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
Court’s jurisdiction.
(Para 19)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7414 OF 2014
(arising out of SLP (C) No.19549 of 2013)
Nawal Kishore Sharma
….Appellant(s)
Versus
Union of India and Others
… Respondent(s)
JUDGMENT: M.Y. EQBAL, J.
1.
Leave granted.
2. Aggrieved by the judgment and order
dated 16.4.2013 passed by learned Single
Judge of Patna High Court dismissing appellant’s writ petition for want of territorial jurisdiction, this appeal by
special leave has been preferred by the appellant, who in November, 1988 had
joined the off-shore Department of the Shipping Corporation of India (in short,
“the Corporation”) and after about eight years he was transferred from the
off-shore duty to a main fleet in the Foreign Going Department.
3. It is the case of the appellant that
he was found medically fit in the medical test conducted by the Marine Medical
Services in February, 2009 and thereafter, on 29.9.2009, an agreement known as
the articles of agreement for employment
of seafarers was executed for appellant’s off-shore duty. On 18.6.2010, when
the appellant reported sickness i.e. cough, abdominal pain, swelling in leg and
difficulty in breathing, he was sent for medical treatment ashore at Adani,
Mundra Port. The Medical Officer ashore advised him for admission in the
Hospital and accordingly he was signed off for further medical treatment.
Thereafter, he was considered permanently unfit for sea service due to dilated
cardiomyopathy (heart muscle disease) as per certificate dated 18.3.2011 issued
by Corporation’s Assistant Medical Officer. Consequently, the Shipping
Department of the Government of India, Mumbai issued order dated 12.4.2011
cancelling registration of the appellant as a Seaman.
4. It is contended by the appellant
that after he settled at his native place Gaya, Bihar, he sent several letters/
representations from there to the respondents for his financial claims as per
statutory provisions and terms of
contract. On the disability compensation claim, Respondent
no.2-Corporation communicated vide letter dated 7.10.2011 that since the
appellant was declared unfit for sea service due to heart problem (organic
ailment) he will be entitled to receive severance compensation of
Rs.2,75,000/-, which was although offered, but not accepted by the appellant.
It was also informed that he is not entitled to receive disability
compensation, which becomes payable only in case a seaman becomes incapacitated
as a result of the injury.
5. By filing a writ petition, the appellant approached Patna High Court under
Article 226 of the Constitution of India for grant of various reliefs including
100% disability compensation and pecuniary damages. However, at the time of
hearing, respondents raised the question of maintainability of the writ
petition on the ground that no cause of action or even a fraction of cause of
action arose within the territorial jurisdiction of the Patna High Court and contended
that the appellant was appointed by the Corporation on the post of Seaman for
off-shore services and he discharged his duty outside the territory of the
State of Bihar. It is the case of the respondent that the order declaring the
appellant permanently unfit as well as the letter/order dated 7.10.2011 was
passed by an authority of the respondent Corporation at Mumbai. Per contra, it
is the case of the appellant that he is a permanent resident of Bihar and he
asserted his rights in the State of Bihar and all communications with respect
to rejection of his claims were made at his residential address in the State of
Bihar.
6. After hearing learned counsel
appearing for the parties and considering entire materials on record, learned
Single Judge of the Patna High Court dismissed the writ petition of the
appellant holding that no cause of action,
not even a fraction of cause of action, arose within its territorial
jurisdiction. Hence, the present appeal by special leave.
7. We have heard learned counsel appearing
for the parties.
8. The short question that falls for
consideration in the facts of the present case is that as to whether the Patna High
Court is correct in taking the view that it has no jurisdiction to entertain
the writ petition. For answering the said question we would like to consider
the provision of Article 226 of the Constitution as it stood prior to amendment.
Originally, Article 226 of the Constitution read as under:-
“Art.226. Power of High Courts to issue
certain writs. – (1) Notwithstanding
anything in article 32, every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases any Government, within those
territories directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, or any of them
or the enforcement of any of the rights conferred by Part III and for any other
purpose.
