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2016 DIGILAW 332 (MP)

Pushpa Bai v. Board of Revenue, M. P. , Gwalior

2016-04-25

ROHIT ARYA

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ORDER 1. The issue related to territorial jurisdiction of High Court and/or Benches thereof exercising power under Article 226 of the Constitution of India, i.e. the territories within which the cause of action, wholly or in part, arises, as involved in this case, is considered to be of public importance. The incidental question related to concept of forum conveniens or forum non-conveniens also is of significant importance connected with the aforesaid issue. This Court proposes to answer both issues in the factual backdrop of the case in hand. 2. Relevant facts are to the effect that the land admeasuring 12182.6 sqft., Plot No.691/2, sheet No.155-D falling in Subhash Nagar (Subhadra Kumari Chauhan Ward) Jabalpur (hereinafter referred to as “the land in question”) was of the ownership and in possession of one Ramesh Singh Thakur-respondent No.2. The competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the Act of 1976”) in Case No.1045/Aa-90-Ba-9/76-77 vide its order dated 24.5.1988 declared the land in question as surplus land and accordingly corresponding changes were made in the land records. During pendency of ceiling proceedings and after declaration of the land as surplus land respondent No.2 had disposed of the land by four different sale deeds viz. dated 2.8.1988 in favour of petitioner No.2, dated 2.8.1988 in favour of Late Gulabchand Jain-husband of petitioner No.1 and father of petitioners No.2 to 4, dated 3.3.1988 in favour of petitioner No.3 and dated 31.3.1988 in favour of petitioner No.4. Petitioners claim that the parcels of land, so transferred, were duly recorded in the land records on 2.11.1991. Being aggrieved by the order dated 24.5.1988 passed by the competent authority (supra), one Smt. Veerabai, Sardar Sulochan Singh and Smt. Ravindra Kaur preferred an appeal before the Additional Commissioner, Jabalpur vide Appeal No.228/Aa-90(Ba-9)/93-94. The appellate authority vide its order dated 15.5.1996 set aside the order dated 25.4.1988 and remanded the case back to the competent authority for spot inspection of the land in question and thereafter with due opportunity to the affected parties, passed necessary orders. Likewise, one Kanhaiyalal Chaurasiya filed Writ Petition No.5079/1996 and Buddhalal, Kujilal, Gulabchand and Lallaprasad filed Writ Petition No.2691/1994 at the Principal Seat of the High Court of Madhya Pradesh at Jabalpur challenging the order dated 24.5.1988. Likewise, one Kanhaiyalal Chaurasiya filed Writ Petition No.5079/1996 and Buddhalal, Kujilal, Gulabchand and Lallaprasad filed Writ Petition No.2691/1994 at the Principal Seat of the High Court of Madhya Pradesh at Jabalpur challenging the order dated 24.5.1988. The Writ Petition was also disposed of in the light of the order passed by the Commissioner, Jabalpur dated 15.5.1996 (supra), with similar directions. During this period the Act of 1976 was repealed and consequently the ceiling proceedings stood lapsed. Thereafter, respondent No.3-Sobha Agrawal filed an application before the Tahsildar, Nazul, Jabalpur under sections 115 and 116 of the M.P. Land Revenue Code for recording of her name in the revenue records. The Tahsildar, Nazul, Jabalpur vide his order dated 3.7.2001 in case No.20-Aa-6(Aa)-2000-2001 ordered for mutation of the name of respondent No.3 in the revenue records of the land admeasuring 12182.6 sqft. falling in plot No.691/2, Subhash Nagar (Subhadra Kumari Chauhan Ward), Jabalpur. Thereafter, respondent No.3 out of the aforesaid land in question transferred 3362.6 sqft. land in favour of petitioners by registered sale deed dated 9.7.2001. The names of petitioners were accordingly mutated in the revenue records to the extent of aforesaid area of land by orders of the Superintendent Land Records, Jabalpur dated 28.7.2001. Petitioners challenged the order of the Tahsildar, Jabalpur dated 3.7.2001 as well as that of the SLR, Jabalpur dated 28.7.2001 by way of appeal before the SDO (Urban), Jabalpur. The appeal was allowed vide order dated 16.5.2005 setting aside the order dated 3.7.2001 with further direction to correct the land records in favour of petitioners in respect of the land admeasuring 2236 sqft., i.e. total area of four sale deeds executed by respondent No.3 in favour of petitioners in the year 1988, detailed above. Being aggrieved by the aforesaid order, appeal was preferred before the Commissioner (Appeals), Jabalpur by respondent