Kartar Singh vs State Of U.P. Thru Prin.Secy. Home ...
2017 Latest Caselaw 2354 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 25.05.2017
 
Delivered on 14.07.2017
 

 
1.   Case :- SERVICE SINGLE No. - 10232 of 2006
 
Petitioner :- Kartar Singh
 
Respondent :- State Of U.P. Thru Prin.Secy. Home & 3 Ors.
 
Counsel for Petitioner :- Amit Bose
 
Counsel for Respondent :- C.S.C.
 
AND
 
2.   Case :- SERVICE SINGLE No. - 10233 of 2006
 
Petitioner :- Babban Ram
 
Respondent :- State Of U.P. Thru Prin.Secy. Home & 3 Ors.
 
Counsel for Petitioner :- Amit Bose
 
Counsel for Respondent :- C.S.C.
 

 
******
 
Hon'ble Vivek Chaudhary, J.

Heard learned counsel for the petitioners and the learned Standing Counsel for the State.

The two writ petitions have been filed by two petitioners, namely, Kartar Singh and Babban Ram. Petitioners were posted as Police Constables at District-Shahjahanpur and were deputed to escort three accused persons, namely, Vinod, Rupesh and Prakash for their presence before the court of Judicial Magistrate Mohammadi, District-Lakhimpur Kheri. The allegations against both the petitioners are that after the court proceedings petitioners consumed liquor supplied by the accused persons and after having lost their sense they could not hold the accused and two of them, namely, Vinod and Rupesh ran away from their custody. The third accused Prakash along with manacle and rope reached Police Station-Gola and informed police. On information, the police of Police Station-Gola could arrest the accused-Rupesh. On the said conduct, a departmental inquiry was held against the petitioners at District-Shahjahanpur and, on the basis of inquiry report submitted at District-Shahjahanpur, a show cause notice was issued against the petitioners by the Superintendent of Police, Shahjahanpur. After holding the disciplinary proceedings order of dismissal was passed against the petitioners by the Superintendent of Police, Shahjahanpur at Shahjahanpur. Against the said order an appeal was filed before the Deputy Inspector General of Police, Bareilly Range, Bareilly, which was rejected by the Deputy Inspector General of Police at Bareilly.

Admittedly, both District-Shahjahanpur and Bareilly fall within the jurisdiction of High Court Allahabad while District-Lakhimpur Kheri falls within the jurisdiction of High Court Lucknow.

This Court while entertaining the present writ petitions by order dated 13.12.2006 left the question of jurisdiction open by following order:-

"Learned Chief Standing Counsel has accepted notice on behalf of opposite parties.

Six weeks' time is allowed to file counter affidavit, two weeks' for rejoinder affidavit.

List thereafter.

A preliminary objection has been raised by the learned Standing Counsel that present writ petition is not maintainable in the Lucknow Bench of Allahabad High Court as the impugned order has been passed by the authorities falling within the jurisdiction of Allahabad High Court. This aspect of the matter shall be considered after receipt of counter affidavit."

Counsel for petitioners, Mr. Amit Bose, was heard on preliminary objections. He submits that the facts relating to the jurisdiction have been mentioned in para-18 of the writ petition, which reads as follows:-

"18. That it is submitted here that since the incident of escape of the accused Vinod which resulted in departmental proceedings against the petitioners, took place within the limits of Police Station-Gola, District-Lakhimpur Kheri, and the criminal case against the petitioners were also registered at Police Station-Gola, Lakhimpur Kheri, the investigation was conducted by the police of Police Station-Kheri, District-Lakhimpur Kheri, the charge-sheet was also submitted before the Court of the learned Chief Judicial Magistrate, Lakhimpur Kheri and the trial is also pending the same and as such the incident challenging the impugned departmental proceedings as well as the impugned order of punishment can be entertained and heard by this Hon'ble Court at Lucknow Bench, Lucknow as a part of cause of action has accrued within the territorial jurisdiction of the Lucknow Bench, Lucknow."

