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2018 DIGILAW 777 (ALL)

ARMOR SHIV KUMAR SINGH v. UNION OF INDIA

2018-04-02

DILIP GUPTA, NEERAJ TIWARI

body2018
JUDGMENT & ORDER : 1. This Special Appeal arises out of the judgment and order dated 6 March 2018 of a learned Judge of this Court by which Writ-A No.7243 of 2018 filed by the appellant for quashing the communication dated 29 July 2017 sent by the Subsidiary Training Centre, Border Security Force, Bangalore (STC BSF Bangalore) to FHQ, BSF, AdmDte (GR Cell), HQ, DG BSF, New Delhi rejecting the plea for granting compassionate allowance, has been dismissed. 2. It transpires that the appellant was enrolled in the Border Security Force and while posted at STC, BSF, Bangalore he was sent to attend a Familiarization Cadre on Optical Instruments conducted in Gwalior from 9 September 1996 to 21 September 1996. He was sanctioned 15 days leave but he did not return within the stipulated time. A show cause notice dated 17 April 1996 was, accordingly, thereafter issued to the appellant by the officer at Bangalore and ultimately his services were terminated by order dated 26 November 1997. The petitioner represented to the Director General for reinstating him which was also rejected by order dated 23 February 1999. The appellant filed a writ petition in 2009 to challenge the order. This petition was dismissed on the ground of laches and the Special Appeal filed by the appellant was also dismissed. Thereafter the appellant submitted an application dated 13 February 2017 before the STC BSF, Bangalore for grant of compassionate allowance. The FHQ, BSF at New Delhi sent a communication dated 23 February 2017 to the STC, BSF at Bangalore to examine his claim and it was also stated in the above letter that if STC BSF, Bangalore is not agreeable to the aforesaid suggestion, the case of the appellant for granting compassionate allowance be forwarded to the FHQ, BSF at New Delhi through proper channel. The Inspector General, STC, BSF at Bangalore has by communication dated 29 July 2017 rejected the claim of the appellant for grant of compassionate allowance and has informed the FHQ, BSF at New Delhi about this fact. It is this communication sent by the Inspector General, STC, BSF, Bangalore to the FHQ, BSF, New Delhi that was impugned in the writ petition out of which the Special Appeal arises. The learned Judge dismissed the petition for the reason that no cause of action arose within the territorial jurisdiction of this Court. 3. It is this communication sent by the Inspector General, STC, BSF, Bangalore to the FHQ, BSF, New Delhi that was impugned in the writ petition out of which the Special Appeal arises. The learned Judge dismissed the petition for the reason that no cause of action arose within the territorial jurisdiction of this Court. 3. Learned counsel for the appellant has submitted that since the appellant is now residing at Ballia, he had made a claim for grant of compassionate allowance as part of cause of action had arisen within the territorial jurisdiction of this Court and, therefore, the writ petition should not have been dismissed on the ground of lack of territorial jurisdiction and in support of this submission, he placed reliance upon the decision of the Supreme Court in Nawal Kishore Sharma Vs. Union of India & Ors., (2014) AIR SC 3607. 4. Sri Purnendu Kumar Singh, learned counsel for the respondents has, however, contended that the learned Judge was justified in dismissing the writ petition on the ground of lack of territorial jurisdiction since neither cause of action nor part of cause of action had arisen within the territorial jurisdiction of this Court. 5. We have considered the submissions advanced by learned counsel for the parties. 6. It is not in dispute that the services of the appellant were terminated by an order passed by STC, BSF at Bangalore. It is also not in dispute that the communication that was impugned in the writ petition was sent by the Inspector General, STC, BSF, Bangalore to FHQ, BSF, New Delhi pursuant to the communication dated 23 February 2017 sent by the FHQ, BSF, New Delhi to STC, BSF, Bangalore. In such circumstances merely because the appellant claims to be residing in the State of Uttar Pradesh, he cannot be permitted to contend that even part of cause of action had arisen within the territorial jurisdiction of this Court. 7. In Nawal Kishore Sharma the impugned communication was sent to the petitioner at Gaya in the State of Bihar and, therefore, the Supreme Court observed that part of cause of action may have arisen within the territorial jurisdiction of the State of Bihar. 