No.2. The order dated 16.5.2005 was set aside and the order passed by the Tahsildar, Jabalpur on 3.7.2001 and that of the SLR, Jabalpur dated 28.7.2001 was restored by appellate order dated 25.4.2006. Being aggrieved by the aforesaid order, petitioners challenged the same before the Board of Revenue invoking revisional jurisdiction under section 50 of the M.P. Land Revenue Code. The order dated 16.5.2005 was set aside and the order passed by the Tahsildar, Jabalpur on 3.7.2001 and that of the SLR, Jabalpur dated 28.7.2001 was restored by appellate order dated 25.4.2006. Being aggrieved by the aforesaid order, petitioners challenged the same before the Board of Revenue invoking revisional jurisdiction under section 50 of the M.P. Land Revenue Code. The Board of Revenue has dismissed the revision petition on the premise that the subject matter of dispute since related to land in urban agglomeration and subject matter of proceedings before the Nazul Officer, Jabalpur, SDO (Urban) Jabalpur and Commissioner, Jabalpur Division, Jabalpur, therefore, the revisional jurisdiction was not available to the Board of Revenue under section 50 of the M.P. Land Revenue Code and closed the case, however, liberty was granted to the applicant to approach the competent authority, i.e. the Secretary, Revenue Department, State of M.P. 3. Challenging the legality, validity and propriety of the order passed by the Board of Revenue the instant writ petition has been filed in this Court, i.e. Gwalior Bench of High of M.P. The present State of Madhya Pradesh was constituted under section 9 of the State Reorganization Act, 1956, w.e.f. the appointed day i.e.1.11.1956. The Presidential Order dated 28-11-1968 reads as follows :- “In exercise of the powers conferred by sub-section (2) of S.51 of the States Reorganization Act, 1956 (37 of 1956), I, Zakir Husain, President of India, after consultation with the Governor of Madhya Pradesh and the Chief Justice of the High Court of Madhya Pradesh, hereby establish a permanent Bench of the Madhya Pradesh High Court at Gwalior and further direct that such Judges of the High Court of Madhya Pradesh, being not less than two in number, as the Chief Justice may from time to time nominate, shall sit at Gwalior in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the revenue districts of Gwalior, Shivpuri, Datia, Guna, Vidihsa (Bhilsa), Bhind and Morena:” (Emphasis supplied) The expression “in respect of cases arising in the revenue districts of Gwalior, Shivpuri, Datia, Guna, Vidisha, Bhind and Morena means the place or places within the specified revenue districts where the whole or part of cause of action arises”. If the cause of action arises wholly or in part at a place or places within the specified revenue districts, the Gwalior Bench of the High Court of M.P. will have the jurisdiction. Further, in exercise of powers under Article 225 of the Constitution of India, section 54 of the State Reorganization Act, 1956, Clause 27 and 28 of the Letters Patent and section 3 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, the High Court of M.P. has made rules regulating practice and procedure of the High Court known as Madhya Pradesh High Court Rules and Orders (hereinafter referred to as “the High Court Rules”). Chapter III of the High Court Rules deal with territorial jurisdiction of the Principal Seat and the Benches and rule 4 thereof provides as under :- “4. Where a Bench, in the Principal Seat at Jabalpur or the Benches at Indore or Gwalior, on an objection taken by the registry or otherwise, is of the opinion that a main case posted before it, had arisen from a revenue district falling within the territorial jurisdiction of some other Bench or the Principal Seat, it may record its opinion and return the main case for its presentation at proper place for orders, after retaining one complete set of the main case.” Therefore, if a Bench either sitting at the Principal Seat at Jabalpur or Bench at Indore or Gwalior is of the opinion that the main case had arisen from the revenue district falling within the territorial jurisdiction of some other Bench or the Principal Seat, as the case may be, it may record its opinion and return the main case for presentation at proper place for orders etc. Factual matrix of the case in hand suggests that the main case originated from the orders of the Tahsildar, Nazul, Jabalpur dated 3.7.2001 and that of the SLR, Jabalpur dated 28.7.2001 in exercise of powers under sections 115 and 116 of the M.P. Land Revenue Code travelled through appellate proceedings before the SDO (Urban) Jabalpur and Commissioner (Appeals), Jabalpur though culminated into rejection of revisional proceedings by the Board of Revenue at Gwalior. Therefore, in view of rule 4 of the High Court Rules jurisdiction of the bench sitting at Principal Bench of the High Court of M.P. at Jabalpur shall have jurisdiction to entertain writ petition. Therefore, in view of rule 4 of the High Court Rules jurisdiction of the bench sitting at Principal Bench of the High Court of M.P. at Jabalpur shall have jurisdiction to entertain writ petition. However, in the light of Article 226(2) of the Constitution of India, which provides that the High Court shall exercise the jurisdiction under Article 226(1) in relation to the territories within which the cause of action, wholly or in part, arises, learned counsel for the petitioners contends that as the revisional order is passed by the Board of Revenue at Gwalior, therefore, part of cause of action has arisen at Gwalior and, therefore, the Gwalior Bench of the High Court of M.P. shall have jurisdiction to entertain the writ jurisdiction under Article 226(1) of the Constitution of India and rule 4 of the High Court Rules shall give way to the mandate contained under Article 226 (2) of the Constitution of India. 4. The crux of the controversy, therefore, revolves around the concept, meaning and dimensions of words “cause of action, wholly or in part”. Effect of rule 4 of the High Court Rules shall be considered a little later. The expression “cause of action” has not been defined either in the Constitution of India or in the Code of Civil Procedure. The cause of action is often described as a bundle of essential facts necessary for plaintiff to prove if disputed or traversed by defendant to succeed in the suit. Failure to prove such facts shall entitle the defendant a right to judgment in his favour, therefore, cause of action gives occasion for and forms the foundation of the suit. The comprehensive definition of expression “cause of action” by Lord Brett in the case of Cooke v. Gill, (1873) 8 CP 107 is that “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. In the case of Chand Kour v. Partab Singh, ILR (1889) 16 Cal. 98, 102 Lord Watson explained the concept of cause action, which reads as under :- "...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. 98, 102 Lord Watson explained the concept of cause action, which reads as under :- "...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 grounds 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." In the case of A.B.C. Laminart (P) Ltd. v. A.P. Agencies, (1989)2 SCC 163 , the Hon'ble Supreme Court has made the following observations :- “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. 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.” In catena of decisions of the Supreme Court scope of territorial jurisdiction of the High Court in its writ jurisdiction under Article 226 of the Constitution of India Pre and Post Constitution (Fifteenth Amendment Act) 1963 and Constitution (Fourty-second Amendment Act) 1976 when Article 226 (2) was incorporated in the Constitution renumbering clause (1-A) of Article 226 (1-A) incorporated by Constitution (Fifteenth Amendment Act) 1963, which reads as under :- “226. (1-A) 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.” Ranging from Election Commission v. Saka Venkata Rao [ AIR 1953 SC 210 ], Lt. Col. Khajoor Singh v. Union of India [ AIR 1961 SC 532 ], A.B.C. Laminart (P) Ltd. v. A.P. Agencies [ (1989)2 SCC 163 ], Union of India v. Oswal Woolen Mills Ltd. [(1984) SC 646], State of Rajasthan v. Swaika Properties [ (1985)3 SCC 217 ], ONGC v. Utpal Kumar Basu [ (1994)4 SCC 711 ], CBI, Anti-Corruption Branch v. Narayan Diwakar, [ (1999)4 SCC 656 ], Union of India v. Adani Exports Ltd. [ (2002)1 SCC 567 ], and Kusum Ingots and Alloys Ltd. v. Union of India [ (2004)6 SCC 254 ], has been dealt with exhaustively and, therefore, this Court does not intend to burden the judgment reiterating enunciation of laws in various judgments. There is a detailed review of all such judgments by the Hon'ble Supreme Court in the case of Alchemist Ltd. And another v. State Bank of Sikkim and others [ (2007)11 SCC 335 ], wherein upon critical evaluation of ratio of various judgments the Hon'ble Supreme Court lucidly laid down the following principle of law in the context of meaning of words “part of cause of action”, which reads as under :- “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. 