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Judgment
R.S., CJ
The prayer in WP(Cril) No. 12 of 2018 is as follows:-
"In the facts and circumstances of the case as stated above Your Lordship be pleased to issue a writ in the nature of Habeas Corpus ad subjiciendum or any other appropriate writ or writs directing the respondents to produce the mortal remains of Shri Gurumayum Jiteshwar Sharma @ G.M Changjou @ Gypsy who was arrested from Dimapur, Nagaland in violation of the rights and liberty guaranteed by the Constitution of India and also in contravention of the statutory provisions of the Criminal Procedure Code, 1973.
To direct a probe to investigate the cold blooded murder of Gurumayum Jiteshwar Sharma of Nagamapal Singjubung Leirak by an independent investigating agency like CBI or by constituting an Independent special investigation team (SIT).
To punish the Indian Army officials and other associates involved in the aforementioned cold blooded murder for which the names are tentatively mentioned at para No. 19 above."
[2] The prayers in WP(Cril) No. 13 of 2018 are as follows:-
"(ii) to issue a writ in the nature of Habeas Corpus and Mandamus and / or any other appropriate Writ directing the Respondent nos. 3, 4 and 5 to produce the body of Petitioner's son and hand over the body to the Petitioner;
(iii) to issue a writ in the nature of Mandamus or any other writs or order directing the Respondent no. 1 and 2 to initiate legal action against the guilty persons by registering FIR under section 154 of the Code of Criminal Procedure and other provisions thereof;
(iv) to issue a writ in the nature of Mandamus or any other writs or order directing the Respondent no. 1 and 2 to constitute a high level Special Investigation Team (SIT) to carry out investigation under section 173 Code of Criminal Procedure and other provisions thereof in order to determine the facts and circumstances leading to the murder of the Petitioner's son and also to punish the culprit in accordance with the procedure established by law;
(v) to issue a writ in the nature of Mandamus or any other appropriate Writ directing the Respondents to pay compensation to the Petitioner and family members at such rate which the Hon'ble Court deem fit and proper by estimating and measuring pain, suffering and psychological injury that the Petitioner would undergo due to sudden demise of the Petitioner's son at the hands of Respondent nos. 4 and 5;"
[3] These two writ petitions appear to be a fall out of an affidavit filed in W.P(Cril) No.11 of 2018 by one Smt. Ranju Singh w/o Lt. Colonel Dharamvir Singh, Officer Commanding, 2 FID/3CISU (M Sector, Imphal). In that affidavit, certain statement has been made that two persons, one Gurumayum Jiteshwar Sharma @ Gypsy @ GM Changjou and another person, Thangjam Satish Singh were killed in cold blood by a team of CISU, attached to 3 Corps, Rangapahar Dimapur, C/0 99 APO after arresting them on 18.8.2011. It is alleged that they were taken away from a rented house at Duncan Basti, Opp. S.M.College, Dimapur, Nagaland. In both the cases, the next of the deceased, who are the petitioners herein, alleged that these persons were killed by the officers of 3 Corps, Rangapahar Dimapur, C/0 99 APO in a fake encounter and in both the cases, formal complaints were made to the Director General of Police, Manipur. Thereafter, no action has been taken.
[4] One Smt. G. (O) Radha Devi, mother of Gurumayum Jiteshwar Sharma @ Gypsy @ GM Changjou, filed a writ petition being W.P(C) No. 94 of 2011 before the then Imphal Bench of the Gauhati High Court. Thereafter, on an application by the present counsel, namely, Mrs. G.Pushpa, the following order was passed by the then Chief Justice of the Hon'ble Gauhati High Court and the same was communicated to the Deputy Registrar (Bench) and it reads as follows:-\
" Endl.No.HCM/T-1/99-J(I)/Vol.III/1954-58
Dated 1st March, 2012
From
The Deputy Regjstrar (Judl.) Gauhati High Court,
Imphal Bench, Imphal.
To
The Deputy Registrar (Bench)
Gauhati High Court, Guwahati.
Subject :Transmission of case record of W.P. (Cril) No. 94/2011 (Smt. G(O) Radhe Devi & Anr. Vs Union of India 10 Ors) along with
M.C.[W.P.(Cril)No. 20 of 2011
M.C.[W.P.(Cril)] No. 21 of 2011
M.C.[W.P.(Cril)] No. 22 of 2011 4.M.C.[W.P.(Cril)] No. 23 of 2011
M.C.[W.P.(Cril)] No. 27 of 2011
Ref : Administrative Order by the Hon'ble the Chief Justice dated 23.02.2012
Sir,
In pursuance of the order under reference, I am directed to transmit herewith the entire records of the above noted case to the Principal Seat at Guwahati for favour of doing the needful at your end.
The receipt of the records may please be acknowledged.
Encl:As stated above and index of the case record.
Yours faithfully,
DEPUTY REGISTRAR (JUDL)
Endt.No. H.CM/T-1/99-J(I)/Vol.III/
Dated 1st March, 2012
Copy to :
Mrs. G. Puspa, Advocate.
Mr. A. Vashum' G.A.
Mr. C. Kamal, C.G.S.C.
Mrs. Y. Lohgkumer, Advocate.
DEPUTY REGISTRAR (JUDL.)"
***** *****
"HON'BLE THE CHIEF JUSTICE MR.ADARSH KUMAR GOEL
Subject:- Transfer of W.P(Cril) No.94 of 2011 from Imphal Bench to Principal Bench.
PUC at flag "A" is an application submitted by the Ld. Counsel of the petitioner in the W.P(Cril) given above praying for transfer of the same from Imphal Bench to Principal Bench.
