Posted On by &filed under High Court, Rajasthan High Court.


Rajasthan High Court
Mohan Singh vs Union Of India And Anr. on 29 May, 2000
Equivalent citations: 2001 (4) WLC 41, 2000 (3) WLN 650
Author: Balia
Bench: R Balia, S Garg


ORDER

BALIA, J.

1. These two cases have been referred by the learned Single Judge to decide the issue about the territorial jurisdiction of this Court to entertain petition under Article 226 or 227 of Constitution, for raising grievance of non payment of pension to the retired personnel of Indian Armed Forces which is payable in the State of Rajasthan either under option exercised by the retired personnel or because he is entitled to receive pension at the place where incumbent desired to settle after retirement.

(2). Learned Single Judge was of the view whether in such case where a person has retired from a different State but resides and receives pension in that State, the latter State had the territorial jurisdiction, there are conflicting views of this Court, hence he referred the question as to jurisdiction to Larger Bench.

(3). In the present case the petitioner was appointed as Rifleman in Rajasthan in Rajasthan Rifles on 11th Dec. 57. He was discharged from respondent establishment. It is not even the case of respondent that the petitioner retired from any place out side Slate of Rajasthan. There is no dispute that if the petitioner is successful in his claim to pension, such pension shall be payable to him in Rajasthan.

(4). The learned Single Judge has primarily referred the case on the question of territorial jurisdiction on the ground that where the respondents authorities are not within the territorial jurisdiction of this Court, the writ petition cannot be entertained and in raising this issue a large number of decisions of this Court against Union of India in respect of ex-army personnel have been referred to by the learned Single Judge. The learned Judge has referred to some of the earlier decisions to which we shall presently advert to for culling out the principle that a case where the respondents authorities are not within the territorial jurisdiction of this Court, the writ petition
cannot be entertained. On the other hand, the learned Judge has also referred to a Bench decision of this Court in Balu Singh vs. Union of India & Ors. (1), wherein a Division Bench has opined that in cases of denial of pension to army personnels this Court has a jurisdiction to entertain a writ petition, even though the pension is to be released by the respondents outside the territorial jurisdiction of this Court, if it is to be received in Rajasthan.

(5). The only criterion with which the order under reference appears to have been influenced viz. the existence of respondent authorities, against whom a writ is sought, within the territorial jurisdiction of this Court is only one of the criteria which determines the territorial jurisdiction of this Court but is not the sole criterion. Under Article 226, when the Constitution came into force for the first time, conferred jurisdiction on the High Court of a State to issue to any person or authority including in appropriate cases in the Govt. ‘within those territories’ directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant to and certiorari or any of them for the enforcement of the right of any of the party or for any other purpose. The power to issue writs only to the authorities or the Govt. within the territories in relation to which the High Court exercises jurisdiction resulted in a position where any authority issuing order whose office was situated beyond the territory of a State and beyond the territorial jurisdiction of the Court could not be proceeded in the Court within whose territorial jurisdiction the cause of action arose or the effect of impugned action or inaction fell. In all cases against Union of India, therefore, the various High Courts of the States were held to have no jurisdiction unless the authority issuing the orders was situate within the territorial jurisdiction of the Court. A petition challenging the Central enactment could be filed only in the Punjab High Court but later on in Delhi High Court, which exercised jurisdiction in respect of the territory of the Union Territory of Delhi, where the seat of the Central Govt. was situated. This led to constitutional amendment firstly by 15th amendment of Constitution by which clause I-A was inserted in Article 226, which was later on renumbered as Clause (2) by the Constitution 42 Amendment Act. Since the 15th amendment of the Constitution, the two clauses of Article 226 which govern the territorial jurisdiction of a High Court read as under:-

“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 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 or 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”.

(6). Thus, by the aforesaid amendment, the jurisdiction of the High Court was also extended in respect of such cases cause of action for which partly or wholly had arisen within the territorial jurisdiction of the High Court, notwithstanding that the person or authority against whom the writ was sought resided or had a seal outside the territorial jurisdiction of the High Court. The resultant position is that (a) the High Court within whose territorial jurisdiction the person or authority against whom relief is sought resides or is situate, will have the jurisdiction to issue writs or direction irrespective of the place where the cause of action has arisen in respect of the reliefs
claimed; (b) so also, the High Court within whose jurisdiction the cause of action, whether wholly or in part, had arisen in respect of which the relief is sought under Article 226 of the Constitution of India, too will have the jurisdiction to entertain such petition notwithstanding the person or authority against whom the writ, order or direction is sought is not residing within the jurisdiction of the High Court. Consequently, where a Central Govt. employee serving in the State of Rajasthan is removed from service by an order made by the Authority at Delhi, the High Court of Rajasthan will have the jurisdiction to entertain the petition raising grievance about it besides Delhi High Court where the Seat of Union of India is situate. In other words, Delhi High Court will have a territorial jurisdiction because of Clause (1) of Article 226. The Rajasthan High Court wilt have jurisdiction because of Clause (2) of Article 226. It is not necessary that two conditions exist simultaneously.