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 than.” (Emphasis supplied) Therefore, while addressing on the question whether a High Court has territorial jurisdiction to entertain the writ petition, the Court is required to carefully peruse the averments made in the petition irrespective of the fact, truth or otherwise thereof. In other words the Court must take into consideration all facts pleaded in the context of cause of action. Now on the bedrock of aforesaid enunciation of law if the factual matrix of the case in hand is examined, it is clear as noon day that the genesis of the cause of action had arisen when the Tahsildar, Jabalpur vide order dated 3.7.2001 and SLR, Jabalpur vide order dated 28.7.2001 had ordered for mutation of the land admeasuring 12182.6 sqft. falling in plot No.691/2, Subhash Nagar (Subhadra Kumari Chauhan Ward), Jabalpur followed by orders of the SDO (Urban) Jabalpur and that of the Commissioner (Appeals), Jabalpur Division, Jabalpur, hence, all aforesaid facts are material, essential and in fact are integral part of the cause of action questioning the action of the Tahsildar, Jabalpur and SLR, Jabalpur. Therefore, the main case arises within the revenue district of Jabalpur falling in territorial jurisdiction of Bench sitting at Principal Seat. Rejection of revision by the Board of Revenue under section 50 of the M.P. Land Revenue Code as not maintainable by no stretch of imagination can be construed to be a fact being material or integral part of the cause of action for the purpose of maintainability of the writ petition under Article 226 of the Constitution of India at the Bench at Gwalior of the High of M.P. Moreover, the concept of forum conveniens or forum non-conveniens also assumes importance in the midst of the controversy involved and, therefore, the same is also required to be dealt with. The Black's Law Dictionary defines forum conveniens as follows :- “The Court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses.” Therefore, the Court is obliged to ensure convenience of all the parties before it, expenses involved, requirement of verification of facts, requisitioning of records, factors necessary for just adjudication of the controversy and the Court while striking balance of convenience may decline to exercise jurisdiction though part of cause of action had arisen within the territorial jurisdiction of that Court. The Hon'ble Supreme Court in the case of Kusum Ingots (supra), while critically evaluating the concept of cause of action has reiterated meaning and dimensions of forum nonconveniens and observed that in a given facts situation the Court is entitled to decline to exercise jurisdiction under Article 226 of the Constitution of India on the principle of forum conveniens or forum non-conveniens. Relevant para 30 thereof reads as under :- “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”. Therefore, in the light of the provisions under rule 4 of the High Court Rules based on the concept of forum conveniens also, in the considered opinion of this Court, the writ petition at Gwalior Bench of the High Court of M.P. is not maintainable. In view of the concept, meaning and dimensions of cause of action or part of cause of action, as propounded in catena of Supreme Court judgments reviewed in the case of Alchemist (supra), and provisions contained in rule 4 of the High Court Rules, the judgments cited by learned counsel for the petitioner viz. In view of the concept, meaning and dimensions of cause of action or part of cause of action, as propounded in catena of Supreme Court judgments reviewed in the case of Alchemist (supra), and provisions contained in rule 4 of the High Court Rules, the judgments cited by learned counsel for the petitioner viz. K.P. Govil v. Jawaharlal Nehru Krishi Vishwa Vidyalya, Jabalpur and another [ 1987 JLJ 341 ], Rajendran Chingaravelu v. R.K. Mishra, Additional Commissioner of Income Tax and others [ (2010)1 SCC 457 ], Gajendra Singh Arya and another v. State of M.P. and others [2000(2) Vidhi Bhasvar 145= 2000(2) MPLJ 50 ], G.S. Gyani and Company, Bhopal v. Oriental Electric and Engineering Co., Calcutta and another [ 2006(2) MPLJ 530 ], Dashrath Rupsingh Rathod v. State of Maharashtra and another [ (2014)9 SCC 129 ], M.P. Co-operative Marketing Federation, Bhopal v. Bhojraj Ghanshyamdas and another [1991 RN 2], are distinguishable on facts and of no assistance to the petitioner. In no way, these decisions are in conflict with law laid down in the case of Alchemist (supra). Accordingly, the writ petition is dismissed as not maintainable. However, petitioner is set at liberty to file appropriate writ petition or any other proceedings falling within the territorial jurisdiction of the High Court of M.P. at Principal Seat Jabalpur.