Gujarat High Court

Solanki Dalpatsinh Babusinh vs The Union Of India on 23 February, 2021

Bench: Sonia Gokani, Sangeeta K. Vishen

        C/SCA/12894/2020                                ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 12894 of 2020

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                     SOLANKI DALPATSINH BABUSINH
                                Versus
                          THE UNION OF INDIA
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Appearance:
MR DP KINARIWALA assisted by MR NIKUNJ D BALAR(2763) for the
Petitioner(s) No. 1
for the Respondent(s) No. 2
MR PY DIVYESHVAR(2482) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
        and
        HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                            Date : 23/02/2021

                        ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. This is a petition under Article 226 of the Constitution of

India with the following prayers: -

"(a) Your Lordships may be pleased to allow this petition;

(b) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to pay the AGI benefits and other death benefits as referred in the communication dated 11.08.2020 along with other benefits for which, the deceased son of the present was entitled to;

(c) Be pleased to grant any other relief/s as may deem fit and proper, in the interest of justice."

2. At the request of both the sides, the matter has been heard

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finally at the stage of admission.

3. The brief facts leading to the present petition are as

follows: -

3.1. The petitioner married one Kailashba in the year 1993.

Three children were born out of the said wedlock namely

Vishalsinh, Shitalba and Pruthviraj. Vishalsinh joined National

Army. He was serving in 103, Engineer Regiment at Bikaner. He

became martyr while serving the Army and the Bombay Engineer

Group, Pune vide communication dated 18.10.2019

communicated to the petitioner about the death of his son.

3.2. On 28.10.2019, the petitioner was provided a cheque of Rs.

10,000/- from Bombay Sappers Association by way of immediate

relief. He also received communication on 30.10.2019 about 'No

Objection' Certificate for payment of second trench of Rs.

2,00,000/- from Army Central Welfare Fund Grant.

3.3. On 07.11.2019, he was communicated with respect to the

payment of Army Group Insurance (AGI) Benefits. He was also

required to submit certain documents as mentioned in the

communication at the time of getting the benefits of AGI. He

submitted the same on 07.11.2019. The details of saving bank

account, as required in the communication, had been furnished

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by him. He also gave family details, indemnity bond and death

certificate except no objection certificate of his mother.

3.4. It is the say of the petitioner that instead of filing no

objection certificate from the mother of the deceased and the wife

of the present petitioner, the affidavit came to be filed on

01.10.2014 where the Court granted the decree of dissolution of

marriage. The date on which the affidavit was affirmed, he did

not have legally wedded wife.

3.5. It is lamented by the petitioner that on 11.08.2020, he was

informed that he was not entitled to any benefits as referred to in

the communication. He was also warned not to communicate

further in respect of the terminal benefits in future.

3.6. It is the say of the petitioner that his son Vishalsinh was

staying with the present petitioner along with the parents of the

petitioner and his wife was separated from him. An Application

under Sections 7 and 25 of the Guardians and Wards Act had

been preferred before the District Court, Himmatnagar

numbered as Guardian Application No. 225 of 2012. This

application was rejected on 28.06.2017. By then, since

Vishalsinh was major, there was no prayer in respect of his

guardianship and his wife has also never claimed the

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guardianship of Vishalsinh.

4. The petitioner, therefore, has approached this Court

essentially on the ground that there are sufficient number of

communications with the petitioner and hence, the respondents

are estopped from issuing any type of communication.

5. Affidavit-in-reply has not been filed by learned Central

Government Standing Counsel, Mr. P.J.Divyeshwar and on

seeking instructions, he chose to make detailed oral

submissions.

6. Learned advocate Mr. Kinariwala appearing for the

petitioner states that it is the right of the father to get the post-

death benefits of his son and also the AGI. With no claim having

been made by the mother, merely because no objection

certificate has not been given by her, that would not mean that

the father would not have right as is being pleaded. He has

emphasized that the part of cause of action has arisen in Gujarat

and this Court also would have jurisdiction to entertain this

petition.