(7). It is also not necessary that whole of the cause of action should have arisen within the territorial jurisdiction of the Court within the territories over which the Court is exercising jurisdiction but even if a part of such cause of action has arisen therein, such High Court shall have the jurisdiction to entertain the petition within whose territory any part of cause of action has taken place. In such cases more than one High Court can have jurisdiction to entertain such petitions, which could be exercised concurrently. Therefore, the examination of issue cannot be confined with reference to the place wherefrom the order has emanated or where the Authority against whom the relief sought is situate, but it also depends on where whose or any part of cause of action has arisen.

(8). The provision is very much akin to Section 20 of the Code of Civil Procedure determining jurisdiction of civil Courts to try the suits. Section 20 of the Civil Procedure Code reads as under:-

20. Other suits to be instituted where defendents 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

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works For gain; or

(b) an of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid acquiesce in such institution;

(c) or the cause of action, wholly or in part, arises.

Explanation-A corporation shall be deemed to carry on business at its sole or principle office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

(9). Clause (a) of Section 20, the place where the defendant voluntarily resides or carries on business or works for gain, determines the jurisdiction. That is like clause (1) of 226 whereunder also the place where the person or authority or the Govt. against whom a writ, order or direction is sought under Article 226 is situated, determines the High Court, which may exercise jurisdiction. Clause (c) of Section 20 has the amplitude of clause (2) of Article 226. Expression ’cause of action’ has been compendiously understood to mean ‘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.’ It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. In determining the question of territorial jurisdiction
where the cause of action arose, whatever defence may be set up by the defendant is not relevant. What is relevant is the grounds set forth in the plaint as a cause of action. In the oft quoted words of Lord Watson in Chand Kaur vs. Partap Singh (2).

“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 forth 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.”

(10). It not only includes facts necessary to support the claim but also the facts which entitles him to relief against defendants. It is also apparent that in order to find jurisdiction of a Court it is not necessary that whole of cause of action should have arisen within the territory of the Court over which it exercises authority. Even if only a part of cause of action arises, falls within the territorial jurisdiction of a Court, such Court shall have jurisdiction to try such matter. Where the subject matter is infringement of a right, the place where right is created as well as the place where such right is infringed shall be places where the matter can be litigated. So also in a suit arising from a breach of contract, the place where contract was entered, where the contract was breached, and where the contract is to be performed shall all be places where a part of such cause of action has arisen. Likewise, where as a result of such cause of action claim is to be money decree, the payment of money is also part of performance of obligation arising from facts antecedents thereto, the place where amount is payable also is a place where cause of action arises in part and Court exercising jurisdiction over such place shall have jurisdiction to try the suit. The genesis of this principle can be traced in Explanation III to Section 17** of Code of Civil Procedure 1882. Section 17 was fore runner of Sec. 20 of the Code of Civil Procedure 1908.

(11). The original provision merely refer to the place where the cause of action arose. Section itself was not clear whether this meant whole cause of action or any part of cause of action. This was clarified by insertion of Explanation III vide Act No. 7 of 1988, which reads as under:-

“Explanation III.-In suits arising out of contract, the cause of action arises within the meaning of this section of any of the following places, namely;

(1) the place where the contract was made;

(2) the place where the contract was to be performed or performance thereof completed;

(3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable”.

(12). The Explanation brought to the fore the principle that even at a place where any part of cause of action has arisen, the suit can be tried. It shows that (i) place where right is created viz. where contract was made, (ii) where the rights are to be exercised or obligation to be discharged viz. contract is to be performed, and (iii) where the effect of exercise of right or discharge of obligation falls viz. as a result of completion of contract money is payable, whether expressly or impliedly, all are parts of cause of action. The above explanation also shows that where money is expressly or impliedly payable, the obligation to pay money is also a part of cause of action and the place within whose territorial jurisdiction the places where money is payable is situate has the jurisdiction to entertain the suit.

(13). The question in the present case will have to be answered in light of the grounds required to be established by the petitioner to claim relief claimed by him. The grievance of the petitioner is that on completion of service on discharge from Army, he has not been paid his pension and the relief claimed is that the respondents
be directed to pay the pension. Therefore, bundle of all facts, which constitute the ground on which such relief can be given by the Court, constitute whole cause of action. If all such facts or any of which has taken place within the State of Rajasthan, this Court in Rajasthan shall have the jurisdiction to try such lis. The same cannot be denied solely on the ground that the authority which is to be directed to release the pension is not situated within the State of Rajasthan or whose office is not within the State of Rajasthan but outside the State of Rajasthan. The ultimate relief claimed by a retired personnel to claim pension is akin to a person asking decree for payment of money due to him. The principle in respect of such suits is well settled that where a suit is filed on contract and claim to payment of money is laid, the place where money is payable is a place where par! of cause of action arise and the Court exercising jurisdiction over such place has the jurisdiction to entertain such suit.

