Sanjeev Kumar vs Union Of India And Others

Rajnesh Oswal, J

Mr. Vishal Sharma, learned Deputy Solicitor General of India, has raised a preliminary objection with regard to the maintainability of this writ petition on the ground that this court has no territorial jurisdiction to entertain the writ petition filed by the petitioner, as the cause of action has not accrued within the territorial jurisdiction of this Court because the grievance raised by the petitioner is with regard to the vacation of the Government Quarter situated at STC Campus, BSF Bangalore. In order to substantiate his objection, Mr. Sharma relied upon the judgement passed by the Co-ordinate Bench of this Court in case titled “Rajesh Kumar Tomar vs. Union of India and others” reported in JKJ ONLINE 69836.

Mr. Ajay Sharma, learned counsel for the petitioner argued that the petitioner was informed about the rejection of the request of the petitioner for the allotment of Government Quarter through 126 Battalion BSF located at Jammu. The petitioner made the request to the IG BSF, FTR HQ (SPL OPS) Bangalore, when he was posted with 126 Bn BSF at Sunderbani, Jammu. The petitioner was served with the show cause notice dated 19/11/2016 through 126 Bn BSF at Sunderbani, Jammu. The petitioner replied to the show cause notice as Second-In-Command 126 Bn BSF Sunderbani, Jammu and the final order dated 27/01/2017 imposing penal deduction of rent under section-3 of Public Premises (Eviction of unauthorised occupants) Act 1971 was served upon the petitioner through 126 Bn BSF at Sunderbani, Jammu. Mr. Sharma further submitted that the petitioner has already vacated the quarter in question and the only issue that requires adjudication is with regard to the imposition of the penal charges.

Heard and perused the record.

The petitioner through the medium of this writ petition has prayed for the following reliefs:

a) writ of certiorari seeking quashment of order dated 08/03/2017 issued by respondent No. 4 by virtue of which the petitioner has been directed to vacate the Government Quarter Type-III/03 (Annex) STC Campus BSF Bangalore and further imposed penal/damage charges amounting to ₹ 2,06,640 for the period from 12.08.2016 to 28.02.2017.

b) writ of certiorari seeking quashment of the show cause notice dated 19.11.2016 issued by the respondent No. 5, being declared null and void and without jurisdiction,

c) writ of mandamus commanding the respondents to permit the petitioner to retain the Government Quarter Type-III/03 (Annex) STC Campus BSF Bangalore at normal license fee in accordance with the guidelines and office memorandum in vogue.

It is stated that the petitioner was posted at STC BSF Bangalore and he was allotted the Government Quarter Type-III/03 (Annex) on 02.07.2013. Pursuant to the 4 choices offered by the respondents, the petitioner opted for posting in J and K and north-east, besides other 2 stations. Accordingly, the petitioner was transferred at 126 Battalion BSF Sunderbani on 01.05.2016. While the petitioner was under the order of posting to 126 Battalion BSF Sunderbani, he submitted an application for seeking permission to retain the Government Quarter mentioned above on normal license fee for the education of his daughter who was preparing to appear for medical entrance test from Karnataka State in the year 2018. The said application was considered by the respondent No. 5 and he recommended the case of the petitioner and requested the Frontier Headquarters (Spl. Ops) for approval from the competent authority. The petitioner joined at his new place of posting i.e. 126 Bn BSF, Sunderbani on 24.06.2016. The petitioner was informed that his request for retention of the Quarter mentioned above was rejected vide signal dated 28.07.2016. On 03.08.2016, the petitioner submitted his representation for reconsideration of his application and vide order dated 20.09.2016, IG (Spl. Ops.) BSF, Bangalore rejected the said representation and directed the petitioner to vacate the quarter. The respondent No. 5 vide its communication dated 19.11.2016 issued a show cause notice to the petitioner as to why penal deduction of the rent under section 3 of Public premises (eviction of unauthorised occupants) Act 1971 and Fundamental Rule 45-A be not imposed for the unauthorised retention of Government quarter. The petitioner submitted his reply on 17.12.2016 from Sunderbani. The respondent No. 5 served the order dated 27/01/2017 upon the petitioner through 126 Bn. BSF at Sunderbani wherein the penal deduction of rent was calculated. Thereafter vide order dated 08.03.2007, the respondent No. 4 imposed the penal/damage charges of an amount of ₹ 2,06,640/ upon the petitioner.