A perusal of para-18 of the writ petition shows that the stand being taken by the petitioners is that since the First Information Report was lodged and a criminal case is pending at District-Lakhimpur Kheri, which falls within the jurisdiction of this Court, hence, though the departmental proceedings have been held beyond the jurisdiction of this Court, this Court would be the jurisdiction to entertain the order passed in the departmental proceedings. Admittedly, both the proceedings, i.e. the departmental proceedings and the proceedings in criminal case, though arose from the same incident, are entirely different proceedings. Cause of action with regard to the departmental proceedings for the first time accrued when the same were initiated at Shahjahanpur by issuing the charge-sheet to the petitioners which admittedly was issued and served at Shahjahanpur and on the basis of the said charge-sheet a preliminary inquiry was conducted at Shahjahanpur only, entire evidence was collected at Shahjahanpur and Inquiry Officer after conducting the entire proceedings at Shahjahanpur submitted his report at Shahjahanpur only. The show cause notice and final order of punishments were issued, served and passed at Shahjahanpur only. Against the said order of dismissal appeal was also filed before the Deputy Inspector General of Police, Bareilly Range, Bareilly and appeal was heard and order was passed at Bareilly only. Thus, no departmental proceedings was conducted within the jurisdiction of Lucknow Bench of Allahabad High Court. Thus, the question for consideration is since whether in given facts this Court, would have the jurisdiction to hear this matter.

Petitioners have emphatically placed reliance upon the judgment of Nasiruddin vs. State Transport Appellate Tribunal reported in (1975) 2 SCC 671. They have placed strong reliance in paras-24, 25, 37, 38 and 39 of the said judgment. For convenience, the said paragraphs are also quoted below:-

"24. The fourth question on which the High Court expressed its opinion is on the meaning of "cases arising in such areas in Oudh". The High Court expressed the following views. A distinction arises between civil and criminal cases on the one hand and writ petitions under Article 226 on the other. The contention based on  Article 225  that Lucknow Bench will not have jurisdiction under  Article 226  is wrong because the jurisdiction of the High Court is not only the jurisdiction exercisable before the Constitution came into force but also the jurisdiction which could be conferred on the High Court in future. The Lucknow Bench, therefore, exercises jurisdiction under Article 226.

25. Though the Lucknow Bench can exercise jurisdiction under Articles 226, 227 and 228, there is limitation on such jurisdiction as far as the Lucknow Bench is concerned. The Lucknow Bench will have jurisdiction under  Article 226  only in cases where the right of the petitioner arose first within the Oudh areas. Where an original order passed outside the Oudh areas has been reversed or modified or confirmed at a place within the Oudh areas it is not the place where the ultimate or the appellate order is passed that will attract jurisdiction of the Lucknow Bench. In most cases where an appeal or revision will lie to the State Government, the order will be made at Lucknow. In all such cases, if it be held that the place where a case can be said to arise is where the ultimate or appellate order is passed by the authority, the Judges at Lucknow would then have jurisdiction even though the controversy originally arose and the original order was made by an authority outside the specified Oudh areas. In all cases a writ petition filed in the High Court would be a case arising at Lucknow. It is on this reasoning that the High Court strictly confined the jurisdiction of the Lucknow Bench under Article 226 to the right which the petitioner pursues throughout the original proceedings, the appellate proceedings and thereafter in the High Court. The right of the petitioner is the right which first arose and if the place where the right first arose will be within the Oudh areas then the Lucknow Bench will have jurisdiction.

37. The conclusion as well as the 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 the 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 a place within the specified Oudh areas, the Lucknow Bench will have jurisdiction. If the cause 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 part within specified areas in Oudh and part 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 rightly attracted by the alleged cause of action.

38. To sum up our conclusions are as follows. First there is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the order. Second, the Chief Justice of the High Court has no power to increase or decrease the areas in Oudh from time to time. The areas in Oudh have been determined once by the Chief Justice and, therefore, there is no scope for changing the areas. Third. the Chief Justice has power under the second proviso to paragraph 14 of the order to direct in his discretion that any case or class of cases arising in Oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in Oudh areas shall be instituted or filed at Allahabad, instead of Lucknow is wrong. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the order he directed to be heard at Allahabad. Fourth, the expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction, it may arise in either place.

39. Applications under  Article 226 will similarly lie either at Lucknow or at Allahabad as the applicant will allege that the whole of cause of action or part of the cause of action arose at Lucknow within the specified areas of Oudh or part of the cause of action arose at a place outside the specified Oudh areas."

A perusal of said paragraphs shows that the same do not in any manner help petitioners. The Apex Court has specifically held that at least some part of cause of action should have arisen within the territorial jurisdiction of this Court for this Court to exercise its jurisdiction. In the present case, so far as the departmental proceedings are concerned, no cause of action has arisen within the territorial jurisdiction of this Court.

In case of Rajendra Kumar Mishra vs. Union of India & others reported in [(2005) 1 UPLBEC 108, the Full Bench of this Court in paras-39, 40 and 41 has observed as under:-

"39. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law.

40. For the reasons given above we are of the opinion that the Chief of Army Staff can only be sued either at Delhi where he is located or at a place where the cause of action, wholly or in part, arises.