(14). Applying the above tests, where relief is laying claim to pension on completion of employment with the employer, it also is a claim to money which is periodically payable to an employee on completion of contract of service or under condition of service governed by any statutory rules, on his exit from the service. All the facts required to be proved for claiming the relief which include entry in service, exit from service, completion of period of qualifying service as per rules, and his right to receive pension constitute cause of action before relief can be granted. Courts exercising jurisdiction in respect of any part thereof will have the jurisdiction to entertain the petition in respect of claim to pension under Article 226 (2) i.e. to say the place where an incumbent has entered the service, or the place wherefrom the incumbent has made his exist from the service or the place where he has right to receive the pension after such completion of service, are all the places where part of cause of action has arisen and at any of such places the petition to claim pensionary benefits is maintainable. In all the cases to which reference has been made in connection with the question of territorial jurisdiction, there is no deviation from the principle. The Courts on examining the fact has answered the question on the basis whether the cause of action has arisen within the territorial jurisdiction of the Court where the authority against whom a relief was claimed was not situated within the territorial jurisdiction of that Court.

(15). The learned Judge has referred to the decision of Supreme Court in United Commercial Bank vs. Their Workmen (3). This was a case which had arisen prior to 15th Amendment of Constitution. For the reason already discussed above, because of charge in the Scheme of Article 226 since then, the judgment on this issue is no more relevant.

(16). The learned Judge has referred to two decisions of the Supreme Court in this connection. One is Kesar Singh & Ors. vs. Sadhu (4). A perusal of this case goes to show that it has no bearing on the question of territorial jurisdiction of the Court to entertain any proceeding. The case related to executability of the decree passed in 1924 for possession of the lands in question on the basis of the custom which was then prevalent. In 1973, almost half a century later, by an amending Act of 1973, the customary rights in Punjab were abolished and the amendment had the retrospective effect so as to affect the pending proceedings on which claims were founded on customary rights. As on the date the amendment Act 73 has come into force, the execution proceedings were pending for executing the decree passed in 1924. It was in the aforesaid circumstances, the Court held that because of the subsequent amendment in law, the basis on which the decree was founded has been taken away, it was open for the executing Court to entertain an objection as to the validity of decree in the light of amending provisions. It was not a case in which question about the jurisdiction of the Court to entertain a litigation as a matter of jurisdiction on the basis of its territorial authority was in issue or decided by the Court.

(17). The other decision which has been referred to by the learned Judge in State of Gujarat vs. Rajesh Kumar Chimanlal Barot & Anr. (5). This case also has no bearing
on the present controversy. It was a case in which National Consumer Disputes Redressal Commission found that the Court had no jurisdiction over the subject matter still did not interfere with the order passed by the State Commission upholding the right of the Panchayat to benefit the subsidy from the State. On appeal, the Supreme Court held:

“We find this very difficult to appreciate. If a court does not have jurisdiction, it does not have jurisdiction, regardless of the fact that one of the parties involved is a Gram Panchayat or the period involved is very short or the amount involved is very small. If a court does not have jurisdiction, it is the obligation of the appellate court so to hold and to set aside the order under appeal.”

(18). Learned Judge has also referred to rule as a general principle that place of communication if any impugned order or correspondence is not relevant for jurisdiction of any Court. The question whether service of notice or any communication becomes part of the cause of action or not in each case depends on facts of that case and in the context of the subject matter of the suit, as will be seen presently, referring to the various decisions.

(19). We may here usefully refer to a decision of the Bombay High Court in Damomal Kausomal Raisinghani vs. Union of India (6), wherein the Court held that where the impugned order is made by an authority in other State outside the territorial jurisdiction of High Court, but has become effective in another on its communication, the latter High Court can exercise jurisdiction in respect of such matter as part of the cause of action had arisen thereunder.

(20). In Umasankar Chatterjee vs. Union of India (7), the Calcutta High Court was considering a case where the services of an employee of Union of India were terminated by an order of removal. The order of removal was served on the petitioner at Calcutta. As the principle is well settled that an order of termination or removal becomes effective only on communication of the order, on the question of jurisdiction of the Calcutta High Court to entertain the petition under Article 226, the Court said;

“The infringement of rights gives rise to a cause of action and, consequently, the right to sue. Where it is the case of the petitioner in the instant case that his right has been infringed by the impugned order of removal, the order of removal, therefore, undoubtedly gave rise to a cause of action for the petitioner to institute an action for the establishment of his right to be in service. So long as the order was not effective there was no question of accrual of a cause of action or the right to sue. But the moment it became effective there was such accrual of cause of action or the right to sue. The impugned order of removal having become effective in Calcutta when it was received by the petitioner, a part of the cause of action must be held to have arisen in Calcutta within the jurisdiction of the Court”.

(21). Thus, the Calcutta High Court look the view that the order of termination becomes effective on service of such order on the incumbent. Therefore in a claim to relief against termination order, the place of communication of such order becomes relevant consideration for deciding place of suing, however, we are not considering in this case a claim against termination. It is a case to claim consequential claim which became effective on termination, and the place where effect of the order fell becomes the place where the cause of action arose.

(22). Similar view was expressed by a Division Bench of the Gujarat High Court in MFI (India) Ltd., Ahmedabad vs. M.D. Juverkar (8), Ahmadi, J. (as his Lordship then was) speaking for the Court, said:

“Passing of a dismissal order is not enough, it cannot become effective unless it is published and communicated to the concerned
employee. If an order of dismissal remains on the file of the authority passing it, it would not have effect unless the concerned employee is informed about the same and told not to report to work. One of the essentials of an effective dismissal order is communication thereof to the concerned employee and this constitutes an important link in the chain of events constituting the cause of action.”

