Sunita Rani vs Govt Of Haryana & Ors
2013 Latest Caselaw 664 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.844/2013

%                                                        February 12, 2013
      SUNITA RANI                                   ..... Petitioner
                          Through:       Mr. S.C.Phogat, Adv.

                          versus

    GOVT OF HARYANA & ORS          ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. In this writ petition, the petitioner seeks appointment to the post

of Assistant Professor (English) in the respondent No.4, i.e. Kurukshetra

University, Kurukshetra, Haryana. The eleven colleges of the respondent

No.3-DAV college Managing Committee, in any of which the appointment

of the petitioner can be made, are at Haryana and these eleven colleges are

mentioned in the advertisement which is given at page 22 of the paper book.

2. In view of the aforesaid facts, the appointment to the post for

which the petitioner is seeking employment is of a college situated in

Haryana, the university which will govern the colleges of Haryana is the

respondent No.4-Kurukshetra University at Haryana, and finally the

respondent No.1 is the Government of Haryana and the respondent No.2, the

Commissioner of Higher Education, Haryana, again both of whom are

located in Haryana.

3. The only ground on the basis of which the petitioner claims that

Delhi Courts have territorial jurisdiction is because the interviews were

conducted in New Delhi by the respondent No.3 for its colleges at Haryana,

and the respondent No.3 is stated to be situated at New Delhi.

4. I am unable to agree that this Court has territorial jurisdiction

merely because the respondent No.3 has its office in New Delhi where

interviews have been conducted. There is a difference as to existence of

facts at a place and existence of material facts which give rise to cause of

action. Arising of a fact at a place cannot necessarily be equated to arising

of a cause of action. Cause of action in a case such as the present is the

place where either the appointment will be made/refused or the college

where the petitioner was to be appointed is situated or the place where

authorities such as the respondents No.1 to 3 which have overall statutory

duties and control are situated. Further, cause of action in writ such as the

present will also be with respect to the main averments in the writ petition

which are for challenging the memo dated 29.11.2012 issued by the

respondent No.1, (and whose retrospective application is questioned in the

present writ petition), and respondent No.1 being the State of Haryana sued

through its principal secretary at Chandigarh, accordingly, this Court would

not have territorial jurisdiction qua the main cause of action of challenge

being laid to this memo, and the territorial jurisdiction with respect to such

cause of action for challenging to the territorial jurisdiction will lie in

Chandigarh or Haryana.

5. Useful reference can be made to the judgments of the Supreme

Court in the cases of ONGC vs. Utpal Kumar Basu & Ors., 1994 (4) SCC

711 and Alchemist Ltd. & Anr. vs. State Bank of Sikkim & Ors. , (2007) 11

SCC 335, both of which judgments deal extensively with the issue of

territorial jurisdiction. The following portion of the head note of the

judgment in the case of Alchemist Ltd. (supra) is exhaustive and same is

referred to:-

"A. Constitution of India - Art. 226(2) - Territorial jurisdiction of High Court - Determination of - Arising of "cause of action" within territorial limits of that court - Relevance of -Held, by amendment of Art.226 in the year 1963, accrual of cause of action had been made an additional ground to confer jurisdiction of High court under Art. 226 - Hence, after 1963, cause of action is relevant and germane

for determination of jurisdiction of High Court under Art. 226 - Writ petition can now be instituted in the High Court within territorial jurisdiction of which cause of action in whole or in part arises - Explaining the meaning of "cause of action", further held, whether facts averred by writ petitioner constitute a part of cause of action has to be determined on the basis of question whether such facts constitute a material, essential or integral part of the cause of action - In determining the said question, the substance of the matter and not the form thereof has to be considered.

- In the present case, Govt. of State of S inviting offers for strategic partnership with it in respondent Bank functioning in said State - Appellant Company having its registered office at place C (which was outside the State of S) applying therefor - Respondent Bank accepting the offer of appellant

- Subsequently, the Govt. of State of S rejecting the said acceptance - Hence, appellant filing a writ petition in High Court at C - Dismissal of said petition on ground of want of territorial jurisdiction - Challenge made to - Plea raised by appellant that a part of cause of action had arisen within the territorial jurisdiction of the High Court at C because (i) the appellant was having its registered office at C, (ii) negotiations between both the parties occurred at C, (iii) part-performance of contract also took place at C due to deposit of certain sum by appellant in a bank at C in pursuance of a demand made by respondent Bank in respect thereof, and (iv) letters of acceptance of proposal and rejection thereof were received by appellant at C - Held, the facts pleaded by the appellant were not essential, integral or material facts so as to constitute a part of "cause of action" within the meaning of Art. 226(2) - Hence, High Court was justified in dismissing the writ petition on ground of want of territorial jurisdiction.

- B. Words and Phrases - "Cause of action"- Meaning of - Existence thereof in a suit - Necessity of, for maintainability of suit - Civil Procedure Code, 1908, S.20 (c) & Or. 7

Rr.1(e) & 11(a) and Or. 6 Rr.2 & 4 - Constitution of India, Art.226(2) - Criminal Procedure Code, 1973, S.177.

