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2023 DIGILAW 293 (JK)

Gulab Lone v. Union of India

2023-07-19

SANJAY DHAR

body2023
JUDGMENT : 1. The petitioner has challenged order bearing No.ESTT/116/SSFC/GL/2010/10958-70 dated 10th May, 2010, whereby he has been dismissed from service. 2. As per the case of the petitioner, he was selected as a Water Carrier in Border Security Force (BSF) on 1st November, 1991 and was posted at SHQ Bandipora upto the year 1994. In the year 1996, he was dismissed from service on the basis of a charge that he had submitted false information that his qualification was 9th class pass. The petitioner challenged the aforesaid order of his discharge from service by way of a writ petition bearing SWP No.2080/97 before this Court and on the basis of an interim order passed by this Court, he was reinstated vide order dated 23rd June, 1997. Accordingly, the petitioner was allowed to work as Water Carrier. However, the aforesaid writ petition was dismissed for non-prosecution and the petitioner was again dismissed from service vide SHQ BSF Bandipora order No.Adm/143/GB/98/10175-81 dated 9th October, 1998. The writ petition was restored to its original number by this Court in terms of order dated 23.04.1999 and consequent upon restoration of the writ petition, the petitioner was again allowed to work as Water Carrier in terms of order No.6796-804 dated 6th August, 1999, issued by SHQ, Bandipora. The writ petition was finally allowed by this Court in terms of order dated 23.07.2008 and the order of discharge of the petitioner from service was quashed. In compliance to the judgment of this Court, the petitioner was reinstated with effect from 25th June, 1995, in terms of the order issued by Commandant 116 Bn. BSF, Maheshpur (West Bengal) on 28th November, 2008. 3. It seems that the respondents initiated an enquiry against the petitioner on the same charge on which he was discharged on an earlier occasion and after holding the enquiry, the impugned order came to be passed by Commandant 116 Bn. BSF, Loktak Manipur. It is this order which is under challenge by way of instant writ petition before this Court. 4. The respondents have raised a preliminary objection to the maintainability of the writ petition on the ground that no part of cause of action has accrued in favour of the petitioner within the territorial jurisdiction of this Court, as such, writ petition is not maintainable before this Court. 5. 4. The respondents have raised a preliminary objection to the maintainability of the writ petition on the ground that no part of cause of action has accrued in favour of the petitioner within the territorial jurisdiction of this Court, as such, writ petition is not maintainable before this Court. 5. Having regard to the nature of preliminary objection raised by the respondents, it would be apt to deal with the said objection in the first instance. 6. Learned counsel for the respondents has submitted that none of the respondents is based within the territorial jurisdiction of this Court and that no part of cause of action has arisen in favour of the petitioner within the territorial jurisdiction of this Court, as such, the writ petition before this Court is not maintainable. 7. On the other hand, learned counsel appearing for the petitioner has submitted that the petition has been admitted to hearing and the issue with regard to territorial jurisdiction of this Court to entertain the writ petition has not been pressed by the respondents at any stage of these proceedings. 8. I have heard learned counsel for the parties and perused the record of the case. 9. Article 226 of the Constitution of India defines the power of High Courts to issue writs. Clause (2) of the said Article defines the territorial limits within which the High Court can exercise its writ jurisdiction. It reads as under: (2) 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. 10. 10. From a perusal of the language of Clause (2) of Article 226 quoted above, it is clear that irrespective of the seat of the Government or the authority or the residence of the person against whom writ is sought to be issued, the High Court is vested with power to exercise its jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, meaning thereby if any part of cause of action arises within the territorial jurisdiction of a High Court, it will be well within its powers to issue writs against the respondents even if the seat of the respondents is located outside its territorial limits. 11. In the above context, it would be apt to refer to the decision of the Supreme Court in the case of M/S. Kusum Ingots & Alloys Ltd vs Union of India and anr., (2004) 6 SCC 254 , In the said case, a similar issue was raised before the Supreme Court as to whether the High Court of Delhi would have requisite territorial jurisdiction to entertain a writ petition in which case the seat of the Government is in Delhi. While considering the aforesaid issue, the Supreme Court after referring to the provisions contained in Article 226(2) of the Constitution of India as also Section 20(c) of the Code of Civil Procedure, held as under: “9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts. 12. In the same judgment, the Supreme Court held that even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. The expression material facts is also known as integral facts. 12. In the same judgment, the Supreme Court held that even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. The Supreme Court further observed that the court must have the requisite territorial jurisdiction in the absence of which a writ petition cannot be entertained. 13. From the analysis of the law on the subject, it is clear that if it is shown by the petitioner that any part of the cause of action has arisen in his favour within the territorial jurisdiction of this Court, it would be open for this Court to exercise its writ jurisdiction against the respondents even if none of the respondents is located within the territorial limits of this Court. 