(2) The power conferred on a High Court by
clause (1) shall not be in derogation of
the power conferred on the Supreme Court by clause (2) of article 32”.
9. While interpreting the aforesaid
provision the Constitution Bench of this Court in the case of Election Commission,
India vs. Saka Venkata Rao, AIR 1953 SC 210, held that
the writ court would not run beyond the territories subject to its jurisdiction
and that the person or the authority affected by the writ must be amenable to court’s
jurisdiction either by residence or location within those territories. The rule
that cause of action attracts jurisdiction in suits is based on statutory
enactment and cannot apply to writs issued under Article 226 of the Constitution
which makes no reference to any cause of
action or where it arises but insist on the presence of the person or
authority within the territories in relation to which High Court exercises
jurisdiction. In another Constitution Bench judgment of this Court in K.S.
Rashid and Son vs. Income tax Investigation Commission Etc., AIR
1954 SC 207, this Court took the similar view and held that the writ court
cannot exercise its power under Article 226 beyond its territorial
jurisdiction. The Court was of the view that the exercise of power conferred by
Article 226 was subject to a two-fold limitation viz., firstly, the power is to
be exercised in relation to which it exercises jurisdiction and secondly, the
person or authority on whom the High Court is empowered to issue writ must be
within those territories. These two Constitution Bench judgments came for
consideration before a larger Bench of seven Judges of this Court in the case
of Lt. Col. Khajoor Singh vs. Union of India and another,
AIR 1961 SC 532. The Bench approved the aforementioned two Constitution
Bench judgments and opined that unless there are clear and compelling reasons,
which cannot be denied, writ court cannot exercise jurisdiction under Article
226 of the Constitution beyond its territorial jurisdiction.
10.
The interpretation
given by this Court in the aforesaid decisions resulted in undue hardship and inconvenience
to the citizens to invoke writ jurisdiction. As a result, Clause 1(A) was
inserted in Article 226 by the Constitution (15th) Amendment Act, 1963 and subsequently
renumbered as Clause (2) by the Constitution (42nd) Amendment Act, 1976. The
amended Clause (2) now reads as under:-
“226. Power of the High Courts to issue
certain writs – (1)
Notwithstanding anything in article 32, every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to
issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.
(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.
(3) xxxxx
(4) xxxxx”
11.
On a plain reading of the amended provisions
in Clause (2), it is clear that now High Court can issue a writ when the person
or the authority against whom the writ is issued is located outside its
territorial jurisdiction, if the cause of action wholly or partially arises
within the court’s territorial jurisdiction. Cause of action for the purpose of
Article 226 (2) of the Constitution, for all intent and purpose must be
assigned the same meaning as envisaged under Section 20(c) of the Code of Civil
Procedure. The expression cause of action has not been defined either in the
Code of Civil Procedure or the Constitution. Cause of action is bundle of facts
which is necessary for the plaintiff to prove in the suit before he can
succeed.
12.
The term ‘cause of action’ as appearing in
Clause (2) came for consideration time and again before this Court.
13.
In the case of State of Rajasthan and
Others vs. M/s Swaika Properties and Another, (1985) 3
SCC 217, the fact was that the respondent-Company having its registered office
in Calcutta owned certain land on the outskirts of Jaipur City was served with
notice for acquisition of land under Rajasthan Urban Improvement Act, 1959.
Notice was duly served on the Company at its registered office at Calcutta. The
Company, first appeared before the Special Court and finally the Calcutta High
Court by filing a writ petition challenging the notification of acquisition.