41. We may mention that a "cause of action" is the bundle of facts which, taken with the law applicable., gives the plaintiff a right to relief against the defendant. However, it must include some act done by the defendant, since in the absence of an act, no cause of action can possibly occur."

In case of State of Rajasthan vs. M/s. Swaika Properties reported in (1985) 3 SCC 217, the Apex Court in para-8 has held as under:-

"8...... The mere service of notice under Section 52 (2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of land under Section 52 (1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at Jaipur Bench.....".

In case of U.P. Rashtriya Chini Mill Adhikari Parishad vs. State of U.P. reported in (1995) 4 SCC 738, the Apex Court in para-14 has held as under:-

"14. .....The territorial jurisdiction of a Court and the "cause of action" are interlinked. To decide the question of territorial jurisdiction it is necessary to find out the place where the "cause of action" arose. We, with respect, reiterate that the law laid down by a four-Judge Bench of this Court in Nasiruddin case holds good even today despite the incorporation of an Explanation to Section 141 to the Code of Civil Procedure."

In case of Navinchandra N. Majithia vs. State of Maharashtra reported in (2000) 7 SCC 640, the Apex Court in para-38 has held as under:-

"38. "Cause of action" is a phenomenon well understood in legal parlance. Mohapatra, J. has well delineated the import of the said expression by referring to the celebrated lexicographies. The collocation of the words "cause of action, wholly or in part, arises" seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of the courts. As per that section the suit could be instituted in a court within the legal limits of whose jurisdiction the "cause of action wholly or part arises......."

In case of Ambica Industries vs. Commissioner of Central Excise reported in (2007) 6 SCC 769, the Apex Court in paras-17 & 41 has held as under:-

"17. There cannot be any doubt whatsoever that in terms of Article 227 of the Constitution of India as also Clause (2) of Article 226 thereof, the High Court would exercise its discretionary jurisdiction as also power to issue writ of certiorari in respect of the orders passed by the Subordinate Courts within its territorial jurisdiction or if any cause of action has arisen therewithin but the same tests cannot be applied when the appellate court exercises a jurisdiction over Tribunal situated in more than one State. In such a situation, in our opinion, the High Court situated in the State where the first court is located should be considered to be the appropriate appellate authority. Code of Civil Procedure did not contemplate such a situation. It provides for jurisdiction of each court. Even a District Judge must exercise its jurisdiction only within the territorial limits of a State. It is inconceivable under the Code of Civil Procedure that the jurisdiction of the District Court would be exercisable beyond the territorial jurisdiction of the District, save and except in such matters where the law specifically provides therefor.

41. Keeping in view the expression "cause of action" used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum convenience may also have to be considered."

In case of Alchemist Ltd. vs. State Bank of Sikkim reported (2007) 11 SCC 335, the Apex Court in para-37 has held as under:-

"37...... 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."

In case of Rajendra Chingravelu vs. R.K. Mishra reported in (2010) 1 SCC 457, the Apex Court in para-9 has held as under:-

"9........The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in relation to territories within which the cause of action arises wholly or in part, will have jurisdiction. This would mean that even if a small fraction of cause of action (that bundle of fact which gives a petitioner, a right to suit) accrued within the territories of Andhra Pradesh, the High Court of the State will have the jurisdiction."

In case of Nawal Kishore Sharma vs. Union of India reported in (2014) 9 SCC 329, the Apex Court in para-16 has held as under:-

"16........In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court's jurisdiction."

In case of Kusum Ingots & Alloys Ltd. vs. Union of India reported in (2204) 6 SCC 254, the Apex Court in paras-29 and 30 has held as under:-

"29. .In view of clause 2 of Article 226 of the Constitution of India now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh (supra) has, thus, no application.

30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum convenience."

In all the cases, the Courts have followed the law as settled in the case of Nasiruddin vs. State Transport Appellate Tribunal (supra). Since the cause of action, regarding the departmental proceedings, has not arisen within the territorial jurisdiction of this Court, therefore, this Court does not have jurisdiction to entertain both the writ petitions.

Even otherwise, as settled by the Apex Court in case of Kusum Ingots & Alloy Lts. vs. Union of India (supra) it is appropriate for this Court, in the facts of the present case, to refuse to exercise its' discretionary jurisdiction invoking the doctrine of Forum Convenience, and direct the petitioner to approach appropriate forum having jurisdiction.

In view of above, both the aforesaid writ petitions are dismissed on the ground of territorial jurisdiction. It shall be open for the petitioners to file appropriate petitions before the Court having territorial jurisdiction.

Order Date :- 14.07.2017

Suresh/

(Vivek Chaudhary, J.)