The question involved in the present appeal was whether a part of the cause of action had arisen within the territorial jurisdiction of the High Court at C so as to entertain a writ petition under Article 226 of the Constitution filed by the appellant Company against the respondents.

The appellant Company was having its registered and corporate office at C. Respondent 2 i.e. State of S was desirous of disinvesting 40% of its equity capital in the bank (Respondent 1) functioning in the said State to a strategic partner with transfer of management in the said bank. For the said purpose, the said State issued an advertisement and invited offers for strategic partnership. Interested parties, firms and companies having management expertise were asked to apply to the first respondent Bank at its head office.

The appellant Company submitted its formal proposal for the strategic business partnership. The Board of Directors of the first respondent Bank shortlisted two entities including the appellant Company. Negotiations took place between the appellant Company and the first respondent Bank. The Chairman and Managing Director of the first respondent Bank visited the place C for further negotiations. The first respondent Bank asked the appellant to deposit a sum of `4.50 crores with State Bank of India in a fixed deposit to show its bona fides. The appellant deposited the said amount with State Bank of India at C and the photocopies of the receipt were handed over to the executives of the first respondent Bank at C.

Through a letter dated 20-2-2004, the first respondent Bank informed the appellant Company that its proposal was accepted in principle subject to consideration and approval of the Government of S. On 23-2-2006, the appellant Company received a communication at C by which the first respondent Bank informed the appellant Company that the

Government of S had not approved its proposal. The appellant Company, therefore, filed a writ petition before the High Court at C. The High Court dismissed the writ petition only on the ground that it did not have territorial jurisdiction to entertain the writ petition as no cause of action had arisen within the territorial jurisdiction of the Court. Hence, the present appeal.

The appellant argued that a part of cause of action had arisen within the territorial jurisdiction of the High Court at C because (i) the appellant Company had its registered and corporate office at C, (ii) the said Company carried on business at C, (iii) the offer of the appellant Company was accepted and the said acceptance was communicated to the appellant at C, (iv) part-performance of the contract took place at C inasmuch as `4.50 crores had been deposited by the appellant Company in a fixed deposit at C as per the request of the first respondent, (v) the Chairman and Managing Director of the first respondent visited C to ascertain the bona fides of the appellant Company, (vi) negotiations were held between the parties at C, and (vi) the letter of revocation was received by the appellant Company at C and the consequences of the revocation ensued at C.

On the other hand, the respondents submitted that neither of the above facts nor circumstances could be said to be a part of cause of action conferring jurisdiction upon the High court at C. According to the respondents, all substantial, material and integral facts constituting a cause of action were within the territory of the State of S and, hence, the High Court was wholly right in dismissing the petition on the ground of want of territorial jurisdiction.

Dismissing the appeal, the Supreme Court.

Held:

By the amendment of Article 226 of the constitution in the year 1963, the accrual of cause of action was made an

additional ground to confer jurisdiction on a High Court under Article 226. The legislative history of the constitutional provisions, makes it clear that after 1963, cause of action is relevant and germane and a writ petition can be instituted in a High Court within the territorial jurisdiction of which cause of action in whole or in part arises.

The expression "cause of action" has neither been defined in the Constitution nor in CPC. It may, however, be described as a bundle of essential facts necessary for the plaintiff to prove before he can succeed. Failure to prove such facts would give the defendant a right to judgment in his favour. Cause of action thus gives occasion for and forms the foundation of the suit. If there is no cause of action, the plaint or petition has to be dismissed.

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 facts constitute a material, essential, or intergral part of the cause of action. If it is, it forms a part of cause of action. If is it not, it does not form a part of cause of action. In determining the said question, the substance of the matter and not the form thereof has to be considered. 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 the present case, the facts which have been pleaded by the appellant Company cannot be said to be essential, integral or material facts so as to constitute a part of "cause of action" within the meaning of article 226(2) of the Constitution. The High court at C, therefore, was justified in dismissing the petition on the ground of want of territorial jurisdiction." (underlining added)

6. Similarly in the case of ONGC (supra), the Supreme Court has

observed that once there is no territorial jurisdiction, Court should not

exercise jurisdiction with respect to such a case.

7. In my opinion, merely by conducting interviews at Delhi with

respect to appointment which arises for various colleges in Haryana, will not

mean that whole or part of cause of action has arisen in Delhi for this Court

to have territorial jurisdiction. Also the memo which is challenged is of

respondent No.1 which is not issued at Delhi and nor applicable at Delhi.

8. In view of the above, the writ petition is dismissed as this Court

lacks territorial jurisdiction to hear and dispose of this writ petition.

Petitioner is given liberty to approach the Court of appropriate territorial

jurisdiction.

VALMIKI J. MEHTA, J FEBRUARY 12, 2013 ak