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Allahabad High Court · body

2017 DIGILAW 849 (ALL)

ARYA PRATINIDHI SABHA v. STATE OF U. P.

2017-03-24

SUNEET KUMAR

body2017
JUDGMENT Hon’ble Suneet Kumar, J.—Heard learned counsel for the parties. 2. First petitioner is a society registered under the Societies Registration Act, 1860, second petitioner is its elected President. Petitioner is aggrieved by the order dated 9th November, 2016 passed by third respondent, the Deputy Registrar, Firms, Societies and Chits, Lucknow (hereinafter referred to as ‘Deputy Registrar’), whereby, the second petitioner has been restrained from functioning as President of Arya Pratinidhi Sabha (Society), consequently fourth respondent was vested with the power of President. 3. Learned Senior Counsel appearing for the private-respondent, at the first instance, would raise a preliminary objection regarding the maintainability of the writ petition before this Court. It is sought to be urged that the cause of action primarily and exclusively has arisen within the territorial jurisdiction of Lucknow, therefore, would contend that the Court at Allahabad would lack jurisdiction. 4. Sri Anoop Trivedi, learned counsel appearing for the petitioner has not disputed that the Society is duly registered at Lucknow, but would submit that the Society has separate Units throughout the State and members, thereof, constitute the electoral college of the Society. Consequently, the second petitioner was inducted into the Committee of the Society being President of the Muzaffarnagar Unit of the Society. 5. It is further urged that complaints were made to the Deputy Registrar, though at Lucknow, from various district Units, including, Sonbhadra, Mirzapur and Firozabad, therefore, would contend that this Court would have jurisdiction as the complaints have arisen within the territorial jurisdiction of Allahabad. 6. Learned counsel appearing for the respondents, in rebuttal, would submit that the impugned order was passed at Lucknow; Society is registered at Lucknow, as well as, the complaints were instituted before the Deputy Registrar, at Lucknow. Pursuant to the complaints, Deputy Registrar initiated the proceedings vide notice dated 08 November, 2011, thereafter, the impugned order was passed. Earlier too, petitioner aggrieved by an order passed on 05 September 2012, arising form the same proceedings, was assailed before Lucknow Bench in Writ Misc. 5207 (MS) of 2012, (Arya Pratinidhi Sabha and another v. Registrar, Firms, Societies & Chits and others). The petition, however, was rendered infructuous as the order impugned, therein, was withdrawn by the Deputy Registrar. Thereafter, the proceedings culminated by passing of the order impugned in the present writ petition. 5207 (MS) of 2012, (Arya Pratinidhi Sabha and another v. Registrar, Firms, Societies & Chits and others). The petition, however, was rendered infructuous as the order impugned, therein, was withdrawn by the Deputy Registrar. Thereafter, the proceedings culminated by passing of the order impugned in the present writ petition. Further, it is urged that entire cause of action has arisen within the territorial jurisdiction of Lucknow and no part of the cause of action has arisen within the territorial jurisdiction of this Court. Mere filing of complaints from the Units of the Society, situated within the territorial jurisdiction of Allahabad would not constitute part of the cause of action. 7. In order to answer the preliminary issue as to whether the writ petition could in the facts of the case be filed at Allahabad, at the outset I will refer to the law settled by the Supreme Court in the case of Sri Nasiruddin v. State Transport Appellate Tribunal, 1975 (2) SCC 671 . The Chief Court of Oudh exercised jurisdiction over the territories within the 12 districts of Lucknow, Faizabad, Sultanpur, Rai Bareli, Pratapgarh, Barabanki, Gonda, Bahraich, Sitapur, Kheri, Hardoi and Unnao. The United Provinces High Courts (Amalgamation) Order, 1948 was passed so that the High Court at Allahabad and the Chief Court of Oudh may constitute one High Court. The sum and substance as well as the spirit of the Order is that under the first proviso to Clause 14 Lucknow becomes the seat in respect of cases arising in areas in Oudh. 8. The ratio of Nasiruddin (supra) still continues to hold the field and has once again been reiterated by the Apex Court in U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow v. State of U.P. and others, 1995 (4) SCC 738 . Relevant extract of the judgement reads as under: “This Court in Nasiruddin’s case speaking through A.N. Ray, CJ dealt with the relevant expression