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2017 DIGILAW 619 (JK)

Jaswant Singh v. U. O. I.

2017-08-11

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

body2017
D.S. THAKUR, J. 1. This Letters Patent Appeal has been preferred against the judgment and order dated 01.03.2017 passed in SWP No.1932/2013, whereby the writ petition filed by the appellant has been dismissed on the ground of lack of jurisdiction. 2. Briefly stated the material facts are as under: 3. On 15.02.2000, the appellant herein during the course of patrolling in District Manipur fired a bullet from his 9MM carbine, which hit one Constable Girish Chand, who as a consequence suffered grievous injuries. A Court of enquiry was held, which according to the appellant concluded that the firing of gun shots from the weapon of the appellant was not intentional but accidental. 4. In the year 2003, after a lapse of more than three years, the Commandant, 64th Bb. at Dholchera, District Assem sought trial of the appellant by General Security Force Court on the same allegations. The General Security Force Court was convened, which charged the appellant and vide order dated 09.02.2004 sentenced him with the following punishments: (a) To take rank and precedence as if his rank and appointment as Sub-Inspector bore the date 2nd November, 2001 and not 2nd November, 1998. (b) To forfeit three years past service for the purpose of pension. (c) To be severely reprimanded. 5. The Inspector General, Border Security Force, Tripura then vide his order dated 24.04.2004 appears to have confirmed the order passed by the General Security Force Court. A post-confirmation petition under section 117 of the BSF Act was also filed by the appellant before the Director General, Border Security Force, New Delhi. 6. The appellant claims that a representation dated 10.02.2005 was also filed by him against rejection of the post-confirmation petition under Section 117 of the BSF Act, to which according to the appellant there was no response. 7. A mercy petition then appears to have been filed by the appellant on 17.07.2008, addressed to Director General, Border Security Force seeking review of the earlier order passed upon confirmation. This mercy petition is claimed to have been submitted by the appellant in the State of Jammu & Kashmir and according to the appellant was received in the State. 8. A mercy petition then appears to have been filed by the appellant on 17.07.2008, addressed to Director General, Border Security Force seeking review of the earlier order passed upon confirmation. This mercy petition is claimed to have been submitted by the appellant in the State of Jammu & Kashmir and according to the appellant was received in the State. 8. The entire sequence of events appeared to have occurred outside the state of Jammu & Kashmir except the factum of filing of the mercy petition and a representation from the State of Jammu & Kashmir, which fact too has been denied by the respondents in their counter affidavit before the writ Court. As contained in paragraph 15 to the effect that no such mercy petition had been received by them. 9. The writ Court by virtue of order dated 01.03.2017 proceeded to dismiss the petition on the ground that no cause of action or part thereof had arisen within the territorial jurisdiction of the Court. It is in those circumstances that the present Letters Patent Appeal has been filed on the ground that a part of cause of action had infact accrued within the State of Jammu & Kashmir, inasmuch as, a representation and a mercy petition had been filed by the appellant in Jammu, which had been duly received in the office of the respondents. 10. Reliance was also placed upon “Nawal Kishore Sharma V/s Union of India & ors” 2014 AIR (SC) 3607 to bring home the point that the part of the cause of action can be said to accrue to a person from the place where he initiates or submits representation or receives the order of rejection. 11. Heard learned counsel for the parties. 12. The short question that falls for our consideration is whether in the facts and circumstances of the present case mere filing of of a mercy petition from within the territorial jurisdiction of this court seeking review of the rejection of the post-confirmation petition would confer jurisdiction on this Court under Article 226. 13. Heard learned counsel for the parties. 12. The short question that falls for our consideration is whether in the facts and circumstances of the present case mere filing of of a mercy petition from within the territorial jurisdiction of this court seeking review of the rejection of the post-confirmation petition would confer jurisdiction on this Court under Article 226. 