It is stated in the petition that the WPC was filed by the petitioner at Imphal Bench as she (the petitioner) is a resident of Imphal, though her son for whose production the case was filed was arrested at Dimapur in Nagaland. However, at the time of hearing the question of jurisdiction has been raised and in case the WPC happens to be transferred to Kohima Bench the petitioner is likely to face security related problems and other inconveniences. As such, the petitioner has prayed for transfer of the WPC from Imphal Bench to Principal Bench instead of Kohima Bench for just and proper adjudication of the case.
The petition is laid for favour of Your Lordship's kind consideration and order.
DEPUTY REGISTRAR (JUDL.)"
[5] After filing of the present writ petition, Mr.Suresh, learned CGC appearing for the Union filed a preliminary objection on the maintainability of the writ petition before this Court by way of an affidavit
dated 4th September, 2018 stating that at earliest point of time, the writ petition filed in relation to alleged fake encounter of Gurumayum Jiteshwar Sharma @ Gypsy @ GM Changjou, they filed a W.P(Cril) No. 94 of 2011 and has been already transferred at the request of the petitioner and the counsel and therefore, the present cases should have been filed before the Court of competent jurisdiction and not before this Court merely because that the petitioners and parents are residing in Imphal.
[6] Learned counsel relied upon the judgments of the Hon'ble Supreme Court in the cases of 1) Aligarh Muslim University & anr. Vs. Vinay Engineering Enterprises (P) Ltd., (1994) 4 SCC 710; 2) Oil & Natural Gas Commission v. Utpal Kumar Basu, (1994) 4 SCC 711; and 3) Union of India v. Adani Exports Ltd. ; (2002) 1 SCC 567.
[7] In Aligarh Muslim University (supra),the Hon'ble Supreme Court held at para No.2 as below:-
"2. We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction. 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 respondent was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none by adopting a queer line of reasoning. We are constrained to say that this is a case of abuse of Jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable."
[8] In Oil & Natural Gas Commission (supra), the Hon'ble Supreme Court held at para Nos. 5 and 12 as under:-
"5.Clause (1) of Article 226 begins with a non obstante clause notwithstanding anything in Article 32 -and provides that every High Court shall have power "throughout the territories in relation to which it exercises jurisdiction", to issue to any person or authority, including in appropriate cases, any Government, "within those territories" directions, orders or writs, for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clause (2) of Article 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises Jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution 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 impart, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ 'is issued is not within the said territories. 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, That is at best its case in the writ petition.
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12.Pointing out that after the issuance of the notification by the State Government under Section 52(1)of the Act, the notified land became vested in the State Government free from all encumbrances and hence it was not necessary for the respondents to plead the service of notice under Section 52(2) for the grant of an appropriate direction or order under Article 226 for quashing the notification acquiring the land. This Court, therefore, held that no part of the cause of action arose within the jurisdiction of the Calcutta High Court. This Court deeply regretted and deprecated the practice prevalent in the High Court of exercising jurisdiction and passing interlocutory orders in matters where it lacked territorial jurisdiction. Notwithstanding the strong observations made by this Court in the aforesaid decision and in the earlier decisions referred to therein, we are distressed that the High Court of Calcutta persists in exercising jurisdiction even in cases where no part of the cause of action arose within its territorial jurisdiction. It is indeed a great pity that one of the premier High Courts of the country should appear to have developed a tendency to assume jurisdiction on the sole ground that the petitioner before it resides in or carries on business from a registered office in the State of West Bengal. We feel all the more pained that notwithstanding the observations of Court made time and again, some of the learned Judges continue to betray that tendency. Only recently while disposing of appeals arising out of SLP Nos. 10065-66 of 1993, Aligarh Muslim University v, Vina.v Engineering Enterprises (P) Ltd.6, this Court observed:
"We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction."
In that case, the contract in question was executed at Aligarh, the construction work was to be carried out at Aligarh, the contracts provided that in the event of dispute the Aligarh court alone will have jurisdiction, the arbitrator was appointed at Aligarh and was to function at Aligarh and yet merely because the respondent was a Calcutta-based firm, it instituted proceedings in the Calcutta High Court and the High Court exercised jurisdiction where it had none whatsoever. It must be remembered that the image and prestige of a court depends on how the members of that institution conduct themselves. If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of Justice. We do hope that we will not have another occasion to deal with such a situation."
[9] In Union of India & Adani Exports Ltd. (supra), the Hon'ble Supreme Court held in para No.17 as follows:-
"17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, 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 from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the courts 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. If we apply this principle then we see that none of the facts pleaded in Paragraph 16 of the petition, in our opinion, fall into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad."
[10] In the light of the decisions and after going the facts as pleaded, it is evident that merely because the petitioners reside in Imphal, the High Court cannot assume jurisdiction. (2004) 9 SCC 756 M/S Sterling Agro Industries Ltd. vs Union Of India & Ors.
[10] In this view of the matter, the preliminary objection on jurisdiction appears to be justified. The petitioner by their own conduct have sought for transfer of the earlier case from Imphal Bench to Principal Bench at Guwahati. Similarly, in the present case, the petitioners ought to have filed the cases before the appropriate Court and not be Manipur High Court. The petitioner's counsel to her own knowledge is fully aware that this Court does not have jurisdiction. Such conduct is deprecated and filing of cases which does not deliver justice to the litigant should be avoided. Judicial time is wasted which can be avoided.
[11] In this view of the matter, both the cases stand disposed of by giving liberty to the petitioners to approach the appropriate forum.