The matter ultimately came before this Court to answer a question as to whether
the service of notice under Section 52(2) of the Act at the registered office
of the Respondent in Calcutta was an integral part of cause of action and was
it sufficient to invest the Calcutta High Court with a jurisdiction to entertain
the petition challenging the impugned notification. Answering the question this
Court held:-
“7. Upon these facts,
we are satisfied that the cause of action neither wholly nor in part arose
within the territorial limits of the Calcutta High Court and therefore the
learned Single Judge had no jurisdiction to issue a rule nisi on the petition
filed by the respondents under Article 226 of the Constitution or to make the
ad interim ex parte prohibitory order restraining the appellants from taking
any steps to take possession of the land acquired. Under sub- section (5) of
Section 52 of the Act the appellants were entitled to require the respondents
to surrender or deliver possession of the lands acquired forthwith and upon
their failure to do so, take immediate steps to secure such possession under
sub-section (6) thereof.
8. The expression “cause of action” is tersely
defined in Mulla’s 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.”
14.
This provision was again considered by this
Court in the case of Oil and Natural Gas Commission vs. Utpal
Kumar Basu and others, (1994) 4 SCC 711. In this case the
petitioner Oil and Natural Gas Commission (ONGC) through its consultant
Engineers India Limited (EIL) issued an
advertisement in the newspaper inviting tenders for setting up of Kerosene
Recovery Processing Unit in Gujarat mentioning that the tenders containing offers
were to be communicated to EIL, New Delhi. After the final decision was taken
by the Steering Committee at New Delhi, the respondent NICCO moved the Calcutta
High Court praying that ONGC be restrained from awarding the contract to any
other party. It was pleaded in the petition that NICCO came to know of the
tender from the publication in the “Times of India” within the jurisdiction of
the Calcutta High Court. This Court by setting aside the order passed by the
Calcutta High Court came to the following conclusion :-
“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. 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.”
15.
In Kusum Ingots & Alloys Ltd.
vs. Union of India and Another, (2004) 6 SCC 254, this
Court elaborately discussed Clause (2) of Article 226 of the Constitution, particularly
the meaning of the word ‘cause of action’ with reference to Section 20(c) and
Section 141 of the Code of Civil Procedure and observed:-
“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.
10. Keeping in view the expressions used in
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.”
Their Lordships further observed as
under:-
“29. In view of clause (2) of
Article 226 of the Constitution of
India, now if a part of cause of action
arises outside the jurisdiction of the High Court, it would have jurisdiction
to issue a writ. The decision in Khajoor Singh has, thus, no
application.
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.”
16.
In the case of Union of India and others
vs. Adani Exports Ltd. and another, (2002) 1 SCC 567, this Court held
that in order to confer jurisdiction on a High Court to entertain a writ
petition it must disclose that the integral facts pleaded in support of the
cause of action do constitute a cause so as to empower the court to decide the
dispute and the entire or a part of it arose within its jurisdiction. 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 are such which have a nexus or relevance with the
lis i.e. involved in the case. This Court observed:
“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.”
17.
In Om Prakash Srivastava vs. Union
of India and Another (2006) 6 SCC 207, answering a similar question
this Court observed that on a plain reading of
Clause(2) of Article 226 it is manifestly clear that the High Court can
exercise power to issue direction, order or writs for the enforcement of any of
the fundamental rights or for any other purpose if the cause of action in relation
to which it exercises jurisdiction notwithstanding that the seat of the
Government or authority or the residence of
the person against whom the direction, order or writ is issued is not
within the said territory. In para 7 this Court observed:-
“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.”
18.
In the case of
Rajendran Chingaravelu vs. R.K. Mishra, Additional Commissioner of Income
Tax and Others, (2010) 1 SCC 457, this Court while considering the scope of Article 226(2) of
the Constitution, particularly the cause of action in maintaining a writ petition,
held as under:
“9. The first question that arises for consideration is
whether the Andhra Pradesh High Court was justified in holding that as the seizure
took place at Chennai (Tamil Nadu), the appellant could not maintain the writ
petition before it. The High Court did not examine whether any part of cause of
action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that
the High Court exercising jurisdiction in relation to the territories within which
the cause of action arises wholly or in part, will have jurisdiction. This
would mean that even if a small fraction of the cause of action (that bundle of facts which gives a petitioner,
a right to sue) accrued within the territories of Andhra Pradesh, the High
Court of that State will have
jurisdiction.