13. After the amendment of the Article 226 by the Constitution (15th) Amendment Act, 1963, whereby Clause 1(A) was inserted in Article 226 and subsequently renumbered as Clause (2) by the Constitution (42nd) Amendment Act, 1976, the powers exercisable by the High Court to issue writs may be exercised by any High Court exercising jurisdiction in relation to the territories within which cause of action wholly or in part arises, notwithstanding that the seat of such Government or authority or the residence of such person was not within those territories. 14. The amendment to the Constitution was necessitated in view of the pronouncement Constitution Bench of 07 Judges of the Apex Court in case titled “Lt. Col. Khajoor Singh V/s Union of India and another” AIR 1961 SC 532 , wherein it was held that unless there were clear and compelling reasons, which cannot be denied, the writ Court cannot exercise under Article 226 of the Constitution beyond its territorial jurisdiction. 15. As to what is meant by the expression “cause of action” came up before the Apex Court in case titled “State of Rajasthan & ors Vs. M/s Swaika Properties and Another” (1985) 3 SCC 217 , wherein it was held as under:- “8. The expression cause of action is tersely defined in Mullas Code of Civil Procedure: “The 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. The mere service of notice under Section 52(2) of the Act on the respondents at their registered office 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 Article 226(2) of the Constitution must depend upon the nature of the 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 Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution, the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench, where the cause of action wholly or in part arose.” 16. In “Oil and Natural Gas Commission V/s Utpal Kumar Basu & ors.” (1994)4 SCC 711 , the Apex Court held as under:- “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. 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.” 17. In “Nawal Kishore Sharma V/s Union of India & ors” 2014 AIR (SC) 3607, after tracing the various pronouncements of the Apex Court on the issue at hand, it was held that:- “19. Regard being had to the discussion made hereinabove, there cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Courts jurisdiction.” 18. The facts in the case before the Court in Nawal Kishore Sharma’s case were that the appellant before the court reported sick on account of various ailments and was subsequently declared unfit for sea service and an order was issued by the Shipping Department of the Government of India cancelling his registration as a Sea-man. A copy of the letter was sent to him at his native place in Bihar, where he was staying, after he had been found medically unfit. 19. Representation was filed by the said appellant from his home State Bihar claiming disability compensation, which request was rejected and the same communicated at his home address in Gaya. The court noticed that the appellant had made all claims and representations from his home address at Gaya, which was entertained by the respondents-State and subsequently rejection communicated at his home address in Bihar. The court noticed that the appellant had made all claims and representations from his home address at Gaya, which was entertained by the respondents-State and subsequently rejection communicated at his home address in Bihar. It was in those circumstances that the Court after considering all facts held that 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. 20. Overwhelming reliance was placed upon Nawal Kishore Sharma’s case by the counsel for the appellant to urge that by filing a mercy petition from within the territorial jurisdiction of this Court, a part of cause of action had accrued to the appellant. In our opinion, the argument cannot be accepted. 21. In the present case, the entire chain of events from the point of occurrence of the incident, the conduct of enquiry, the holding of the General Security Force Court proceedings, the passing of the sentence by the General Security Force Court as also the post-confirmation petition and rejection thereof, all happened beyond the territorial jurisdiction of this Court. 22. An isolated action of filing a representation or request seeking mercy filed from within the territorial jurisdiction of this Court does not constitute an integral part of the bundle of facts necessary to constitute a cause of action. Filing of the mercy petition or representation cannot thus be said to be an integral part of the cause of action, which could entitle the appellant to invoke this Court’s jurisdiction. 23. In any case, the issue as to whether the appellant had at all submitted his mercy petition also is disputed by the respondents, who have denied having received any such mercy petition, which even otherwise appears to be a non-statutory remedy. 24. In our opinion, the view taken by the writ Court that it lacks territorial jurisdiction is a view, which legally is correct and deserves no interference. The instant appeal is found to be without any merit and is accordingly, dismissed along with connected MP.