Riyazul Hassan vs Union Of India Thru Secy. Ministry ...
2022 Latest Caselaw 7869 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 36
 

 
Case :- WRIT - A No. - 20565 of 2017
 

 
Petitioner :- Riyazul Hassan
 
Respondent :- Union Of India Thru Secy. Ministry Of Home Affair And 3 Ors.
 
Counsel for Petitioner :- Ramesh Kumar Mishra,Naresh Chandra Tripahti,Suchita Tripathi
 
Counsel for Respondent :- S.C.,Santosh Kumar Shukla
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. By this order the Court is deciding preliminary issue of territorial jurisdiction. The pleadings are exchanged. In the pleadings neither the petitioner nor respondents have raised plea for and against the territorial jurisdiction. However, counsel for parties have vehemently argued on the issue, therefore, the present order is being passed.

2. Petitioner has declared his residential address of District Bijnor, Uttar Pradesh whereas the impugned orders dated 27.02.1996 and 08.02.2014 are passed by Respondent-4, Commandant, 21st Battalion, Indo Tibetan Border Police, Srinagar (Jammu & Kashmir) and Respondent-2, Director General of Indo Tibetan Border Police, North-West Zone, Office of Ministry of Home, New Delhi, respectively.

3. Petitioner has also declared that he was posted as Constable/ Barber at 19th Battalion Indo Tibetan Border Police at Srinagar and was transferred to 21st Battalion, Indo Tibetan Border Police at Leh vide order dated 18.07.1994. However petitioner failed to join at Leh, therefore, proceedings were initiated against him for "desertion of service" and by impugned order dated 27.02.1996 petitioner was removed from service. Thereafter a belated appeal was filed before President of India, which was forwarded to Respondent-4, however, it was also rejected by means of impugned order dated 08.02.2014.

4. Ms. Suchita Tripathi, learned counsel for petitioner, urged that, petitioner is a permanent resident of District Bijnor, Uttar Pradesh. During inquiry all correspondences were send to his residential address at Bijnor, therefore, partial cause of action arose at Uttar Pradesh also. The writ petition is pending since 2017 and pleadings are exchanged, therefore, at this stage, equity also favours petitioner. Learned counsel has relied on the decision of Supreme Court in Nawal Kishore Sharma vs. Union of India and others, (2014) 9 SCC 329 and read out paras 9, 16 and 17 of the judgment, which are reproduced as under:

"9. The interpretation given by this Court in the aforesaid decisions resulted in undue hardship and inconvenience to the citizens to invoke writ jurisdiction. As a result, Clause 1(A) was inserted in Article 226 by the Constitution (15th) Amendment Act, 1963 and subsequently renumbered as Clause (2) by the Constitution (42nd) Amendment Act, 1976. The amended Clause (2) now reads as under:

226. Power of the High Courts to issue certain writs-(1) Notwithstanding anything in Article 32, 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, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(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 or authority or the residence of such person is not within those territories.

(3) .......

(4) .......

On a plain reading of the amended provisions in Clause (2), it is clear that now High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court's territorial jurisdiction. Cause of action for the purpose of Article 226(2) of the Constitution, for all intent and purpose must be assigned the same meaning as envisaged Under Section 20(c) of the Code of Civil Procedure. The expression cause of action has not been defined either in the Code of Civil Procedure or the Constitution. Cause of action is bundle of facts which is necessary for the Plaintiff to prove in the suit before he can succeed....."

"16. Regard being had to the discussion made hereinabove, there cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings Under Article 226 of the Constitution. 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.

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 muscles 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, Appellant was suffering from serious heart muscles disease (Dilated Cardiomyopathy) and breathing problem which forced him to stay in 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."