used in Clause 14 of the Amalgamation Order in the following words : The conclusion as well as the reasoning of the High Court is incorrect. Relevant extract of the judgement reads as under: “This Court in Nasiruddin’s case speaking through A.N. Ray, CJ dealt with the relevant expression used in Clause 14 of the Amalgamation Order in the following words : The conclusion as well as the reasoning of the High Court is incorrect. It is unsound because the expression “cause of action” in an application under Article 226 would be as the expression is understood and if the cause of action arose because of the appellate order or the revisional order which came to be passed at Lucknow then Lucknow would have jurisdiction though the original order was passed at a place outside the areas in Oudh. It may be that the original order was in favour of the person applying for a writ. In such case an adverse appellate order might be the cause of action. The expression “cause of action “ is well-known. If the cause of action arises wholly or in part at a place within the specified Oudh areas, the Lucknow Bench will have jurisdiction. If the cause of action arises wholly within the specified Oudh areas, it is indisputable that the Lucknow Bench would have exclusive jurisdiction in such a matter. If the cause of action arises in part within the specified areas in part within the specified areas in Oudh it would be open to the litigant who is the dominus litis to have his forum conveniens. The litigant has the right to go to a Court where part of his cause of action arises. In such cases, it is incorrect to say that the litigant chooses any particular Court. The choice is by reason of the jurisdiction of the Court being attracted by part of cause of action arising within the jurisdiction of the Court. Similarly, if the cause of action can be said to have arisen partly within specified areas in Oudh and partly outside the specified Oudh areas, the litigant will have the choice to institute proceedings either at Allahabad or Lucknow. The Court will find out in each case whether the jurisdiction of the Court is rightly attracted by the alleged cause of action. While reaching the above conclusion this Court kept in view the plain language of clause 14 of the Amalgamation Order. No provision of the Code of Civil Procedure was noticed, referred to or taken into consideration directly or indirectly. While reaching the above conclusion this Court kept in view the plain language of clause 14 of the Amalgamation Order. No provision of the Code of Civil Procedure was noticed, referred to or taken into consideration directly or indirectly. The territorial jurisdiction of a Court and the “cause of action” are interlinked. To decide the question of territorial jurisdiction it is necessary to find out the place where the “cause of action” arose. We, with respect, reiterate that the law laid down by a Four-Judge Bench of this Court in Nasiruddin’s case holds good even today despite the incorporation of an Explanation to Section 141 to the Code of Civil Procedure.” 9. The Supreme Court in Kusum Ingots and Alloys Ltd. v. Union of India and another, 2004 (6) SCC 254 , has considered as to what is the meaning of ‘cause of action’ and what is the purport of ‘territorial jurisdiction’. Relevant extract of the judgement reads as under: “Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writpetition, as the case may be, shall be rejected summarily. Keeping in view the expressions used is Clause (2) 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. This Court in Oil & Natural Gas Commission v. Utpal Kumar Basu and others ( 1994 (4) SCC 711 ) held that the question as to whether the Court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. 13. This Court in Oil & Natural Gas Commission v. Utpal Kumar Basu and others ( 1994 (4) SCC 711 ) held that the question as to whether the Court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. 13. This Court in Oil and Natural Gas Commission’s case (supra) held that all necessary facts must form an integral part of the cause of action. It was observed: “So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action...” The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court. 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. (See Bhagar Singh Bagga v. Dewan Jagbir Sawhany, AIR 1941 Cal; Mandal Jalan v. Madanlal, (1945) 49 CWN 357; Bharat Coking Coal Limited v. M/s Jharia Talkies & Cold Storage Pvt. Ltd., (1997) CWN 122; S.S.Jain & Co. and another v. Union of India and others, (1994) CHN 445; M/s. New Horizon Ltd. v. Union of India, AIR 1994 Delhi 126).” 