(23). It was also a case in which order of termination of service of an employee was under challenge. The employer Modem Food Industries Limited having its registered office at New Delhi had issued the order of termination at Delhi which was sent to Calcutta office where the employee was serving. The employee being on leave and at Ahmedabad at the relevant time it was served upon the employee at Ahmedabad. As the order of termination has become effective at Ahmedabad on its service. The Court found that because the part of the cause of action had arisen at Ahmedabad, the employee was competent to file writ petition before the Gujarat High Court challenging the order of termination. We may notice the aforesaid two challenges arose from the order of termination and the claim was that the termination order was illegal and the petitioners had claimed right to continue in service. In both these cases the Court adopted the theory that part of the cause of action arose where the order became effective. Though the Courts were not considering the question whether a suit to lay claim for pension could be filed at the place where becomes payable to the petitioner on completion of his term of employment, whether the Court at the place where the pension becomes payable has jurisdiction or not, on principle the aforesaid decisions also support the conclusion to which we have reached.

(24). In State of Rajasthan vs. Swaika Properties (9), the challenge was to the acquisition proceedings initiated by the Rajasthan State Govt. in respect of the land situated at Jaipur, the notice of acquisition proceedings was served on the registered office of the company in Calcutta. The Company challenged the land acquisition proceedings initialed in Rajasthan in respect of the land situated in Rajasthan by State of Rajasthan in the High Court of Judicature at Calcutta. The Court held that no cause of action arose within the territory of Calcutta which could confer jurisdiction on the Calcutta High Court. The Court stated, about the effect of service of notice at Calcutta, as under:-

“The answer to the question whether service of notice is integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The Notification dated February 8, 1984 issued by the State Govt. under Section 52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Govt. free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Jaipur under Section 52(2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution, the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench, where the cause of action wholly or in part arose.”

(25). Thus, applying the test of the place of cause of action, the Court found on facts that the cause of action having commenced and completed within the State of
Rajasthan on publication of the notice in the official gazette, the subsequent service of notice on the company at Calcutta did not become integral part of the cause of action, and therefore, Calcutta Court would not get the jurisdiction merely because service of the notice of the acquisition proceedings at Calcutta in respect of land acquisition, which already had become effective in Rajasthan.

(26). In Subodh Kumar Gupta vs. Shrikant Gupta (10), the question of a civil Court situated at Chandigarh to entertain a suit for dissolution of the firm and distribution of assets arose in the following circumstances. The plaintiff had filed a suit for dissolution of the firm carrying on the business in the name and style of M/s. Rajaram & Brothers of which he claimed to be partner alongwith his father, brothers and one K.K. Jindal. Each partner had 20% share in the profits and losses of the firm and the partnership was one at will. The head office of the firm was situate at Bombay where it was registered with the Registrar of Firms. Its factory was situate at Mandsaur where the father Rajaram Gupta lived with his sons and attended to the partnership business. The plaintiff also was residing at Mandsaur till 1974 when he sifted to Chandigarh. After he shifted to Chandigarh, he visited Mandsaur off and on in connection with the business of the firm. His case was that after he shifted to Chandigarh, he used to call for and receive statements of accounts of the business carried on at Mandsaur and he also received and booked orders for the firm at Chandigarh which he forwarded to Mandsaur for execution. According to him, the branch office of the firm was at Chandigarh as is evident from the stationery of the firm. The Court found that the averments in the plaint does not say that any of the defendants were involved in the business carried on at Chandigarh, the plaint is quite vague as to the type of business activity carried on and also does not say whether it was with the consent of the other partners or not. The Court on facts found that it, therefore, appears to us that no part of the cause of action arose within the territorial jurisdiction of the Chandigarh Court.’ So far as the assertion of the plaintiff that he was attending to the business of the firm at Chandigarh, the Court said that mere bald allegation that he was having a branch office at Chandigarh will not confer jurisdiction unless it is shown that a part of the cause of action arose within the territorial jurisdiction of that Court. The Court upheld the decision of the learned Single Judge of Punjab and Haryana High Court finding that the civil Court at Chandigarh had no jurisdiction to register it as the firm situated at Bombay and having its factory at Mandsaur. Thus, the case turned on considering the facts constituting cause of action in peculiar facts and circumstances of the case.

(27). Reference has also been made to Board of Trustees for the Port of Calcutta vs. Bombay Lour Mills (11). It was a case which related to claim to waiver of port charges and release of the goods seized by the Board of Trustees of the Port of Calcutta. The consignment of imported goods by the plaintiff had been unloaded at Calcutta Dock, the respondents’ representations to the Port Trust Authority to waive the port charges and release the goods were refused by the Board of Trustees of the Port at Calcutta. The suit was filed for waiver of the port charges and release of goods in the District Court, Bharatpur (Rajasthan). Obviously no part of the cause of action relating to the seizure of the goods by the Port Trust of Calcutta which was unloaded at Calcutta for non-payment of port charges had arisen within the territory of Rajasthan. The Court found that the cause of action had arisen at Calcutta when the goods were imported and were unloaded at Shed No. 3, Netaji Subhas Docks, Calcutta and liability of the payment had also arisen on its failure to pay such charges at Calcutta. The respondent instituted the suit at Bharatpur for quashing the order of Port Trust Authority, Calcutta, and release of goods. This case also turned on the facts of its own where every bit of cause of action commencing from the import, unloading of goods, seizure of the goods, levy of the port charges, liability to pay charges had arisen at Calcutta and the payment was also to be made at Calcutta only. On success of the suit, the goods were also to be released and handed over to plaintiff by the defendants. Port Trust authorities at Calcutta and not at Bharatpur. In these circumstances, the aforesaid case also
does not deviate from the principle that the place where whole or part of the cause of action arises, gives jurisdiction to the Court within whose territory such place is situate. Whether cause of action has arisen within the territory of the particular Court will have to be determined in each case on its own facts in the context by the subject matter of the litigation, and relief claimed.

