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2015 DIGILAW 289 (JK)

Manzoor Ahmad Shiekh v. Union of India

2015-06-01

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This LP Appeal is preferred against the order of the learned Single Judge made in S.W.P. No. 07 of 2009 dated 26.08.2014 wherein the appellant challenged order dated 05.12.2000 as well as order dated 25.06.2009 and for direction to the respondents to re-instate the appellant with all consequential benefits. The said writ petition was dismissed for want of territorial jurisdiction. The case of the appellant before the learned Single Judge was that he was enrolled in the Border Security Force in 1997 and after completing the basic training was assigned registration No. 98000112. The appellant was posted in 102 Bn, BSF and he served at various places when said Battalion moved from one place to another. On 04.08.2000, while the appellant was serving in West Bengal, due to his illness he applied for leave and he was permitted to leave the station and he visited his native place at Anantnag for getting medical treatment. According to the appellant he consulted the Doctors for getting treatment for his mental ailment and he was admitted in State Mental Hospital & Surgery, Rainawari from 10.08.2000 to 04.01.2001. When the appellant approached for resumption of his duties, he was not permitted to join and he was handed over the order of dismissal dated 05.12.2000. According to the appellant he filed appeal/representation/review against the said order through proper channel under Rule 167 of the Border Security Rules. It is alleged that his first representation was dated 16.01.2001 followed with representations dated 16.03.2001, 17.11.2001, 17.11.2007 and 10.03.2008 and ultimately his representation was rejected on 25.06.2009. The said order dated 25.06.2009 rejecting his representation and the order of dismissal dated 05.12.2000 were challenged by the appellant before this Court in SWP No. 07/2009. 2. In the said writ petition counter affidavit was filed by the respondents, questioning the maintainability of the writ petition on the ground that the dismissal order has been passed at Malda, West Bengal and the said order could be challenged before the Court within the territorial jurisdiction of Kolkata High Court. 3. Mr. M.A. Qayoom, learned counsel for the appellant contended that the show cause notice was served to the appellant at Dialgam, Anantnag, the order rejecting his representation was communicated to him at Anantnag, and the Apprehension Roll having been sent to District Magistrate, Anantnag, therefore, this Court has got the jurisdiction. 3. Mr. M.A. Qayoom, learned counsel for the appellant contended that the show cause notice was served to the appellant at Dialgam, Anantnag, the order rejecting his representation was communicated to him at Anantnag, and the Apprehension Roll having been sent to District Magistrate, Anantnag, therefore, this Court has got the jurisdiction. The learned counsel also contended that the order rejecting his representation/review having been passed at Delhi, the writ petition challenging the said order before this Court is maintainable. The learned counsel relied upon the judgment of Hon'ble the Supreme Court reported in (2001) 9 SCC 525 (Dinesh Chandra Gahtori v. Chief of Army Staff and anr) in support of his contention that the writ petition before this Court is maintainable. 4. The said stand was opposed by Mr. S.A. Makroo, learned standing counsel appearing for the respondents by contending that no cause of action or any part of cause of action has arisen within the territorial limits of this Court to maintain the writ petition. Learned counsel also submitted that mere service of show cause notice or order of rejection of the appeal of the appellant which was filed belatedly, will not give any cause of action to file the writ petition before this Court. The learned counsel also cited several decisions in support of his contention. The learned counsel ultimately submitted that the appellant can either maintain his writ petition, if he has got any right to agitate, only before the Kolkata High Court or before Delhi High Court where the appellate authority has passed the order rejecting his appeal and has prayed for dismissal of the appeal. 5. We have considered the rival submissions and the judgments relied upon by the respective counsels. 