10. The judgement received approval in the case of Alchemist Ltd. and another v. State Bank of Sikkim and others, 2007 (11) SCC 335 , wherein, as to what would constitute a part of cause of action within the meaning of Article 226 (2) of Constitution of Indian was considered. Relevant extract of the said judgement reads as under: “The legislative history of the constitutional provisions, therefore, make it clear that after 1963, cause of action is relevant and germane and a writ petition can be instituted in a High Court within the territorial jurisdiction of which cause of action in whole or in part arises. Relevant extract of the said judgement reads as under: “The legislative history of the constitutional provisions, therefore, make it clear that after 1963, cause of action is relevant and germane and a writ petition can be instituted in a High Court within the territorial jurisdiction of which cause of action in whole or in part arises. 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. 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 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 therefor.” 11. In Union of Inida v. Adani Exports Ltd., (2002) 1 SCC 567 , in the context of clause (2) of Article 226 of the Constitution, it has been explained that each and every fact pleaded in the writ petition 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 pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. 12. A similar question was examined in State of Rajasthan v. Swaika Properties, (1985) 3 SC 217, therein, certain properties belonging to a company which had its registered office in Calcutta were sought to be acquired in Jaipur and a notice under the Rajasthan Urban Improvement Act was served upon the company at Calcutta. 12. A similar question was examined in State of Rajasthan v. Swaika Properties, (1985) 3 SC 217, therein, certain properties belonging to a company which had its registered office in Calcutta were sought to be acquired in Jaipur and a notice under the Rajasthan Urban Improvement Act was served upon the company at Calcutta. The question which arose for consideration was whether the service of notice at the head office of the company at Calcutta could give rise to a cause of action within the State of West Bengal to enable the Calcutta High Court to exercise jurisdiction in a matter where challenge to acquisition proceedings conducted in Jaipur was made. It was held that the entire cause of action culminating in acquisition of the land under Section 152 of the Rajasthan Act arose within the territorial jurisdiction of the Rajasthan High Court and it was not necessary for the company to plead the service of notice upon them at Calcutta for grant of appropriate writ, order or direction under Article 226 of the Constitution for quashing the notice issued by the Rajasthan Government. It was thus held that the Calcutta High Court had no jurisdiction to entertain the writ petition. 13. In Nawal Kishore Sharma v. Union of India and others, (2014) 9 SCC 329 , the Supreme Court revisited law and held that in order to maintain a writ petition, the petitioner has to establish that his legal right has been infringed by the respondents within territorial limit of High Court’s jurisdiction. In the facts before the Court, the appellant, therein, reported sickness on account of various ailments. Consequently, he was signed off for further medical treatment. Finally, he was permanently declared unfit for sea service due to heart muscle disease. As a result, the Shipping Department of Government of India passed an order cancelling the registration of the appellant as a seaman as consultant. The cancellation order was sent to the appellant at his native place in Bihar where he was staying after he was found medially unfit. Further, the appellant sent a representation from his own home in Bihar to the respondent claiming disability compensation, which was replied to by the respondent, and addressed to the appellant on his home address in Gaya, Bihar rejecting his claim for disability compensation. Further, the appellant sent a representation from his own home in Bihar to the respondent claiming disability compensation, which was replied to by the respondent, and addressed to the appellant on his home address in Gaya, Bihar rejecting his claim for disability compensation. It was pleaded that all claims and the representations were filed by the appellant, after he returned back to home, from his home address in Gaya, the representations were entertained by the respondent and replied and the decisions on those representations were communicated to him and addressed on his home address in Bihar. The Court, in the circumstances, held that- “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.” 