Jammu & Kashmir High Court

Narender Kumar vs Union Of India And Ors on 3 September, 2021

    IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                            SWP 2912/2010
                                            IA No. 01/2017

                                          Reserved on:    31.08.2021

                                          Pronounced on: 03.09.2021


Narender Kumar                                       ... petitioner
                              Through: -Mr.Vishal Dogra Advocate.

                     Vs.

Union of India and ors

                                                         respondent(s)
                             Through: -     Mr. Rohan Nanda CGSC

CORAM:          HON'BLE MR. JUSTICE SANJEEV KUMAR JUDGE

                             JUDGMENT

1 Through the instant petition preferred under Article 226 of the

Constitution of India read with Section 103 of Constitution of Jammu

and Kashmir, the petitioner has sought the issuance of a writ in the

nature of Certiorari for quashing order No. Estt/SSFC-

51Bn/90Bn/09/1064999 dated 05.06.2009 issued by respondent No.3

and order dated 19th July, 2010 passed by respondent No.2. The

petitioner has questioned order dated 05.06.2009 issued by

Commandant, 90 Battalion BSF by which punishment of dismissal

from service has been imposed upon him, inter alia, on the ground

that respondent No.3, while passing the order of dismissal from

service, has not followed the provisions of Rule 45 of Border

Security Force Rules of 1969. The order dated 19th July, 2010 passed

by respondent No.2 in the statutory appeal filed by the petitioner

upholding the order dated 05.06.2009 has also been questioned on

the ground that the appellate authority i.e respondent No.2 herein 2 SWP 2912/2010

while rejecting his statutory appeal filed under Section 117(2) of

BSF Act did not grant any opportunity of hearing to the petitioner

which was necessary in this case and, therefore, the order passed by

respondent No.2 in the statutory appeal filed by the petitioner is

illegal being violative of principles of natural justice.

2 Mr. Rohan Nanda learned CGSC representing the

respondents, has raised a preliminary objection with regard to the

maintainability of this petition on the ground that this Court lacks

territorial jurisdiction to entertain the instant petition. It is claimed

that since no cause of action or part thereof has arisen within the

territorial jurisdiction of this Court, as such, this Court lacks

territorial jurisdiction to entertain this writ petition. He submits that

the orders impugned have been passed by the authorities located

outside the territorial jurisdiction of this Court. He submits that

merely because the order passed by respondent No.2 in the statutory

appeal filed by the petitioner was communicated to him within the

territorial jurisdiction of UT of Jammu and Kashmir does not mean

that a part of action has accrued in the Union Territory of J&K which

is subject to the jurisdiction of this Court.

3 Having heard learned counsel for the parties on the point of

territorial jurisdiction of this Court to entertain this petition, I am of

the considered view that the objection raised by the learned CGSC

has merit and must sustain.

4 The Court of Inquiry was ordered by respondent No.3 with

regard to the allegations levelled against the petitioner when the

petitioner was attached with 90 Bn BSF, Roshanbagh, West Bengal.

3 SWP 2912/2010

The Court of Inquiry was held in the Sector Headquarter Bn BSF

Roshanbagh Murshidabad, West Bengal. Therefore, merely,

communicating the order passed by respondent No.2 in the statutory

appeal filed by the petitioner at Jammu or filing of appeal by

petitioner from Jammu does not mean that a part of cause of action

has accrued in the Union Territory of J&K.

5 The issue which begs determination in this case is, as to

whether conveying the order impugned to the petitioner at Jammu

can be tantamount to accrual of cause of action or part thereof within

the territorial jurisdiction of this Court.

6 The issue of territorial jurisdiction of High Courts under

Article 226 of the Constitution of India has been subject matter of

debate in several cases that have come before various High Courts

including this Court. In some cases, the matter has landed before the

Hon‟ble Supreme Court as well. Prior to the Constitutional (Fifteenth

Amendment) Act, 1963, the concept of cause of action was alien for

adjudication of disputes by the High Court under Article 226 of the

Constitution and the jurisdiction of the High Court under Article 226

of the Constitution was exercisable throughout the territories in

relation to which the High Court exercised jurisdiction, meaning

thereby that Writs issued by the Court could not run beyond the

territories subject to its jurisdiction.

