Santosh Kumar and another vs State of U.P.and others

Nath Tilhari, J.—The learned Standing Counsel has accepted the notice on behalf of opposite parties 1 to 4. Sri M.P. Singh, learned Standing Counsel appearing on behalf of the opposite parties raised a preliminary objection to the effect that Court i.e. High Court of Uttar Pradesh while sitting at Lucknow is not competent to entertain this petition. As the order contained in Annexure No. 1 of the writ petition had been issued by the District Inspector of Schools, Kanpur and the Annexure No. 2 is also an order which has been issued by the District Inspector of Schools, Kanpur and, therefore, this case cannot be termed to be case arising in Oudh and this court sitting at Lucknow cannot entertain it. In reply to this preliminary objection raised by the learned Standing Counsel, Shri Prashant Chandra, the learned Counsel for the petitioners submitted that the High Court is one and two benches together with constitute, one single unit institution sitting at Lucknow and Allahabad i.e. the High Court of Uttar Pradesh and one single institution sitting at Allahabad and Lucknow and jurisdiction and power conferred under Article 226 of the Constitution of India on High Court that jurisdiction in the entire body of the Judges of this Court. He has further submitted that even on the well settled and accepted principle as laid down by their Lordships of the Supreme Court in the famous Nasiruddin''s case, reported in (AIR 1976 Supreme Court page 331), a case arises in Oudh if the cause of action either in part or in whole arises in areas of erstwhile Oudh and in the present case, a part of cause of action has arisen at Lucknow within the territorial limits of the erstwhile Oudh over which prior to the amalgamation of the erstwhile Highest Court of appeal in Oudh i.e. The Chief Court in Oudh used in exercise its jurisdiction. As the cause of action partly had arisen in Lucknow, the court had got the Jurisdiction to entertain it. In this connection Sri Prashant Chandra had invited my attention to the allegations of paragraphs 10 and 16 of the writ petition, That on the basis of the allegation paragraph 16 Shri Chandra contends that this Court had jurisdiction to entertain the writ petition even if for the moment it be taken that this Court can entertain the cases arising in Oudh. He submitted that really there is no bifurcation of jurisdiction between the two Benches sitting at Allahabad and at Lucknow. The jurisdiction as defined under clause 7 of the provision of the Constitution of India including Article 225 and 226 thereof vests in entire High Court.

I have given my consideration to the contention of the learned Counsel for the petitioners as well as to the preliminary objections raised by Shri M. P. Singh learned Standing Counsel. There appears that much substance in the contentions of the learned Counsel for the petitioners. That by U.P., High Court''s amalgamation order, the two erstwhile High Courts i.e. High Court at Allahabad and Chief Court in Oudh were amalgamated and the entity identity of both were merged into one and from which a new entity or a New High Court emerged, though it was given the name of erstwhile Allahabad High Court as High Court of Judicature at Allahabad. This new High Court is distinct from the erstwhile High Court in Allahabad and is not the continuance of either. The concept New High Court a new entity in consonance with the law and spirit of the provisions under Section 229 of the Govt. India Act, particularly, subSection 2 thereof. The amalgamated Court has been described as a ''New High Court'' throughout in the Amalgamation order though the name of old Allahabad High Court continued. By adoption of law of 1950 issued on 26th January, 1950 this new High Court in some legislative enactments has been described as the High Court of Judicature for Uttar Pradesh or High Court of Uttar Pradesh. (See AIR manual Vol. 29 page 923).

By amalgamation this new High Court i.e. High Court of Judicature for Uttar Pradesh did come into existence and in the famous case of Nasiruddin, the Supreme Court had been pleased to observe reference Jurisdiction of this Court i.e. High Court in light of paragraph 7 of the order, as under:

"The jurisdiction defined in paragraph 7 of the order vests in the entire body of Judges. It is the jurisdiction enjoyed by Judges of the High Court and extends to all cases throughout the territories of the State, where that jurisdiction will be exercised is a matter determined under paragraph 14 of the order."

The Supreme Court further observed in paragraph 28 as under:

"The order describes the High Court as the new High Court. The two High Courts have amalgamated in the new High Court. The seat is at Allahabad and at such other places as may be determined, there is no permanance attached to Allahabad. In the normal understanding of the matters, it is left to the discretion of the authorities as to whether the seats at Allahabad as well as at Lucknow will be changed. Both places may continue. Both places may be changed. Lucknow is the seat of the Government. Allahabad has also the history that the High Court was there before the order. Lucknow has been the principal place of Oudh. The order aimed at giving status to the Oudh Chief Commissioner''s Court as that of the High Court. It is difficult to foresee the future whether the authorities will change the location to other places but no idea of permanent seat can be read into the order. One can only say that it is the wish and hope that both Allahabad and Lucknow will be the two important seats so that history is not wiped out and policy is not changed."