6. It is a fact that the appellant was enrolled in the Border Security Force in February, 1998 and after completing the training he was posted in 102 Bn at Malda, West Bengal. According to the respondents the appellant reported back on 13.11.1999 after staying away from duty for 124 days. For that offence he was tried by Summary Security Force Court on 06.12.1999 at Malda, West Bengal and three months rigorous imprisonment in Force custody was imposed on him. According to the respondents the appellant reported back on 13.11.1999 after staying away from duty for 124 days. For that offence he was tried by Summary Security Force Court on 06.12.1999 at Malda, West Bengal and three months rigorous imprisonment in Force custody was imposed on him. On 04.08.2000 when his Company was stationed at Sasani under Malda Sector, West Bengal, he again absented without leave and a Court of Inquiry was conducted in terms of Section 62 of the Border Security Force Act and apprehension roll was issued under Section 61 of the BSF Act which was communicated to the District Magistrate Anantnag to apprehend the appellant. A show cause notice was also issued which was served to the appellant at his home address and by order dated 05.12.2000 the appellant was dismissed from service and he submitted representation for his re-instatement which was rejected on 25.06.2009. 7. The above stated facts clearly reveal when that the appellant failed to report for duty at Malda, West Bengal, apprehension roll was issued at Malda, West Bengal which was served to the appellant at his residence at Anantnag. Thereafter a show cause notice was prepared at Malda and served to the appellant at Anantnag. The order of dismissal was passed at Malda and handed over to the appellant at Malda, West Bengal when he approached for resuming his duty. Thus it is evident that only the show cause notice and the apprehension roll was served to the appellant at Anantnag. Whether those facts alone will confer jurisdiction to this Court is the real issue. 8. Mere serving of show cause notice whether will give cause of action to file a case in the Court within whose territorial jurisdiction the notice was served, was already considered by Hon'ble the Supreme Court in the decision reported in 1994 SCC (4) 711(Oil & Natural Gas Commission v. Utpal Kumar Basu). In the decision reported in (2007) 11 SCC 335 (Alchemist Ltd. v. State Bank of Sikkim), the decision of the Punjab and Haryana High Court in not entertaining the writ petition was upheld by Hon'ble the Supreme Court as the respondent in the said writ petition viz., State Bank of India, Sikkim, was having its head office at Gangtok. In the decision reported in (2007) 11 SCC 335 (Alchemist Ltd. v. State Bank of Sikkim), the decision of the Punjab and Haryana High Court in not entertaining the writ petition was upheld by Hon'ble the Supreme Court as the respondent in the said writ petition viz., State Bank of India, Sikkim, was having its head office at Gangtok. Several proposals were received from various entities throughout the country and the bank informed the appellant company, who was at Chandigarh, that its proposal was accepted in principle, subject to consideration and approval of the Government of Sikkim. The appellant Company received a communication at Chandigarh, not approving the proposal and sought to withdraw the proposal. The said action was challenged before the Punjab & Haryana High Court in the writ petition and the same was dismissed on the ground that the Punjab & Haryana High Court did not have territorial jurisdiction to entertain the writ petition as no cause of action has arisen within the territorial jurisdiction of that Court. The said order was challenged before the Supreme Court contending that the appellant Company has its registered and Corporate Office at Chandigarh; it carries on business at Chandigarh; the acceptance of offer of the appellant Company was communicated at Chandigarh; the part-performance of the contract viz., 4.50 crores had been deposited by the Company in a fixed deposit at Chandigarh; and the revocation order was received at Chandigarh office, among other things. The respondent State Bank of India, Sikkim, resisted the case by contending that the respondent's Corporate Office is at Gangtok, Sikkim; offers were called for from various parties at Gangtok; the offers were scrutinized and decision to accept the offer was taken at Gangtok; the decision not to approve the proposal was taken at Gangtok; the resolution to withdraw the letter of acceptance was passed at Gangtok; and a communication was dispatched to the appellant Company at Chandigarh. The Supreme Court considered the provision contained in Article 226(1)(a) of the Constitution of India and answered the said issue in paragraphs 19 to 24 which read thus:- "19. The question for our consideration is as to whether the assertion of the appellant is well founded that a part of cause of action can be said to have arisen within the territorial jurisdiction of the High Court of Punjab and Haryana. The question for our consideration is as to whether the assertion of the appellant is well founded that a part of cause of action can be said to have arisen within the territorial jurisdiction of the High Court of Punjab and Haryana. Whereas, the appellant Company submits that a part of cause of action had arisen within the territorial jurisdiction of that Court, the respondents contend otherwise. 