7 The question, whether the concept of cause of action could

be imported from the Code of Civil Procedure in Article 226 of the

Constitution as it stood prior to the amendment was considered by

the Hon‟ble Supreme Court in the case of Election Commission, 4 SWP 2912/2010

India vs. Saka Venkata Subba Rao, AIR 1953 SC 210 and this is

what was held by the Supreme Court in that case as under:

"The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories in relation to which the High Court exercises jurisdiction".

8 When this matter was brought to the notice of the

Parliament, looking to the inconvenience felt by the citizens, an

amendment was introduced in Article 226 of the Constitution. Clause

(2) of Article 226 of the Constitution as was added to Article 226 of

the Constitution whereby the concept of cause of action was inserted,

reads thus:

"226(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"

9 The issue with regard to exercise of jurisdiction under

Article 226 of the Constitution in the context of cause of action fell

for consideration before the Hon‟ble Supreme Court in the case of

State of Rajasthan vs. Swaika Properties and another,(1985) 3

SCC 217. In the said case, the precise question that came up for

consideration was as to whether the service of notice under Section

52(2) of the Rajasthan Urban Improvement Act, 1959 served upon 5 SWP 2912/2010

the Swaika Properties at its Calcutta office was an integral part of

cause of action and was sufficient to invest the Calcutta High Court

with the jurisdiction to entertain a petition under Section 226 of the

Constitution. It may be noted that Swaika Properties owned some

land in the outskirts of Jaipur City. The Special Officer of Town

Planning Department, Jaipur issued notice under Section 52 of the

Act for acquiring the land for public purpose under the Development

Scheme. The notice was served upon Swaika Properties at its

Calcutta office and in compliance thereto, they appeared before the

Special Officer, Town Planning Department, Jaipur and denied the

existence of public purpose for acquisition of the land. In the writ

petition filed before the Calcutta High Court, an objection was raised

with regard to the territorial jurisdiction of the Court to entertain the

writ petition. The Calcutta High Court ruled in favour of the writ

petitioner and the matter reached the Apex Court. It would be

relevant to quote relevant paragraph of the judgment rendered by the

Apex Court in the aforesaid case, which reads thus:

"...........The mere service of notice under s. 52(2) of the Act on the respondents at their registered of ice 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 the 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 the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Art. 226(2) of the Constitution must depend upon the nature of the 6 SWP 2912/2010

impugned order giving rise to a cause of action. The notification dated February 8 , 1984 issued by the State Government under Section 52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department Jaipur under Section 52(2) for the grant of an appropriate writ , direction or order under Art. 226 of the Constitution for quashing the notification issued by the State Government under Section. 52(1) of the Act...."

10 To the similar effect is the judgment of the Supreme Court in

1994 SCC (4) 711, Oil & Natural Gas Commission vs Utpal

Kumar Basu wherein the Supreme Court considered the meaning of

"cause of action" and held that "cause of action" would mean bundle

of facts which the petitioner must prove, if traversed, to entitle him to

a judgment in his favour by the Court. Para 6 of the judgment is

relevant and is reproduced hereunder:

"6. It is well settled that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh' Lord Watson said:

"... the cause of action has no relation whatever 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 entirely to the ground set forth in the plaint as the 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."

7 SWP 2912/2010

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 cause of action had arisen within the jurisdiction of the Calcutta High Court."

11 There is series of judgments by the Supreme Court on the issue

and notable amongst them is the judgment in Alchemist Limited

and another vs State Bank of Sikkim and others, (2007) 11 SCC

335. In the said case, the Supreme Court considered the parameters

and essential elements of cause of action. It was held that the test

would be whether a particular fact or facts is/are of substance and can

be said to be material, integral or essential part of the lis between the

parties. If it is, it forms a cause of action or a part thereof and if it is

not, it does not form a part of cause of action.