xxxxxx
11. Normally, we would have set aside the order
and remitted the matter to the High Court for decision on merits. But from the persuasive
submissions of the appellant, who appeared in person on various dates of hearing, two things stood out. Firstly,
it was clear that the main object of the petition was to ensure that at least
in future, passengers like him are not put to unnecessary harassment or undue
hardship at the airports. He wants a direction for issuance of clear guidelines
and instructions to the inspecting officers, and introduction of definite and
efficient verification/investigation procedures. He wants changes in the
present protocol where the officers are uncertain of what to do and seek instructions
and indefinitely wait for clearances from higher-ups for each and every routine
step, resulting in the detention of passengers for hours and hours. In short,
he wants the enquiries, verifications and investigations to be efficient,
passenger-friendly and courteous. Secondly, he wants the
Department/officers concerned to acknowledge that he was unnecessarily
harassed.”
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 Court’s jurisdiction.
20.
We have perused the facts pleaded in the writ petition
and the documents relied upon by the appellant. Indisputably, the appellant
reported sickness on account of various ailments including difficulty in
breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the
respondent permanently declared the appellant unfit for sea service due to
dilated cardiomyopathy (heart muscles disease). As a result, the Shipping
Department of the Government of India issued an order on 12.4.2011 cancelling
the registration of the appellant as a seaman. A copy of the letter was sent to
the appellant at his native place in Bihar where he was staying after he was
found medically unfit. It further appears that the appellant sent a
representation from his home in the State of Bihar to the respondent claiming
disability compensation. The said representation was replied by the respondent,
which was addressed to him on his home address in Gaya, Bihar rejecting his
claim for disability compensation. It is further evident that when the
appellant was signed off and declared medically unfit, he returned back to his
home in the District of Gaya, Bihar and, thereafter, he made all claims and
filed representation from his home address at Gaya and those letters and
representations were entertained by the respondents and replied and a decision
on those representations were communicated to him on his home address in Bihar.
Admittedly, appellant was suffering from serious heart muscles disease (Dilated
Cardiomyopathy) and breathing problem which forced him to stay in native place,
wherefrom he had been making all correspondence with regard to his disability
compensation. 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.
21.
Apart
from that, from the counter affidavit of the respondents and the documents
annexed therewith, it reveals that after the writ petition was filed in the
Patna High Court, the same was entertained and notices were issued. Pursuant to
the said notice, the respondents appeared and participated in the proceedings
in the High Court. It further reveals that after hearing the counsel appearing
for both the parties, the High Court passed an interim order on 18.9.2012
directing the authorities of Shipping
Corporation of India to pay at least a sum of
Rs.2.75 lakhs, which shall be subject to the result of the writ
petition. Pursuant to the interim order, the
respondent Shipping Corporation of India remitted Rs.2,67,270/- (after deduction of income tax)
to the bank account of the appellant. However, when the writ petition was taken
up for hearing, the High Court took the view that no cause of action, not even
a fraction of cause of action, has
arisen within its territorial jurisdiction.
22.
Considering the entire facts of the case
narrated hereinbefore including the interim order passed by the High Court, in
our considered opinion, the writ petition ought not to have been dismissed for
want of territorial jurisdiction. As noticed above, at the time when the writ petition
was heard for the purpose of grant of interim relief, the respondents instead
of raising any objection with regard to territorial jurisdiction opposed the
prayer on the ground that the writ petitioner-appellant was offered an amount
of Rs.2.75 lakhs, but he refused to accept the same and challenged the order
granting severance compensation by filing the writ petition. The impugned
order, therefore, cannot be sustained in the peculiar facts and circumstances
of this case.
23.
In the aforesaid, the appeal is allowed and
the impugned order passed by the High Court is set aside and the matter is
remitted to the High Court for deciding the writ petition on merits.
…………………………….J.
(Ranjan Gogoi)
…………………………….J.
(M.Y. Eqbal)
New Delhi,
August 7,
2014.
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