(28). In Oil & Natural Gas Commission vs. Utpal Kumar Basu (12), the Apex Court had again an occasion to consider the issue. The facts of the case were that Oil & Natural Gas Commissioner, a Govt. of India Undertaking, was having a gas based plant at Hazira in State of Gujarat. The Engineers India Limited acting as consultant for Oil & Natural Gas Commission issued an advertisement dated 27.6.1991 in the leading newspapers of the country including those in circulation in West Bengal calling for lenders for setting up of a Kerosene Recovery Proceeding Unit at the Hazira Complex in Gujarat. According to the said advertisement the tenders containing offers were to be communicated to Engineers India Limited at New Delhi. NICCO having its registered office in Calcutta, read and became aware of the lender notice printed in the Times of India circulated within the jurisdiction of the Calcutta High Court, offered a lender for the contract. NICCO’s bid was rejected on the ground that it did not fulfil the requisite experience. After initial consideration, NICCO was not recommended for short listing by the Tender Committee and the representation of NICCO was rejected to reconsider it at New Delhi. A final decision was taken by the Steering Committee at Delhi, pursuant whereto it was decided to award the contract to M/s. CIMMCO Ltd. Against rejection of its lender and award of contract to CIMMCO, a petition was filed in the High Court of Calcutta within whose jurisdiction the petitioner had come to know about the tender invitation. The Calcutta High Court entertained the petition and granted interim relief against which appeal was preferred before the Supreme Court. The Court reiterated after referring to the provisions of Clause (2) of Article 226, as under:-

“….On a plain reading of Article 226 it becomes clear that 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 scat 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. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court.”

(29). Dealing with the principle, the Court found in the case at hand:

“From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to proposed, to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or lender from its Calcutta office and revised the rates subsequently. When it learnt that it was considered ineligible it sent representations, including fax messages, to EIL, ONGC, etc., at New Delhi, demanding justice. As stated earlier, the Steering Committee finally rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi on 27.1.1993. Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the lenders should be submitted to EIL at New Delhi; that those would be scrutinised 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 Hazlra 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 15.1.1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27.1.1993. 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.”

(30). Thus considering the entirely of he facts, the Court found that no part of the cause of action arose within the territories over which the Calcutta High Court was exercising jurisdiction.

(31). In the matter of construction contracts, the Court in a short order in Aligarh Muslim University vs. Vinay Engineering Enterprises (P) Ltd. (13), had said that the contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, even the contracts provided that in the event of dispute, the Aligarh Court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondents was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none…”

(32). All the aforesaid cases clearly lay down that in each case the question has to be determined on the facts of each case where the authority against whom the relief is sought is not situated at a place over which the High Court exercises jurisdiction whether the whole or any part of the cause of action had arisen-within its territories and in each case the question turns upon reaching the conclusion on the totality of the facts emerging from the pleadings, whether whole or part of the cause of action had arisen within the territorial jurisdiction of the Court whose authority has been invoked.

(33). A distinction has to be made between a case for seeking enforcement of rights while in service or for continuance in service where the effect of any adverse order directly falls at the place where the person is serving or the order is communicated in cases the order becomes effective only on communication, on establishing the right, the payment of emoluments also is receivable at the place where the person is serving and therefore the cause of action arises ordinarily at the place where the person is serving; from the case of claiming post retiral benefits. After retirement, a claim to pensionary benefits is not necessarily linked with the place of service because it arises on conclusion of the employment, the place where the pension is receivable also becomes the place where part of the cause of action arises, on the well established principle that court within whose jurisdiction money is payable, it has jurisdiction to entertain suits to claim such money.

(34). Coming now to decisions of this Court on the subject.

(35). In Ex. Sepoy Kana Ram vs. Union of India (14), an unreported decision of this Court, the Court was considering the challenge to the order of declaring the petitioners permanent disablement and discharged him from service. While the Court has referred to the principle as under:

“Article 226(1) of the Constitution of India empowers the High Court to issue a writ to a person or Authority who is within the territories subject to the jurisdiction of the High Court. In the instant case, the
respondents neither reside nor are located within the territorial jurisdiction of this Court; nor the case falls within the ambit of Clause (2) of Article 226 as no part of cause of action arose within the territorial jurisdiction of this Court.”

(36). After referring to aforesaid principle, the learned Judge concluded:

“In the instant case, this Court is incompetent to entertain the petitioner, for want of jurisdiction, and hence cannot proceed with the merit and likewise other issues.”