5. Per contra, Sri S.P. Singh, learned Additional Solicitor General of India assisted by Sri Purnendu Kumar Singh, Advocate for respondents, has placed reliance on a Full Bench judgment of this Court in Manish Kumar Mishra vs. Union of India and others, 2020(6) ADJ 1, and relevant paras 10, 11, 12, 13, 27 and 28, are reproduced as under:

"10. From an exhaustive reading of the decision in Nawal Kishore Sharma (2014) 9 SCC 329, it is evident that the question of maintainability of the writ petition in Patna High Court was decided in the peculiar facts and circumstances of the case considering the nature and character of the proceedings under Article 226 of the Constitution. It was found that legal right claimed by the appellant (therein) to disability compensation had been infringed by the respondent with rejection of his representations communication from the home address of the employee and orders were communicated to him at the same address. On account of suffering from disease, the appellant having been permanently declared unfit was forced to stay in his native place.

11. From the above, it is evident that there can never be an encyclopedic exposition as to what would constitute cause of action in a case. The decisions of the Full Bench and the Division Benches of this Court and the Apex Court should not be read to exhaustively enunciate as to when and how the Court should determine in a case that the cause of action, wholly or in part, has arisen within its territorial limits. Peculiar facts in the context of the subject matter of the litigation, and relief claimed are the only guiding factors for the learned Judge(s) to decide. It is to be entirely left at the discretion of the Judge(s) considering the petition to ascertain whether the cause of action did exist entitling the petitioner to approach the High Court concerned.

12. Each and every fact pleaded in the writ petition cannot by itself constitute a cause of action. Facts which have no bearing on 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. In view of the expression used in clause (2) of Article 226 of the Constitution, even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. Integral facts pleaded must have nexus or relevance with the lis so as to constitute a cause of action.

13. We find that law on the subject is fairly well settled with the decision of Larger Benches of this Court and the Supreme Court. The judgments of Division Benches and Larger Bench placed by the counsels for both sides before the learned Single Judge do not show any conflicting view in the matter and need no further explanation or elaboration."

"27. We subscribe to the view taken by the above noted Division Benches to hold that mere communication of the appellate or revisional order at the place of residence of the petitioner itself does not give rise to a cause of action within the territorial jurisdiction of the High Court within limit of which jurisdiction he resides as the communication of such a decision would confer only the "right to action". The confirmation of order of dismissal with the rejection of appeal and representation does not give rise to any fresh cause of action at a place where the order of appellate authority is communicated.

28. Further, we may note that doctrine "forum conveniens" has a limited application and 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 conveniens. [Reference Kusum Ingots & Alloys Ltd.: (2004) 6 SCC 254]"

6. Heard learned counsel for parties on preliminary issue of territorial jurisdiction and perused the material available on record.

7. Facts which are not disputed are, that the petitioner is resident of District Bijnor, Uttar Pradesh and impugned orders are passed by Respondents-2 and 4 at New Delhi and Shrinagar (Jammu & Kashmir). Supreme Court in a recent judgment in Shanti Devi alias Shanti Mishra vs. Union of India and others, (2020) 10 SCC 766 has discussed many of the prior judgments on the issue of territorial jurisdiction and finally considering that petitioner therein was a retired employee and taking note of her convenience to prosecute her case at the place where she belong to and was getting pension, issue of territorial jurisdiction was decided.

8. Question of territorial jurisdiction must be decided on the facts pleaded in petition. The contents of writ petition are silent so far as territorial jurisdiction is concerned. However, the averments made in writ petition are that all the correspondence of inquiry was conducted by petitioner from his residence at Bijnor (Uttar Pradesh) whereas the impugned orders were passed by respondents situate at another State. It is not a case of retired person, rather petitioner was terminated from services due to desertion from service, therefore, considering the judgments referred above, equity does not favour petitioner. Only on the basis of communications territorial jurisdiction cannot be created. Even the forum convenience is not in favour of petitioner. In the facts of present case, not a small fraction of cause of action occurs within the jurisdiction of this Court. In Manish Kumar Mishra (supra) it is held that mere communication to petitioner of the correspondence during the inquiry as well as the order, does not give a cause of action within the territorial jurisdiction of High Court within limit of which jurisdiction he resides, as the communication of such a decision would confer only "right to action".

9. In view of above, the preliminary objection of respondents is accepted and accordingly issue of jurisdiction is decided against the petitioner. Resultantly, the writ petition is dismissed on the ground of lack of territorial jurisdiction.

Order Date :- 25.07.2022

AK