7. In Nawal Kishore Sharma the impugned communication was sent to the petitioner at Gaya in the State of Bihar and, therefore, the Supreme Court observed that part of cause of action may have arisen within the territorial jurisdiction of the State of Bihar. It also needs to be noted that the writ petition filed by Nawal Kishore Sharma in the State of Bihar had been entertained and an interim order had been granted but it was at the stage of final hearing that the writ petition was dismissed. 8. A Full Bench of this Court in Rajendra Kumar Mishra Vs. Union of India & Ors., (2005) 1 UPLBEC 108 held that since misconduct was committed at Calcutta and Summary Court Martial was also held at Calcutta, the entire cause of action arose at Calcutta and, therefore, the Allahabad High Court will have no jurisdiction and the observations are as follows:- "12. In the present case it may be noted that the misconduct was committed at Calcutta and Summary Court Martial was also held at Calcutta. Thus the entire cause of action arose at Calcutta. We, therefore, fail to understand how a writ petition can be entertained at Allahabad High Court where no part of the cause of action had arisen. 13. In our opinion merely because the petitioner is presently residing at Ballia this will not give jurisdiction to this Court in view of the Seven Judges Bench decision of the Supreme Court in Lt. Col. Khajoor Singh v. Union of India, (1961) AIR SC 532. In paragraph 13 of the aforesaid decision the Supreme Court observed :- "Now it is clear that the jurisdiction conferred on the High Court by Article 226 does not depend upon the residence or location of the person applying to it for relief; it depends only on the person or authority against whom a writ is sought being within those territories. It seems to us, therefore, that it is not permissible to read in Article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction. Thus if a person residing or located in Bombay, for example, is aggrieved by an order passed by an authority located, say, in Calcutta, the forum in which he has to seek relief is not the Mumbai High Court though the order may affect him in Bombay but the Calcutta High Court where the authority passing the order is located. It would, therefore, in our opinion be wrong to introduce in Article 226 the concept of the place where the order passed has effect in order to determine the jurisdiction of the High Court which can give relief under Article 226" ............... 41. We may mention that a "cause of action" is the bundle of facts which, taken with the law applicable, gives the plaintiff a right to relief against the defendant. However, it must include some act done by the defendant, since in the absence of an act, no cause of action can possibly occur [Vide Radhakrishnamurthy vs. Chandrasekhara Rao, IAR 1966 AP 334; Ram Awalamb v. Jata Shankar, (1969) AIR Allahabad 526 (FB), and Salik Ram Adya Prasad v. Ram Lakhan and others, (1973) AIR Allahabad 107] 42. In the present case no part of the cause of action has arisen in U.P. Hence in our opinion the writ petition is not maintainable in this Court. It is accordingly dismissed. The decision of the Division Bench in Kailash Nath Tiwari v. Union of India (Special Appeal No.997 of 1995, decided on 9.1.2002) in our opinion does not lay down the correct law and is overruled." 9. A Division Bench of this Court in M/s Deeptiman Logistics Pvt. Ltd. & Anr. Vs. Union of India & Ors., (2010) 4 ADJ 148 has also examined this issue. In this case, the Government of India, Railway Board issued a Scheme, namely, Wagon Investment Scheme on 20th November, 2005 and the said Circular was sent to different Railway Zones including the South East Central Railway, Bilaspur. Vs. Union of India & Ors., (2010) 4 ADJ 148 has also examined this issue. In this case, the Government of India, Railway Board issued a Scheme, namely, Wagon Investment Scheme on 20th November, 2005 and the said Circular was sent to different Railway Zones including the South East Central Railway, Bilaspur. The petitioners submitted two applications to the Chief Commercial Manager, South East Central Railway, Bilaspur and the applications were approved by the order dated 22nd December, 2006 with reference to the letter dated 28th September, 2006 sent by the South East Central Railway, Bilaspur forwarding the applications of the petitioner for consideration. Thereafter, an agreement dated 28th May, 2007 was executed between the Indian Railway and the petitioners. The petitioners submitted a letter dated 11th December, 2009 to the Chief Commercial Manager, South East Central Railway, Bilaspur for extending the delivery period for one year. In response to the said letter, a communication dated 28th January, 2010 was received by the petitioner at the