(37). However, in the entire judgment, we do not find any finding as to the various facts on the basis of which it could be discerned where entire cause of action or any part of it had arisen. It further appears that the petition was primarily challenging the order of discharge terminating his services and claim to pension was only incidental which also had been denied. No advertence has been made where the pension was payable, if the petitioner was found antitled thereto. Therefore, the decision in Kana Ram’s case, in our opinion, does not lay down on principle that even when on retirement by discharge, pension is payable within the State of Rajasthan, the same is not triable in Rajasthan.

(38). In Kana Ram’s case reference has been made to a decision said to be identical in Maharaj Singh vs. Union of India (15), where the Court has held that where discharge order has been passed outside the State and no cause of action has arisen within the State, it lacks jurisdiction to entertain the petition and the writ petition was dismissed. Obviously this refers to a question of discharge order becoming effective outside the State. It does not have any reference to the question about pension which is receivable by the petitioner within the State of Rajasthan. The case related to imposition of punishment. The effect of order made outside State also fell outside the State at a place wherefrom the services of petitioner was terminated. The analogy with Maharaj Singh’s case is not parallel to the present case nor the same offered a parallel in Kana Ram’s case, if is related to claim to pension payable in Rajasthan then reliance on Maharaj Singh’s case was misplaced and the same was wrongly decided.

(39). Moreover, in the face of a Division Bench decision which exercises appellate jurisdiction over decision of Single Bench, cannot continue to hold field as a precedent even if not specifically referred in the order passed by the Division Bench. It cannot be considered as a decision of a co-ordinate bench having equal binding force. In such event, the law enunciated by Division Bench binds all jurisdictions in the State and decision of a learned Single Judge contrary to it must be deemed to have been over-ruled. In such eventuality the Division Bench decision does not become per in curium, for the purpose of drawing a parallel with an earlier decision of a Court over which it exercises appellate jurisdiction so as to hold existence of two conflicting decisions. If that where so, in the case of Jora Ram’s case which has been decided by a common judgment by the Single Bench alongwith another case filed by Chatra Ram, when only one appeal was filed on behalf of Jora Ram in one petition, and no appeal was filed by Chatra Ram, it can be argued that as decision in Chatra Ram has not been challenged in appeal, the same has become final, hence that case operates as a precedent contrary to decision in Jora Ram’s case decided by Division Bench inasmuch as a matter of law parties to petition in Chatra Ram’s case will be bound by decision rendered therein. We are afraid, this is not so, A finality of decision may bind the parties, as a decision but as a precedent it can be used only as law correctly explained so long a decision by a Court of superior jurisdiction does not hold otherwise. As a precedent laying proposition of law in the hierarchy of courts, a decision by a superior jurisdiction prevails over a decision by inferior jurisdiction in the matter.

(40). Moreover, we are of the opinion that decision in Kana Ram’s case itself is per in curium. The case of Kana Ram was decided by learned Single Judge on 13.1.98. We shall presently refer to two earlier decisions of this Court, attention of the Court to
which was perhaps not invited while deciding Kana Ram’s case. One by a learned Single Judge, which is a decision by a co-ordinate bench and binds another co-ordinate bench, and in case there is a dissent it is required to be referred to larger bench, and another decision of a Division Bench of this Court in Balu Singh’s case, which has been referred to in the order of reference holding that in the case of a retired personnel of armed forces, if the pension is receivable by him in any place in Rajasthan, the High Court of Rajasthan shall have the jurisdiction to entertain such petition notwithstanding the place wherefrom he retired is situated outside the State or the authorities who are to make orders for determining pension are situated outside the State.

(41). Learned Judge in his order of reference has referred to a Bench decision of this Court which directly deals with the issue of territorial jurisdiction of this Court in respect of claim to pension which is payable within the State of Rajasthan in Balu Singh vs. Union of India & Ors. (supra). It was a case in which claim to pension was laid by an Ex. Member of the Rajput Rifles. He was employed in the army and was initially enrolled in the Company Xth Bn. Shekhawati Vth Rajput Rifles in 1942. While in service, his eye was injured and he was transferred to Army Ordnance Corps and ultimately he was retired in the year 1957 from Secundrabad. He was not paid any pension. His representations were dismissed. A writ petition was filed in this Court for the relief against wrongful denial of the pension. A plea was raised on behalf of the respondents that the Chief of the Army Staff, New Delhi, Chief Controller of Defence Accounts (Pension), Allahabad and the Officer Incharge Army Ordnance Corps, Secundrabad all reside outside the jurisdiction of this Court, and therefore, this Court had no jurisdiction to entertain the petition. The plea found favour with me learned Single Judge of this Court. On Special Appeal, the Court considering the two decisions of the Supreme Court in Oil & Natural Gas Commission vs. Utpal Kumar Basu & Ors. (supra) and State of Rajasthan & Ors. vs. M/s. Swaika Properties & Another (supra), and referring to the earlier decision of this Court in Prem Cables Private Ltd. (supra) held:

“Whether any part of cause of action has accrued within the jurisdiction of a Court would depend upon the facts and circumstances of the given case. In this case, where the appellant was recruited in Rajasthan, pension, if payable, was to be paid in Rajasthan and the refusal to pay the pension was also communicated within the jurisdiction of this Court, then irrespective of the fact that the respondents do not reside within the jurisdiction of this Court, the writ petition can be entertained by this Court as a part of cause of action has accrued there.”