It needs to be noted that clause 2 of the Article 226 of the Constitution vests the jurisdiction upon High Court to issue any direction, order or writ provided the cause of action, wholly or in part arises within the territorial jurisdiction of that court. In other words, this clause creates a bar for the High Courts to entertain the petitions filed under Article 226 of the Constitution in respect of the cause of action not arising wholly or in part within its territorial jurisdiction and the clause-2 of Article 226 reads as under:

“226(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 authority or the residence of such person is not within those territories”

The Apex Court has considered the meaning of “cause of action” in its various pronouncements and it has been held that cause of action would mean bundle of facts which the petitioner must prove, to entitle him to a judgement in his favour by the court. In determining the objection with regard to the lack of territorial jurisdiction, only the facts pleaded in support of cause of action are to be considered without undertaking any enquiry as to the correctness or falsity of those facts. (See Oil and Natural Gas Commission vs. Utpal Kumar Basu (1994) 4 SCC 711).

In “Kunjan Nair Sivaraman Nair vs. Narayanan Nair and others, (2004) 3 SCC 277”, Hon’ble the Supreme Court again explained the “cause of action” and it would be apt to reproduce para 16 and 17 of the judgment as under:

The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or 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 would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in “cause of action.”

In Halsbury’s Laws of England (4th Edition), it has been stated as follows:

“‘Cause of action’ has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.”

Further, the fact pleaded by the petitioner constitutes a part of the cause of action only when such fact constitutes a material, essential or integral part of the cause of action meaning thereby if the fact pleaded is having no nexus with the cause of action then the said fact would not constitute a part of the cause of action. In Alchemist Ltd. v. State Bank of Sikkim, (2007) 11 SCC 335, the Hon’ble Apex Court has held as under:

“37. From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a “part of cause of action”, nothing less than that.”

Thus, even where a small fraction of the cause of action arises within the jurisdiction of the court then the court would have territorial jurisdiction to entertain the petition. The coordinate bench of this court has also arrived at the same conclusion in “Rajesh Kumar Tomar vs. union of India and others” reported in JKJ ONLINE 69836, relied upon by learned DSGI.

In Nawal Kishore Sharma vs. Union of India & Ors., (2014) 9 SCC 329, the Apex Court has held as under:

“17. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscle disease). As a result, the Shipping Department of the Government of India issued an Order on 12-4-2011 cancelling the registration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability compensation. The said representation was replied by the respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the district of Gaya, Bihar and, thereafter, he made all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, the appellant was suffering from serious heart muscle disease (dilated cardiomyopathy) and breathing problem which forced him to stay in his native place, wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation.”

Now, it is to be examined whether in the instant case any cause of action or part thereof has arisen within the territorial jurisdiction of this Court. This is evident from the record that the notice dated 19.11.2016 was served upon the petitioner through 126 Bn BSF that was located at Sunderbani, J&K. The relevant portion of the notice dated 19.11.2016 is reproduced as under:

“3. In view of the foregoing facts, I’m directed to call upon you to show cause as to why penal deduction of rent under section-3 of Public premises (eviction of occupant’s) Act 1971 and FR-45 A should not be imposed on you for un-authorised occupation of govt quarter from the date of unauthorised occupation period.

Your reply, if any, should reach this office within 15 days from the receipt of this notice, otherwise ex-parte decision will be taken to impose damage charge/rent as per revised rate of CPWD, Bangalore OM No. 1174 dated 22.08.2013 rate of damage/market rent (normal license fee x 45 times) which comes to Rs. 370x45 = 16,650/ per month for Qtr. Type-III (Annex).”

The said notice was replied by the petitioner from place of his posting only i.e. 126 Bn BSF, as is evident from the reply dated 17.12.2016. The show cause notice was precursor to the issuance of order dated 27.01.2017. The respondents have admitted the averments made in para 9 of the writ petition wherein the petitioner has stated that the show cause notice was served upon the petitioner through 126 Bn. BSF deployed at Sunderbani and in response to the above-mentioned show cause notice, the petitioner submitted his reply on 17.12.2016 from J&K, Sunderbani. The facts of Rajesh Tomar’s case were different as the findings of court of enquiry conducted beyond the territorial jurisdiction of the court were sought to be quashed along with the charge-sheet served upon the petitioner within the jurisdiction of court. As such this court is of the considered view that the part of cause of action has accrued to the petitioner within the territorial jurisdiction of this court, therefore the preliminary objection raised by Mr Sharma is rejected.

List this petition for final disposal on 27.03.2023.