6.1. He has relied on the decision rendered in case of

NAVINCHANDRA N. MAJITHIA vs. STATE OF MAHARASHTRA

AND OTHERS [2000 (7) SCC 640].

         C/SCA/12894/2020                                    ORDER




7.    Learned      Central   Government       Standing    Counsel          Mr.

Divyeshwar has fervently urged that this petition itself is not

maintainable. There are number of disputed questions of facts

and they shall need to be resolved by appropriate authority. He

has urged that the petitioner never joined his wife and there was

further no bonding legal or otherwise as a family. This Court

would have no jurisdiction as the cause of action has not arisen

here. Again, the petitioner is also an employee of the State

Government. He further has submitted strenuously that when

there are various disputed questions of facts, the Court need not

entertain the writ petition.

8. On thus hearing both the sides, for the reasons to follow

hereinafter, this petition merits no acceptance.

9. It is to be noticed that the present petitioner had moved a

Civil Application (Guardian) No. 225 of 2012 as per Sections 7

and 25 of the Guardians and Wards Act, claiming the custody of

all the three children who were of 16, 13 and 8 years

respectively at the relevant point of time, where the Court was

required to decide certain issues before handing over the

custody. It adjudicated whether he was entitled to the custody of

minor children and whether he could provide better education,

C/SCA/12894/2020 ORDER

care and protection to the children and answered both these

questions in negation. The Court, after dealing with the issues

raised before it, has held that though the applicant - petitioner is

the father and natural guardian of the minor children, the

mother is also the natural guardian and as the daughter of the

parties - Shitalba expressed willingness to remain under the

custody of the mother instead of the father, from the overall

consideration, the Court chose to handover the custody to the

mother.

10. It appears that since the deceased was the eldest in the

family, he and his sister had attained majority by the time the

Court decided the matter. The Court also noted that the children

were willing to be in the custody of the mother although, she has

no sufficient means and the Court respected the wishes of the

children.

11. In the H.M.P. No. 41 of 2012, the decree of divorce was

delivered in favour of the spouses who had preferred to obtain

such decree under Sections 13(I)(A),13(I)(B) and 13(I) of the

Hindu Marriage Act, 1955. The Court allowed the decree of

divorce on 01.10.2014. In application for maintenance preferred

by the wife being Criminal Misc. Application No. 27 of 2014,

maintenance was allowed granting the wife, daughter and one

C/SCA/12894/2020 ORDER

son namely Pruthviraj Rs. 2,000/- each.

12. It is quite apparent from the various litigations between the

spouses that the matrimonial life of the parents of the deceased

had been quite disturbing. The son died at a very young age in

Army and therefore, the petitioner is claiming his post death

service rights and particularly the AGI. The communication

addressed to the petitioner is to the effect that he was not

communicated although he was time and again communicated

on 18.10.2019, 28.10.2019, 30.10.2019 and 07.11.2019

granting immediate relief of Rs. 10,000/- and then second

trench of Rs. 2,00,000/- and thereafter, payment of Army Group

Insurance Benefits. Lastly, on realizing various past disputes

between the parents of the deceased employee and the retaining

of custody of the children by mother, when the petitioner raised

the issue of nonpayment of AGI benefit and other benefits

including the PF contribution, pension and death gratuity to

him, a communication dated 11.08.2020 has been issued on the

employer's side. Vital would be to reproduce the same: -

"NON PAYMENT OF AGI BENEFITS AND OTHER DEATH BENEFITS INCLUDING PF CONTRIBUTION, PENSION AND DEATH GRATUITY TO THE FAMILY OF NO 15591223X LATE SAPPER SOLANKI VISHALSINH DALPATSINH

Respected Sir/Madam,

C/SCA/12894/2020 ORDER

1. Please refer application dated 19 June 2020 received from Shri Solanki Dalpatsinh Babusinh F/O Late Sappar Solanki Vishalsinh Dalpatsinh (Photocopy enclosed).