(42). This completely answers the question referred to by the learned Single Judge directly and with which we are in agreement.

(43). A learned Single Judge of this Court in Smt. Pap Kanwar vs. Union of India & Ors. (16) considering the case of claim to family pension by widow of a person of the Indian Army was sought to be defeated in this Court on the ground of territorial jurisdiction. The plea was raised on behalf of the Union of India that this Court had no jurisdiction to entertain the case because the pension was to be sanctioned by CCDA(P) at Allahabad, the records were to be produced or searched by the Police Directorate at Calcutta and the ultimate authority is Army Headquarter at Delhi. According to Union of India, this Court had no jurisdiction to entertain this case. The Court after referring to an unreported decision in D.B. Civil Special Appeal No. 64/94 (referred to above), said:

“Article 226(2) provides that the power under Article 226 can 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 Govt. or authority or residency of such persons is not within those
territories. There is no doubt that if the petitioner entitled/eligible for payment of family pension, it will have to be paid at her residence, her husband was getting pension after retirement within the jurisdiction of this Court. In such circumstances, it cannot be said that no part of cause of action has arisen within the jurisdiction of this Court. The objection as to the territorial jurisdiction of this Court.”

Both these decisions were rendered prior to decision in Kana Ram’s case but do not find mention in that decision.

(44). The learned Judge has then referred to decision rendered by the learned Single Judge in Jora Ram vs. Union of India (17), alongwith in Chatra Ram’s case which has been set aside in appeal. A decision which has been reversed by a Bench of this Court cannot be treated as precedent. It is the decision of Division Bench that is binding on all courts in the State including any Judge sitting singly. The Division Bench in D.B. Civil Special Appeal No. 415/98 decided on 9.7.98 while reversing decision in Jora Ram’s case has followed the decision of earlier Division Bench in Balu Singh’s case (supra) by holding that this Court having territorial jurisdiction over that place where the pension is payable has jurisdiction to entertain the petition in respect of the claim to pension by an Ex.Army personnel notwithstanding any of the respondent authority against whom relief is sought is not situated within the State of Rajasthan.

(45). Our attention has also been invited to yet another Division Bench of this Court in Ex. Capt. (IC-28427) C.R. Dudi vs. Union of India and others (18), decided on 28.7.1997 from Jaipur Bench, Jaipur, which as informed to us by counsel, affirmed by Supreme Court in as much as Special Leave Petition filed has been rejected on 2nd March 1998. The case too relates to grievance raised by a member of defence personnel, who had retired from Jallandhor, wherefrom he has sought voluntary retirement. Like in present case he was not given benefit of retiral benefits. He was residing at Jaipur, after retirement. He approached Rajasthan High Court for redress against non determination and payment of retiral benefits. A learned Single Judge rejected the writ petition on the ground that this High Court had no territorial jurisdiction to entertain writ petition because he retired from State of Punjab. The Division Bench hearing the appeal over ruled the objection about territorial jurisdiction and allowed the appeal with following observation:

“We are of the view that since the appellant had served the country as a personnel of the defence forces for a period of more than 20 years and had sought voluntary retirement from the defence service and which was accepted by the respondents on completion of the qualifying period of service he should not have been denied the consequential benefits of pension, gratuity and other post retiral benefits as found admissible to him in accordance with the rules, we are further of the view that the learned Single Judge was not right in declining the relief to the appellant on technical ground of matter of jurisdiction of the court which should not have been a factor to be reckoned with particularly when the question of issue was only with regard to the payment of consequential benefits to the appellant. We are further of the view that since the appellant was recruited in Defence Service in the State of Rajasthan and had retired from Battalion Rajputana Rifles, he was entitled to payment of consequential benefits by the respondents in the State of Rajasthan.”

(46). The ratio applies to the facts of present case, and supports the territorial jurisdiction of the Court to entertain this petition.

(47). In this connection, it is relevant to refer to the decision of Rajasthan High Court in Prem Cables (P) Ltd. vs. Assistant Collector, Customs (19). It was a case in which the petitioner had laid claim to the refund of custom duty paid by him under
wrong orders. The claim to refund was rejected by the custom authorities situated outside the State of Rajasthan. In response to the preliminary objection raised about the territorial jurisdiction of this Court to entertain petition, the Court opined that the matter pertains to recovery of illegal tax and refund thereof, and therefore, the common law rule applies since refund is to be made to the petitioner whose registered office is at Pipalia Kalan, this Court has jurisdiction to entertain and decide the writ petition. The Court finding that the orders in question namely the Principal Appraiser of Customs, Bombay dated January 30, 1968, Appellate Collector of Customs dated April 4, 1968 and the Commissioner (Revision Applications) Govt. of India dated Nov. 28, 1959 had all been addressed to the petitioner at Pipalia Kalan (Rajasthan) and they were received by the petitioner at Pipalia Kalan in Rajasthan giving rise to remedy against the part of cause of action which arose within Rajasthan and therefore the Rajasthan High Court held jurisdiction to entertain the petition. The ratio of this case is also nearer home.