While deciding the issue, the substance of the matter, not the form

thereof, has to be considered 8 SWP 2912/2010

12 The observations of the Supreme Court contained in

paragraphs 20, 21, 25, 35, 36, 37 and 38 are relevant and are

reproduced hereunder.

"20.It may be stated that the expression 'cause of action' has neither been defined in the Constitution nor in the Code of Civil Procedure, 1908. 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".

21. The classic definition of the expression 'cause of action' is found in Cooke v. Gill, wherein Lord Brett observed:

"'Cause of action' means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court".

25. The learned counsel for the respondents referred to several decisions of this Court and submitted that whether a particular fact constitutes a cause of action or not must be decided on the basis of the facts and circumstances of each case. In our judgment, the test is whether a particular fact(s) is (are) of substance and can be said to be material, integral or essential part of the lis between the parties. If it is, it forms a part of cause of action. If it is not, it does not form a part of cause of action. It is also well settled that in determining the question, the substance of the matter and not the form thereof has to be considered".

35. Negativing the contention and upholding the order passed by the High Court, this Court ruled that passing of a legislation by itself does not confer any such right to file a writ petition in any Court unless a cause of action arises 9 SWP 2912/2010

therefor. The Court stated; (Kusum Ingots case, SCC p.261 para 20)

"20. A distinction between a legislation and executive action should be borne in mind while determining the said question". Referring to ONGC, it was held that all necessary facts must form an 'integral part' of the cause of action. The fact which is neither material nor essential nor integral part of the cause of action would not constitute a part of cause of action within the meaning of Clause (2) of Article 226 of the Constitution".

36. In National Textile Corporation. Ltd. & Ors. v. Haribox Swalram & Ors, referring to earlier cases, this Court stated that (SCC p.797, para 12.1)

"12.1...the mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained."

37. From the aforesaid discussion and keeping in view the ratio laid down in catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the petitioner-appellant, would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. 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.

(Emphasis supplied)

38. In the present case, the facts which have been pleaded by the Appellant Company, in our judgment, cannot be said to be essential, integral or material facts so as to constitute a part of 'cause of action' within the meaning of 10 SWP 2912/2010

Article 226(2) of the Constitution. The High Court, in our opinion, therefore, was not wrong in dismissing the petition".

13 The other equally notable case which has become locus

classicus on the point of jurisdiction of the High Court under Article

226 of the Constitution is Nawal Kishore Sharma v. Union of

India, (2014) 9 SCC 329. The question fell for consideration of the

Supreme Court in the context of facts that Nawal Kishore Sharma,

appellant had joined the off-shore Department of Shipping

Corporation of India and was transferred to main fleet in the Foreign

Going Department. In the year 2009, he was found to be medically fit

by Marine Medical Services, but he reported to be sick in the year

2010. He was sent for medical treatment at Adani, Mundra Port

where he was advised Hospitalization by the Medical Officer

concerned. Thereafter, he was declared medically unfit for „Seaman‟

due to dilated cardiomyopathy. The Government of India, vide its

order dated 12.04.2011, cancelled the registration of the appellant as

a Seaman. After being relieved from the service, he shifted to his

native place Gaya from where he sent several letters/representations

to his employer for financial claim. In the disability claim, the

Corporation, vide its letter dated 07.10.2011, informed the appellant

that since he was declared unfit for the Sea-service due to heart

problem, he would be entitled to Rs.2,75,000/-. However, the said

amount was not accepted by the appellant and he approached the

Patna High Court by way of a writ petition where the issue of

maintainability of writ petition with regard to territorial jurisdiction

of the Court arose.