2. In this connection photocopies of following policy/Special Army Order are enclosed herewith: -

(a) Para 1308(f) of Record Office Instructions 2013 and Para 19 of Special Army Order 10/S/76.

(b) Para 1309 (a) and Appendix 'H' to Special Army Order 10/S/76.

(c) Judgment of the Principal District Judge, Sabarkantha, Himmatnagar on Application (Guardian) No. 225 of 2012 filed by Shri Solanki Dalpatsinh Babusinh (Father of the deceased soldier) against Smt Kailashba Dalpatsinh Solanki (Mother of the deceased soldier).

3. Refer Para 2 (a) above. It is clearly mentioned in the policy and Special Army Order 10/S/76 that nomination regarding heir to estate in the kindred roll is not a 'WILL' and person nominated therein cannot be treated as the legal beneficiary of the nomination.

4. Refer Para 2(b) above. It has been stated in the policy and Special Army Order 10/S/76 that the estate is payable in equal shares to the mother, widow and children of the deceased. If the deceased has not left behind any of these relatives, the entire amount is payable to his father. This is in accordance with Section 10 of the Hindu Succession Act 1956.

5. Refer Para 2(c) above. It has been found from the Judgment of the Principal District Judge, Sabarkantha, Himmatnagar that a case for guardian of the minor children was filed vide Guardian Application No. 225/2012 by Shri Solanki Dalpatsinh Babusinh against his divorced wife Smt Kailashba Dalpatsinh Solanki, but the application

C/SCA/12894/2020 ORDER

was rejected by the H'ble Court on 28 June 2017 and Smt Kailashba Dalpatsinh Solanki was considered to be natural guardian of the children.

6. In addition to above, an application was also received from Smt Kailashba Dalpatsinh Solanki wherein it was found that the deceased soldier was living with his mother, sister and brother. The deceased soldier was the only source of income of the family left by Shri Solanki Dalpatsinh Babusinh, who is presently serving in Gujarat Police.

7. Apropos, the correspondence made by Shri Solanki Dalpatsinh Babusinh is causing undue delay in finalisation of terminal benefits to be paid to the family of the deceased soldier. Hence, it is requested that Shri Solanki Dalpatsinh Babusinh may be warned not to make infractious correspondence with regard to terminal benefits in future being a State Government Employee.

8. For information and necessary action please.

Thanking you."

13. It has thus been made very clear that the deceased was the

only source of income to the family and to his mother and unless

they are not there, father's right could have been considered. The

present petitioner is serving the Police Force in the State of

Gujarat. It was also conveyed in no unclear terms that he is

causing undue delay in terminal benefits to be paid to the family

of the deceased. He should be warned not to be made any

infractious correspondence for the terminal benefits being the

State Government employee.

14. Apt would be to refer to the decision rendered in case of

C/SCA/12894/2020 ORDER

NAWAL KISHORE SHARMA vs. UNION OF INDIA AND

OTHERS [2014 (9) SCC 329]: -

""6. Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court."

15. In Kusum Ingots & Alloys Ltd. vs. Union of India and Another, (2004) 6 SCC 254, this Court elaborately discussed Clause (2) of Article 226 of the Constitution, particularly the meaning of the word 'cause of action' with reference to Section 20(c) and Section 141 of the Code of Civil Procedure and observed:- "9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts.

10. Keeping in view the expressions used in clause (2)

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of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter." Their Lordships further observed 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 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 conveniens.""

14.1. Thus what is vital is the integral and material facts

pleaded and averred in the petition while deciding the issue of

jurisdiction and a small part of cause of action even if has arisen

within the jurisdiction of High Court may not be significant nor

determinative of the entertainment of writ in this Court.

Although, in the instant case, except the receipt of

correspondence from the employer, the cause has not arisen

within the jurisdiction of this Court, even if it is held that a small

part of cause has arisen within the territory of Gujarat, this

petition is not deserving entertainment on other counts as

mentioned hereinafter and as discussed in this petition.

15. Noticing the various litigations by and between the parties