(48). The principle is now settled as discussed above, emerging from large number of decisions that ‘payment of money under contract’ is part of the performance of the contract and will furnish a cause of action, consequently the place where the money is expressly or impliedly payable will be a place where a part of the cause of action arises. Obviously, on this principle, if in a matter arising under the contract, the money is payable by one party to another at any particular place either by express term of the contract or by implication the place where money is payable also given the jurisdiction to the Court exercising authority over it.

(49). Another Division Bench decision to which reference has been made is Ex. Sepoy Govind Ram vs. Union of India (20), decided on 22.7.94, which is a short one, reads as under:-

“The initial order was passed by the authorities at Allahabad (U.P.) and the last order was passed by the authorities sitting in Delhi. To seek the quashment of those orders, writ will lie either in the Allahabad High Court or Delhi High Court. This Court has no jurisdiction. We agree with the order passed by the learned Single Judge. Dismissed.”

(50). A bare perusal of the order shows that the order refers to the order making authority situated outside the State but does not take notice of sub clause (2) of Article 226 where a Court within whose jurisdiction whole or any part of cause of action has arisen also has the jurisdiction. In our opinion, the aforesaid decision which does not refer to facts disclosing where cause of action had arisen, cannot be held to be an authority for the proposition that where whole or any part of the cause of action has been shown to take place within the territory of Rajasthan still this Court would have no jurisdiction. Moreover, from the order quoted above, it appears that the Court has considering merely the question of quashing of the order and it was not considering the question of right to receive pension by the petitioner, Govind Ram’s case is of little help to oust the jurisdiction in all circumstances in the matters of claim to pension where the pension is payable within the State of Rajasthan as no such principle was been discussed or laid down in the said case. A case can be looked as precedent only on the ratio that it decides and not upon question which it has not decided. A decision as a precedent cannot be equated with principles applicable to Constructive res-judicata. The order of the Court nowhere shows that it has considered the question of jurisdiction on the basis of place where payment of pension was to be made and where the ex-employee was to receive it.

(51). Thus, there are as many as four decisions of this Court out of which three are Bench decisions of this Court viz. in Balu Singh’s case, Jor Singh’s case and C.R. Dudi’s case holding in favour of petitioners on the issue of jurisdiction of this Court to entertain petitions for relief to claim pension to ex. serviceman, whose pension is
payable within Rajasthan, challenge o one of which failed before Supreme Court also. The decision in Govind Ram’s case, as discussed above do not lay down any principle contrary to what has been laid down in other cases. Kana Ram’s case, wherein the learned Judge has not entertained the petition, we have already noticed that the facts constituting cause of action are not clear from Kana Ram’s case so as to relate the ratio with the fact of the case. However, if Kana Ram’s case lays down principle contrary to what was stated in Pap Kanwar’s case and Balu Singh’s case, the same is wrongly decided. For the reasons already stated, it cannot be considered as a precedent being per in curium. We are of the view that place where under contract of service or relevant rules pension is payable to and receivable by the retired personnel too is a place where a part of cause of action arise and court exercising authority over such place has territorial jurisdiction to entertain such claim.

(52). In view of aforesaid, on our own conclusion is in agreement with principle enunciated in three earlier Bench decisions of this Court viz. Balu Singh’s case, Jora Ram’s case and C.R. Dudi’s case and with Single Bench decision in Pap Kanwar’s case. We are also of the view that there does not really exist any conflict of opinion between different judgments of this Court, having binding force, which required resolution.

(53). Even if we were to hold a different opinion, there are no imperative reasons to deviate from settled proposition by a chain of decisions of this Court. We are tempted to refer the dicta of Supreme Court in Nirshi vs. Sudhir Kumar (21). It was a case in which a Full Bench of Patna High Court differing from the view taken in a series of earlier decisions of Patna High Court as well as the High Court of Calcutta has held that the provisions of Bihar Tenancy Act do not apply to homestead. The Court reversing decision of Full Bench of Patna High Court spoke through Hegde J.

“In law finality is of utmost importance unless so required in public interest. Question of law firmly settled by a long course of decisions should not ordinarily be disturbed…..The High Court was not justified in reopening the issue.”

(54). So far as this Court is concerned, we have seen that by a chain of decisions of this Court the question of jurisdiction of this Court to entertain the claims of retired army personnel to receive pension, which is receivable at any place in Rajasthan is settled in favour of jurisdiction of this Court. No decision directly taking a contrary view has been placed before us, either of this Court or of any other Court. We in the circumstances see no reason to take a different view on the principle of stair decisions also.

(55). We, as a result of above discussion answer the reference that a claim to pension the place where the petitioner is entitled to or eligible for payment of pension within the territorial jurisdiction of this Court, on such claim being established, part of cause of action arises within this Court and therefore, this Court has the jurisdiction to entertain such petitions. In the present case before us there is no dispute that, pension if ultimately found to be payable is receivable by the petitioner in Rajasthan. Hence, on the aforesaid discussion, this Court has jurisdiction to entertain and decide the petition.

(56). We have not referred to other decisions noticed by the learned Single Judge in connection with the consequence of an order passed by the Court having no territorial jurisdiction, as the said question does not arise for consideration in this reference and we are called upon to decide such an issue in this reference.

(57). The matter may be placed before the appropriate Single Bench for considering merits of the petition on 6th July 2000.


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