14. In the instant case, the order of termination of the petitioner, which is under challenge, has been issued by respondent No.3 at Loktak Manipur. The enquiry proceedings, on the basis of which the impugned order of termination of the petitioner has been issued, have also taken place at Manipur. The order of termination has been served upon the petitioner at Manipur while he was participating in the enquiry proceedings at the said place where 116 Bn of BSF was stationed at the relevant time. Therefore, no part of cause of action has arisen within the territorial jurisdiction of this Court. 15. It is true that the petitioner was appointed as a Water Carrier by an order issued by Commandant 116 Bn. BSF when it was stationed at Bandipora, Kashmir, but then the said fact is not a fact which forms part of cause of action. In order to confer jurisdiction on a High Court to entertain a writ petition, it must be disclosed that the entire facts pleaded in support of the cause of action do constitute a cause so as to empower the court to decide a dispute which has arisen within its jurisdiction. Each and every fact pleaded by the petitioner in his writ petition does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the territorial jurisdiction of this Court unless those facts are such which have a nexus or relevance with the lis involved in the case. Each and every fact pleaded by the petitioner in his writ petition does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the territorial jurisdiction of this Court unless those facts are such which have a nexus or relevance with the lis involved in the case. In this regard, I am supported by the judgment of the Supreme Court in the case of Union of India & Ors vs Adani Exports Ltd, (2002) 1 SCC 567 . Para 17 of the said judgment is relevant to the context and the same is reproduced as under: 17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied 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 a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their application 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 the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. If we apply this principle then we see that none of the facts pleaded in para 16 of the petition, in our opinion, falls into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad. 16. Again, the Supreme Court has, in the case of Om Prakash Srivastava vs. Union of India, (2006) 6 SCC 207 , observed as under: 7. 16. Again, the Supreme Court has, in the case of Om Prakash Srivastava vs. Union of India, (2006) 6 SCC 207 , observed as under: 7. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limits 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, a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court's jurisdiction and such infringement may take place by causing him actual injury or threat thereof. 17. From the foregoing analysis of the law on the subject, it is clear that the cause of action means every fact which it would be necessary for the petitioner to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact but every fact it is necessary to be proved. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the petitioner a right to claim relief against the respondents. It must include some act done by the respondents, since in the absence of such an act no cause of action would possibly accrue or would arise. 18. Coming to the facts of the instant case, the fact that the petitioner has been appointed by Commandant 116 Bn. BSF, when it was stationed at Bandipora and the fact that the petitioner issued a legal notice upon the respondents, are not such facts as would form a part of cause of action in his favour. It is only the facts relating to termination of his services, the enquiry conducted against him and the service of termination notice upon him that would determine the seat of jurisdiction. All these events have taken place outside the territorial limits of this Court. Therefore, this Court does not have jurisdiction to entertain the instant writ petition. 19. It is only the facts relating to termination of his services, the enquiry conducted against him and the service of termination notice upon him that would determine the seat of jurisdiction. All these events have taken place outside the territorial limits of this Court. Therefore, this Court does not have jurisdiction to entertain the instant writ petition. 19. So far as contention of the learned counsel for the petitioner that the respondents are barred from urging the plea regarding maintainability of writ petition on the ground of territorial jurisdiction in view of their conduct, is concerned, the same appears to be without any merit. If we have a look at the pleadings of the parties, the very first para of the reply filed by the respondents relates to maintainability of the writ petition on the ground of territorial jurisdiction. The writ petition has been admitted to hearing on 04.02.2011 when the respondents had not even put in their appearances. Therefore, they had no occasion to raise the plea of jurisdiction at the time of admission of the writ petition. Even otherwise, the parties by their conduct or acquiescence cannot confer jurisdiction on a Court which otherwise does not possess the same. The matter regarding territorial jurisdiction of a court fundamentally relates to taking of cognizance of a case. If a Court, which lacks territorial jurisdiction, entertains a writ petition, it would be an inherent defect which cannot be cured even by consent of the parties. Therefore, even if it is assumed, though it is not correct, that the respondents acquiesced and submitted to the jurisdiction of this Court, still then, because this Court lacks inherent jurisdiction to entertain the writ petition, it cannot adjudicate upon the merits of this case. 20. For the foregoing reasons, the preliminary objection raised by the respondents is upheld and the writ petition is dismissed for lack of territorial jurisdiction. The petitioner shall, however, be at liberty to approach the appropriate forum in accordance with the law. 21. The record be returned to learned counsel for the respondents.