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 ((1873) 8 CP 107 : 42 LJCP 98) 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." 22. For every action, there has to be a cause of action. If there is no cause of action, the plaint or petition has to be dismissed. 23. Mr. Soli J. Sorabjee, Senior Advocate appearing for the appellant Company placed strong reliance on A.B.C. Laminart (P) Ltd. v. A.P. Agencies (1989) 2 SCC 163 : AIR 1989 SC 1239 ) and submitted that the High Court had committed an error of law and of jurisdiction in holding that no part of cause of action could be said to have arisen within the territorial jurisdiction of the High Court of Punjab and Haryana. He particularly referred to the following observations: (SCC p. 170, para 12) "12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it 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." 24. In our opinion, the High Court was wholly justified in upholding the preliminary objection raised by the respondents and in dismissing the petition on the ground of want of territorial jurisdiction." In paragraphs 37 to 39, the Supreme Court further held as follows: "37. From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that 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 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. 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 Article 226(2) of the Constitution. 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 Article 226(2) of the Constitution. The High Court, in our opinion, therefore, was not wrong in dismissing the petition." Whether receiving of an order within the territorial limits of a High Court will confer jurisdiction was considered by Hon'ble the Supreme Court in the decision reported in AIR 1999 SC 2362 (C.B.I. Anti Corruption Branch, Mumbai v. Narayan Diwakar). In the said judgment the entertaining of the writ petition seeking to quash the FIR on the ground that FIR was communicated at Itanagar, Arunachal Pradesh, was a part of cause of action for filing the writ petition before the Gauhati High Court. Hon'ble the Supreme Court held that entertaining of the writ petition by the Gauhati High Court was not maintainable. In the decision reported in AIR 2002 SC 126 (Union of India and Ors. v. Adani Exports Ltd. and Anr.), it is held that in order to confer jurisdiction on a High Court to entertain a writ petition the High Court must satisfy from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the Court to decide the dispute which has, at least in part, arisen within its jurisdiction. It is clear that each and every fact pleaded in the application does not ipso facto lead to the conclusion that those facts give rise to a cause of action unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. In the decision reported in AIR 2004 SCV 1998 (1), (National Textile Corporation Ltd. and Ors. v. M/s. Haribox Swalram and Ors.), Hon'ble the Supreme Court reversed the Division Bench judgment of Calcutta High Court in entertaining the writ petition and held that mere communication of the message or where the writ petitioner resides or carries on the business, will not be a determinative factor to decide the territorial jurisdiction of the Court. 9. Similar view was taken by the Division Bench of this Court in the decisions reported in 2009 (2) JKJ 643 [HC] Union of India and Ors. 9. Similar view was taken by the Division Bench of this Court in the decisions reported in 2009 (2) JKJ 643 [HC] Union of India and Ors. v. Sudesh Kumar and 2012 (3) JKJ 33 [HC], (Bopinder Singh v. Union of India and anr). 10. The decision relied upon by the learned counsel for the appellant reported in (2001) 9 SCC 525 (Dinesh Chandra Gahtori v. Chief of Army Staff and anr) was decided on facts and going through the judgment it is revealed that the petition was filed in the year 1992 and the same was dismissed in the year 1999 on the ground of lack of jurisdiction after keeping the matter pending for seven years. In such circumstances Hon'ble the Supreme Court thought fit to allow the appeal filed by the appellant. Here the facts are entirely different. The appellant was dismissed from service in the year 2000 and his representation seeking re-instatement was rejected on 25.06.2009 and the writ petition was filed in the year 2010 which was dismissed on 26.08.2014. In such circumstances, the judgment has no application. 11. In the light of the settled legal position and no cause of action having arisen within the territorial jurisdiction of this Court, we are unable to find any reason to interfere with the order of the learned Single Judge. In fine, the LP Appeal is dismissed. Connected CMP is also dismissed. No costs.