Allahabad Office stating that for extension of time limit, the petitioners may approach the Railway Board. The petitioners thereafter filed a writ petition in the Allahabad High Court. The Division Bench held that the writ petition cannot be entertained by this Court since no part of cause of action had arisen within the territorial jurisdiction of this Court. The relevant observations are as follows:- "The petitioners claim that part of cause of action has arisen within the territorial jurisdiction of this Court since the petitioners received all communications from Railway Board as well as from respondent No.3 at its head office at Allahabad, which furnishes cause of action to the petitioners to approach this Court....................... From the above exposition of the phrase "cause of action", it is clear that 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 his judgment. The petitioners claim that part of cause of action has arisen within the territorial jurisdiction of this Court, is based on its pleading that communications were received at its head office at Allahabad. The petitioners claim that part of cause of action has arisen within the territorial jurisdiction of this Court, is based on its pleading that communications were received at its head office at Allahabad. The issue, thus, boils down to the fact that whether in facts of the present case sending of communication at Allahabad by the Railway Board as well as by respondent No.3 gives part of cause of action to the petitioner to invoke the territorial jurisdiction of this Court. The question as to whether receipt of communication or notice furnishes a cause of action, has been considered by the Apex Court and this Court on several occasions........... ................ Service of notice, communication of an order, when it form integral part of cause of action, the territorial jurisdiction may be at the place where notice is served or communication is received but when the said communication is only by way of sending information at the registered head office, which is not integral part of cause of action, the writ petition cannot be entertained at the place where the communication is said to be received. In the present case the challenge is to the decision of respondent No.3 not to grant extension in the period of supply of wagons and further for not to accept the prayer for changing of loading station, which challenge cannot fall on non proving the fact of receiving the communication at head office at Allahabad. The decision of respondent No.3 informing the petitioner 28th January, 2010 that petitioners may approach the Railway Board was taken at Bilsapur and the decision became effective as soon as it was taken. Even if the petitioners were not communicated the decision or even if the decision was not communicated or received by the petitioners, their cause of action is complete to challenge the action of respondent No.3. Thus the receipt of communication at head office at Allahabad cannot be said to be an integral part of cause of action which furnished a cause of action to challenge the decision of South East Central Railway, Bilaspur at Allahabad." 10. In State of Rajasthan and Ors. Vs. Thus the receipt of communication at head office at Allahabad cannot be said to be an integral part of cause of action which furnished a cause of action to challenge the decision of South East Central Railway, Bilaspur at Allahabad." 10. In State of Rajasthan and Ors. Vs. M/s Swaika Properties and Anr, (1985) 3 SCC 217 the Supreme Court held that mere service of notice under Section 52(2) of the Rajasthan Urban Improvement Act, 1959 on the respondents at their registered office at Calcutta will not give rise to a cause of action within the territorial jurisdiction of the Calcutta High Court, unless the service of such notice was an integral part of the cause of action. It was found that the entire cause of action culminating in the acquisition of land arose within the State of Rajasthan and the remedy was to file a petition before the Rajasthan High Court where the cause of action wholly or in part arose. 11. Thus, in view of the aforesaid decisions of the Full Bench of this Court in Rajendra Kumar Mishra, Division Bench of this Court in M/s Deeptiman Logistics Pvt. Ltd. and the decision of the Supreme Court in State of Rajasthan, it is not possible to hold that this Court will have the jurisdiction to entertain this petition merely because the petitioner is now residing within the territorial jurisdiction of this Court. 12. Thus, for all the reasons stated above, there is no illegality in the judgment which may call for interference by this Court. 13. The Special Appeal is, accordingly, dismissed.