is “cause of action” ? The expression is neither defined by the Code of Civil Procedure nor by the Constitution, but its meaning has been judicially considered in various decisions. The following definition given in Cook v. Gill, (1873) LR 8 CP 107, is the most accepted and widely acclaimed :
“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.”
Thus, the cause of action would differ from case to case and enactment to enactment. Is the place of residence of a close relative of a COFEPOSA detenu by itself a cause of action in the matter of a challenge to the order of detention by a writ petition under Article 226 ? We do not think so. That would be too far fetched. However, there can be no about the place of detention providing a cause of action. That place in the instant case is Bombay and hence. High Court at Bombay will have jurisdiction to entertain this petition.
11. We, therefore, uphold the poreliminary objection and direct forthwith transmission of the papers and proceedings to Bombay where the Registrar shall place the matter before the appropriate Bench. By consent of parties, we fix 24th April, 1989, as the date for appearance. Rule accordingly.
12. Order accordingly.
