Rajendra Kumar Bisht vs Border Security Force and Others

Sudhanshu Dhulia, J.—Heard Ms. Indu Sharma, Advocate for the Petitioner and Ms. Anjali Bhargava, Standing Counsel for the Union of India.

Learned Counsel appearing for the Respondent has raised a preliminary objection regarding the maintainability of the writ petition itself on the ground that no "cause of action" or even "part of cause of action" has occurred in the territory of State of Uttarakhand.

This writ petition has been filed by the Petitioner claiming appointment on compassionate ground. The father of the Petitioner while on duty as a Head Constable in Border Security Force died in Punjab on 21.2.1995. Subsequently the representation of the Petitioner for appointment on compassionate grounds under dying in harness rules was also rejected in Punjab and the latest order on which the reliance has been placed by the Petitioner dated 12.6.2006 (Annexure No. 15 to the writ petition) has also been passed in Punjab i.e. outside the territory of Uttarakhand.

Merely because the Petitioner has received such orders in Uttarakhand, will not amount to any part of any cause of action, much less any cause of action within the territorial jurisdiction of this Court.

A Full Bench of Allahabad High Court in Rajendra Kumar Mishra v. Union of India and Ors. reported in [(2005) 1 UPLBEC 108], on the question as to which High Court shall have jurisdiction in such matters, after considering the entire law on the subject including the decision of the Supreme Court in Dinesh Chandra Gahtori v. Chief of Army Staff stated as follows:

In our opinion the observation in the aforesaid decision "The Chief of Army Staff may be sued in any High Court in the Country" cannot be construed to mean that the Supreme Court has laid down any absolute proposition that it is open to the Petitioner to file a writ petition in any High Court in India. Such as absolute proposition as canvassed by the Learned Counsel for the Petitioner may lead to conflicting decisions because different petitions can be filed in different High Courts by co-accused in the same case and conflicting decisions can be given.

It may be noted that the aforesaid observation in the three Judges decision of the Supreme Court in Dinesh Chandra Gahtori''s case (supra) is only a laconic observation and it cannot be override Larger Bench decisions of the Supreme Court.

In the present case it may be noted that the misconduct was committed at the Calcutta and Summary Court Martial was also held at Calcutta. Thus the entire cause of action arose at Calcutta. We, therefore, fail to understand how a writ petition can be entertained at Allahabad High Court where no part of the cause of action had arisen.

In the same Full Bench decision, the Court referred to various decisions of the Supreme Court and came to the conclusion that in such matters the High Court which will have jurisdiction will be the High Court in which territorial jurisdiction, the order impugned has been passed.

Referring the case of Supreme Court in Lt. Col. Khajoor Singh Vs. The Union of India and Another, , the Full Bench of the Allahabad High Court has further stated as follows:

In our opinion merely because the Petitioner is presently residing in Ballia this will not give jurisdiction to this Court in view of the Seven Judges Bench decision of the Supreme Court in Lt. Col. Khajoor Singh Vs. The Union of India and Another, . In paragraph 13 of the aforesaid decision the Supreme Court observed:

Now it is clear that the jurisdiction conferred on the High Court by Article 226 does not depend upon the residence or location of the person applying to it for relief; it depends only on he person or authority against whom a writ is sought being within those territories. It seems to us, therefore, that it is not permissible to read in Article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court''s jurisdiction. Thus if a person residing or located in Bombay, for example, is aggrieved by an order passed by an authority located, say, in Calcutta, the forum in which he has to seek relief is not the Mumbai High Court though the order may affect him in Bombay but the Calcutta High Court where the authority passing the order is located. It would, therefore, in our opinion be wrong to introduce in Article 226 the concept of the place where the order passed has effect in order to determine the jurisdiction of the High Court which can give relief under Article 226.

The Full Bench of Allahabad High Court has also referred the decision of the Supreme Court in Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Others, , where the Supreme Court held as under:

Under Article 226 a High Court can exercise the power to issue directions, orders of writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. The expression "cause of action" means that bundle of facts which the Petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Therefore, in determining the objection of lack of territorial jurisdiction the Court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus, the question of territorial jurisdiction must be decided on the facts pleaded in the Petitioner, the truth or otherwise of the averments made in the petition being immaterial.

Relying upon the case of Supreme Court in Rajasthan High Court Advocates Association v. Union of India and Ors. AIR 2001 SC 416, the Full Bench of the Allahabad High Court has stated as under:

Similarly in Rajasthan High Court Advocates Association v. Union of India and ors AIR 2001 SC 416, the Supreme Court held that Clauses (1) and (2) of Article 226 of the Constitution provide how territorial jurisdiction shall be exercised by any High Court and one of the test may be as to whether the cause of action partly or fully has arisen within its territorial jurisdiction. While deciding the said case reliance was placed upon the Court''s earlier judgment in U.P. Rashtriya Chinni Mills Adhikari Parishad, Lucknow Vs. State of U.P. and others, , wherein it had been held that 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 suit, including not only the infraction 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 the "cause of action". It has to be left to be determined in each individual case as to where the cause of action arises.

It is true that after the amendment made in Article 226 of the Constitution, the jurisdiction would depend upon the "cause of action" or "part of cause of action" and not merely on territorial aspect. However, it is the considered view of this Court merely because the Petitioner resides in the territory of Uttarakhand will not constitute "a cause of action" or "part of cause of action", as contemplated under Article 226 of the Constitution of India.

Learned Counsel for the Petitioner Ms. Indu Sharma further asserts that since the writ petition was admitted on 17.9.2007 and the counter affidavit and rejoinder affidavits have been exchanged, the case must be heard on its merits and may not be dismissed on the ground of jurisdiction. This argument of the counsel for the Petitioner is also misconceived inasmuch as once the Court has come to the conclusion that the writ petition is not maintainable before this Court, as there is no cause of action for filing the writ petition before this Court, the fact that the writ petition has earlier been admitted and counter affidavit and rejoinder affidavits have been exchanged is of no consequence since first and foremost what must be seen is the jurisdiction of the Court itself. As the issue is not of an alternative remedy being available for the Petitioner but as to whether this Court has any jurisdiction in the matter, considering the above aspect, this Court is of the view that no cause of action arose in the territory of Uttarakhand and that it has no jurisdiction to entertain the writ petition.

The writ petition is, therefore, liable to be dismissed and is hereby dismissed.

No order as to costs.