14. The order of the Patna High Court rejecting to entertain the petition due to lack of jurisdiction was set aside also for the reason that the plea of lack of territorial jurisdiction was not raised in the first instance but at a later stage. 15. Reliance was placed by the respondents on a Full Bench decision rendered in Paritosh Kumar and others v. Union of India and others, 2013(9) ADJ 1 (FB), to contend that since the complaints were filed from districts falling within the jurisdiction of this Court, therefore, it is urged that a part cause of action has arisen within the territorial jurisdiction of Allahabad. The Full Bench opined that the law enunciated by the earlier Division Benches of this Court, holding that for deciding the territorial jurisdiction, it is the location of the Court which has passed the impugned order or where the proceedings are pending, which shall be the determinative factor is totally against the provisions and object of the Clause 14 of the Amalgamation Order, 1948 and the judgment rendered in Nasiruddin’s case (supra). The Court, therefore, was of the opinion that it would be a misnomer to hold that the Lucknow Bench of this Court alone will have jurisdiction to entertain a petition under Section 482 Cr.P.C. or Criminal Revision or Appeal filed against the judgment and order of conviction or acquittal passed by the Special Court, CBI constituted at Lucknow irrespective of the place of origin of the case, i.e. where the offence was committed. While interpreting the phrase “cases arising in such areas in Oudh”, reliance was placed on Nasiruddin’s case to rule that the question whether the Lucknow Bench or the principal seat at Allahabad would have jurisdiction, would depend upon the “cause of action” of the matter before the Court and in so far as the criminal matter are concerned, it would depend on the place where the offence was committed or as otherwise provided in the Cr.P.C.. In so far as the Cr.P.C. is concerned, the territorial jurisdiction of the Courts is provided for in Chapter XIII. Section 177 of the Cr.P.C. which provides that the offence is ordinarily to be tried within the local jurisdiction of the Court where offence is committed. Therefore, in the facts of the case, since the offence was committed within the jurisdiction of Allahabad, the Allahabad Court could hear the appeal. 16. In Rajendra Kumar Mishra v. Union of India and others, 2004(4) ESC 2313 (All)(FB), the Full Bench of this Court noted that the misconduct by the petitioner, an Army Personnel, was committed at Calcutta and Summary Court Martial was also held at Calcutta. Thus, the entire cause of action arose at Calcutta. Further, the Court held that a writ petition cannot be entertained at Allahabad, where no part of the cause of action had arisen. 17. On the parameters settled by the Apex Court, it has to be seen in the facts of the present case as to whether part of cause of action has arisen within the territorial domain of this Court, I find there is nothing on record to suggest that any cause of action or part of cause of action has arisen within the territorial domain of this Court. 18. Mere filing of complaints by the members of the Society situated within the territorial jurisdiction of this Court would not give rise to a cause of action. The petitioner need not plead from where the complaint enumerated. The complaint, as such, does not give rise to a cause of action. The notice issued, thereof, may give rise to a cause of action provided it is without jurisdiction or could not have been issued under the Act. This is not the case in the facts of the present case. The petitioner is aggrieved by the impugned order. The complaint, as such, does not give rise to a cause of action. The notice issued, thereof, may give rise to a cause of action provided it is without jurisdiction or could not have been issued under the Act. This is not the case in the facts of the present case. The petitioner is aggrieved by the impugned order. The Society, admittedly, is registered at Lucknow, notice initiating the proceedings emanated from Lucknow, and the parties entered appearance and participated at Lucknow. Merely complainants are residing, or the Units of the Society being outside the Oudh region would certainly not give rise to a part of cause of action so as to maintain the petition at Allahabad. This is not a fact which the petitioner needs to plead and prove to obtain the relief claimed in the writ petition. 19. The petition is, accordingly, dismissed as withdrawn with liberty to the petitioners to approach the Lucknow Bench of this Court.