Dealing with the question of case arising in Oudh with reference to petition under Article 226 of the Constitution of India, their Lordships of the Supreme Court did not approve the conclusion and reasoning of the High Court itself which conclusion of the High Court had been referred by the Supreme Court in paragraph 35 of the decision. That after dealing reference to the matter relating to jurisdiction etc. in paragraph 36 of the AIR Reports of Judgment in Nasiruddin''s case, it has been observed by the Hon''ble Supreme Court as under

"The conclusion as well as reasoning of the High Court is incorrect. It is unsound because the expression" cause of action" in an application under Article 226 would be as the expression is understood and if the cause of action arose because of the appellate order or revisional order which came to be passed at Lucknow then Lucknow would have jurisdiction though the original order was passed at a place outside the areas in Oudh. It may be that the original order was in favour of the person applying for a writ. In such case an adverse appellate order might be the cause of action. The expression "cause of action" is well known. If the cause of action arises wholly or in part at the place within the specified Oudh areas, the Lucknow Bench will have jurisdiction. If the case of action arises wholly within the specified Oudh areas, it is indisputable that the Lucknow Bench would have exclusive jurisdiction in such a matter. If the cause of action arises in part within the specified areas in Oudh it would be open to the litigant who is the dominus litis to have his forum convenience. The litigant has the right to go to a Court where part of his cause of action arises. In such cases, it is incorrect to say that the litigant chooses any particular Court. The choice is by reason of the jurisdiction of the Court being attracted by part of cause of action arising within the jurisdiction of the Court. Similarly, if the cause of action can be said to have arisen partly within specified areas in Oudh and partly outside the specified Oudh areas, the litigant will have the choice to institute proceedings either at Allahabad or Lucknow. The Court will find out in each case whether the jurisdiction of the Court is rightly attracted by the alleged cause of action."

Keeping these observations of the Hon''ble Supreme Court I came to the conclusions on the following conclusions :

(a) That the present is a new High Court in respect of which name of erstwhile Allahabad High Court had been adopted and which subsequently had also been described by in the legislative enactment i.e. this new amalgamated Court sitting at two places at present has been described in some Acts as High Court of Judicature for Uttar Pradesh. The jurisdiction including the jurisdiction under Article 226 of the Constitution of India vests in entire body of Judges of this Court. It is exercisable either at Allahabad or at Lucknow subject to the provision of Clause 14 as interpreted by the Supreme Court and, as such, if cause of action has partly arisen in a case in areas of whole erstwhile Oudh and partly outside thereof. This Court sitting at Lucknow can entertain this petition. The jurisdiction of the Court is attracted on the basis of cause of action alleged in the petition or complaint by the party and is to be determined ordinarily on the basis of allegations made in the plaint or the petition. In taking this view I find support from the views expressed by Supreme Court, Privy Council and other Courts. In the case of ''Abdul Bin Ali Versus Galappa'' (1985 (2) SCC 54) the Supreme Court has been pleased to lay down as under:

"There is no denying fact that the allegations made in the plaint decide forum. The jurisdiction does not depend upon the defence taken by defendants in written statement."

In case under Article 226/227 of the Constitution, in the case of Chandra Kaur Versus Pratap Singh, reported in 15 IA 156 i.e. ILR(16) Cal 98 the Lordship of the Privy Council has been pleased to lay down the law as under:

"Now the cause of action has no relation whether 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 to the grounds setforth in plaint a 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" (Vide page 102 of the ILR),

This view of the Privy Council has lateron been followed by the Privy Council again in another case, namely, Mohd. Khalil Khan Versus Mahboob Ali Miyan, reported in (AIR 1949 PC 78 (86) as well as by the Allahabad High Court in decision of case Maqbool Ahmad Versus Mst. Fatima Bibi (AIR 1935 Alld. 81 (D. B.)."

In the case of Debendra Nath Versus Sakhilal (AIR 1950 Cal 526) has been held and laid down that "The cause of action is to be determined with reference to pleadings and not the subsequent finding which may be reached by Court."

Now I proceed to examine the allegation of paragraphs 10 and 16. In paragraph 16 the petitioner has averred that considering the legal position and having felt aggrieved by the order dated 3081993 the petitioner preferred a representation dated September 23, 1993 before the Principal Secretary as well as the Director of Education (Madhyamik), Lucknow for Annexure No.5 to the writ petition for directions to the District Inspector of Schools, Kanpur that the services of the petitioner applicant may not be terminated and the District Inspector of Schools way not grant the approval. According to petitioner''s case in paragraph 16, the said representation continued to remain pending and no orders so far being passed no action has so far been taken on the representation by the State Government as well as by the District Inspector of Schools.

Learned Counsel for the petitioner submitted that this is of making a representation by petitioner alongwith the failure of the opposite parties 1 and 2 to dispose of that representation and to pass an order thereon has given rise to a grievance and therefrom a part of cause of action has arisen for the petitioner to move this Court for issuance of a writ of mandamus. Learned Counsel, no doubt, is correct in making this part of statement, ''if a person is aggrieved by any order and there is a higher authority which is competent to do needful to mend the things the persons concerned has to approach that authority to exercise the power and to mend the error and to save him from injury or injustice being caused by those orders, if those orders are illegal and wrong or if it otherwise so passed an order rejecting that representation i.e. to say if an appeal or representation is made, the duties cast on the authorities to dispose of that matter and if the authorities fail to do that then the cause of action for moving the petition under Article 226 of the Constitution of India and seeking the mandamus does arise and this is the position in the present writ petition. As such, in my opinion, the petitioner had made out a case that cause of action has partly arisen in Lucknow i.e. an area in Oudh attracting the jurisdiction of this Court which he can pray for being exercised.

In this view of the matter I reject the preliminary objection, the writ petition, as such is being entertained.

Objection rejected.