                                11               SWP 2912/2010

14    The Patna High Court ruled that no cause of action or part

thereof had accrued within the territorial jurisdiction of the Court

and, therefore, the writ petition was not maintainable. The matter

reached the Hon‟ble Supreme Court. The Hon‟ble Supreme Court in

the aforesaid case held that, answer a question whether the service of

notice was an integral part of cause of action within the meaning of

Article 226(2) of Constitution of India must depend the nature of the

order giving rise to cause of action. The Court further held that every

fact pleaded by the respondents in their application does not ipso

facto lead to the conclusion that those facts give rise to a cause of

action within the Court‟s territorial jurisdiction, unless those facts are

such which have a bearing with the lis or the dispute involved in the

case. The Court also held that even fraction of cause of action would

give territorial jurisdiction to the High Court. The observations of the

Supreme Court in paragraph 20 and 21 are noteworthy and are

reproduced hereunder.

"20. 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 12 SWP 2912/2010

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".

"21. Apart from that, from the counter affidavit of the respondents and the documents annexed therewith, it reveals that after the writ petition was filed in the Patna High Court, the same was entertained and notices were issued. Pursuant to the said notice, the respondents appeared and participated in the proceedings in the High Court. It further reveals that after hearing the counsel appearing for both the parties, the High Court passed an interim order on 18.9.2012 directing the authorities of Shipping Corporation of India to pay at least a sum of Rs.2.75 lakhs, which shall be subject to the result of the writ petition. Pursuant to the interim order, the respondent Shipping Corporation of India remitted 13 SWP 2912/2010

Rs.2,67,270/- (after deduction of income tax) to the bank account of the appellant. However, when the writ petition was taken up for hearing, the High Court took the view that no cause of action, not even a fraction of cause of action, has arisen within its territorial jurisdiction".

15 From the aforesaid judgments of the Hon‟ble Supreme Court,

the following prepositions can be culled out on the issue of territorial

jurisdiction of the High Court under Article 226 of the Constitution:

(i) That there is two fold limitations on the power of the

High Court to issue writs under Article 226 of the Constitution;

(a) The power is to be exercised throughout the territories in relation to which the High Court exercises jurisdiction i.e the writs issued by the Courts cannot run beyond the territories subject to its jurisdiction

(b) A person or authority to whom the High Court is empowered to issue such writs must be within those territories which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories.

(This was the position of law till the Constitutional (Fifteenth Amendment) Act, 1963 whereby the concept of cause of action was introduced by adding clause (2) to Article 226 of the Constitution).

(ii) that the High Court was also conferred the jurisdiction in

relation to the territories within which;

(a) cause of action, wholly or in part arises; and

(b) even a fraction of cause of action is a part of cause of action and is sufficient enough to vest the jurisdiction in the High Court, provided it arises within the territories in relation to which the High Court exercises its jurisdiction;

14 SWP 2912/2010

(iii) cause of action or part thereof or fraction of cause of action must be one which is material, integral or essential part of the lis.

16 In the light of the aforesaid propositions of law when the

instant case is examined, it becomes evident that the facts pleaded in

the writ petition do not indicate or demonstrate that the cause of

action or part thereof or even a fraction of cause of action which is

integral or material to the lis between the parties has arisen within the

territorial jurisdiction of this Court. The allegations which have been

enquired into by the respondents pertain to the period when the

petitioner was attached with 90 Bn BSF under Sector HQ

Roshanbagh Murshidabad (WB). The acts or omissions alleged

against the petitioner have been committed outside the territorial

jurisdiction of this Court. The orders impugned have been passed by

the authorities not located anywhere in Jammu and Kashmir. Simply

because the statutory appeal was filed and order passed by

respondent No.2 in the statutory appeal filed by the petitioner has

been conveyed to the petitioner at Jammu is not sufficient to vest the

jurisdiction in this Court to entertain the petition. The

communication issued to the petitioner informing him about the

outcome of the appeal sent to his address in Jammu and Kashmir

does not, by any stretch of reasoning, constitute even a fraction of

cause of action integral to the lis and sufficient enough to clothe this

Court with the territorial jurisdiction to entertain this petition.