IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/B) NO. 1728 OF 2002 Ex. Recruit TC No. 56219, Lal Singh .……….Petitioner. Versus Union of India and others. ……..Respondents. Present :- Mr. Manoj Tiwari, Senior Advocate with Mr. Bhagwat Mehra, Advocate for the petitioner. Mr. Vikas Pande, Standing Counsel for Union of India/respondents. Date of Decision :- 29.7.2010 Hon’ble Sudhanshu Dhulia, J. 1. Heard Mr. Manoj Tiwari, Senior Advocate assisted by Mr. Bhagwat Mehra, Advocate for the petitioner and Mr. Vikas Pande, Advocate for the respondents. 2. Brief facts of the case are that the petitioner was enrolled as a Recruit in Assam Rifles on 13.12.1998 and underwent for training to the Diphu Training Battalion, Assam Rifles Training Centre and School, Dimapur from 1.1.1999 to 24.11.1999. However, for want of confirmation of his antecedent by the District Magistrate, Pithorgarh, he could not be attested to become a permanent Rifleman. Subsequently, on 22.11.1999, Commanding Officer, Assam Rifles Training Centre and School, Dimapur, Nagaland i.e. respondent no. 3 dismissed the services of the petitioner on the ground that as per the report of the Deputy Commissioner, District Pithoragarh, the petitioner is involved in a criminal case under Sections 307/385/506 I.P.C. The petitioner contends that no opportunity of hearing or show cause was given to him before dismissing him from service. Subsequently, on 20.12.2000, the Adjutant Assam Rifles sent a letter to the mother of the petitioner stating that she may send the petitioner to report Assam Rifles Training Centre and School, Dimapur, Nagaland. Consequently, the petitioner reported in the Trainng Centre and School on 7.1.2001 and continued the training till 4.8.2001. However, on 12.3.2001 the Officiating Commandant Assam Training Centre and School passed an order sentencing the petitioner seven days’ imprisonment in Assam Rifles custody on the charge that he has given false answer to Question No. 12 of the Enrolment Form and 2 has answered in negative regarding his arrest / confinement. Thereafter, the Commanding Officer passed another order dated 4.8.2001 (Annexure-5 to the Writ Petition) terminating the services of the petitioner on the same charge. Thereafter the petitioner submitted a Post Confirmation Petition before the Director General, Assam Rifles which has also been rejected vide an order dated 9.2.2002 (Annexure -7 to the writ petition). It is these two orders, which have been challenged by the petitioner in the instant Writ Petition. 3. The admitted facts of this case are that the impugned orders have been passed in Nagaland and the Authority, who had passed the impugned orders was also situated at Nagaland. The writ petition has been filed in the High Court of State of Uttarakhand. Therefore, first and foremost what has to be seen is whether this Court has jurisdiction in this matter. 4. In the counter affidavit objections have been taken by the respondents regarding maintainability of the writ petition in this High Court. This question, however, stands settled by catena of decisions of the Apex Court as well as of different High Courts. 5. Learned counsel for the petitioner submits that this Court will have jurisdiction in this matter since the petitioner resides in the State of Uttarakhand. 6. In view of this Court, the argument of the counsel for the petitioner regarding jurisdiction of this Court in the present matter are entirely misconceived as it is a settled position of law that merely because a person resides for example in a territory “A”, this itself will not give that person a right to file a writ petition in territory “A”, if the order impugned has been passed in territory “B”. It is the location of the authority concerned, which would matter and not the physical location of the person, who is filing the petition. 7. A Full Bench of Allahabad High Court in Rajendra Kumar Mishra Vs. Union of India and others reported in [(2005) 1 UPLBEC 108], on the question as to which High Court shall have jurisdiction in such matters, after considering the entire law on the subject including the decision of the Supreme Court in Dinesh Chandra Gahtori Vs. Chief 3 of Army Staff and another reported in (2001) 9 SCC 525 stated as follows: “10. In our opinion the observation in the aforesaid decision “The Chief of Army Staff may be sued in any High Court in the Country” cannot be construed to mean that the Supreme Court has laid down any absolute proposition that it is open to the petitioner to file a writ petition in any High Court in India. Such as absolute proposition as canvassed by the learned Counsel for the petitioner may lead to conflicting decisions because different petitions can be filed in different High Courts by co-accused in the same case and conflicting decisions can be given. 11. It may be noted that the aforesaid observation in the three Judges decision of the Supreme Court in Dinesh Chandra Gahtori’s case (supra) is only a laconic observation and it cannot be override Larger Bench decisions of the Supreme Court. 12. In the present case it may be noted that the misconduct was committed at the 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.” 8. In the same Full Bench decision, the Court referred to various decisions of the Supreme Court and came to the conclusion that in such matters the High Court which will have jurisdiction will be the High Court in which territorial jurisdiction, the order impugned has been passed. 9. Referring the case of Supreme Court in Lt. Col. Khajoor Singh Vs. Union of India Air 1961 SC 532, the Full Bench of the Allahabad High Court has further stated as follows: “13. In our opinion merely because the petitioner is presently residing in 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, AIR 1961 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 he 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 4 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.” 10. The Full Bench of Allahabad High Court has also referred the decision of the Supreme Court in Oil and Natural Gas Commission Vs. Utpal Kumar Basu reported in (1994) 4 SCC 711, where the Supreme Court held as under: “Under Article 226 a High Court can exercise the power to issue directions, orders of writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part, had arisen within the territories 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 territories. The expression “cause of action” means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. 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. Thus, the question of territorial jurisdiction must be decided on the facts pleaded in the petitioner, the truth or otherwise of the averments made in the petition being immaterial.” 11. Relying upon the case of Supreme Court in Rajasthan High Court Advocates Association v. Union of India and others, AIR 2001 SC 416, the Full Bench of the Allahabad High Court has stated as under: “21. Similarly in Rajasthan High Court Advocates Association v. Union of India and ors, AIR 2001 SC 416, the 5 Supreme Court held that clauses (1) and (2) of Article 226 of the Constitution provide how territorial jurisdiction shall be exercised by any High Court and one of the test may be as to whether the cause of action partly or fully has arisen within its territorial jurisdiction. While deciding the said case reliance was placed upon the Court’s earlier judgment in U.P. Rashtriya Chini Mill Adhikari Parishad v. State of U.P., (1995) 4 SCC 738, wherein it had been held that the expression “cause of action” has acquired a judicially-settled meaning. In the restricted sense, cause of action means the circumstances forming, the infraction of the right of the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises the “cause of action”. It has to be left to be determined in each individual case as to where the cause of action arises.” 12. It is true that after the amendment made in Article 226 of the Constitution, the jurisdiction would depend upon the “cause of action” or “part of cause of action” and not merely on territory. However, it is the considered view of this Court merely because the petitioner resides in the territory of Uttarakhand will not constitute “a cause of action”, as contemplated under Article 226 of the Constitution of India. 13. Learned Senior Counsel for the petitioner Mr. Manoj Tiwari, asserts that since the writ petition was admitted in the year, 2002 and the counter and rejoinder affidavits have been exchanged, the case must be heard on its merits and may not be dismissed on the ground of jurisdiction. This argument of the counsel for the petitioner is also misconceived inasmuch as once the Court has come to the conclusion that the writ petition is not maintainable before this Court, as there is no cause of action for filing the writ petition before this Court, the fact that the writ petition has earlier been admitted and counter and rejoinder affidavits have been exchanged is of no consequence since first and foremost what must be seen is the jurisdiction of the Court itself. 6 14. The Court is satisfied that no cause of action arises in the territory of Uttarakhand and that it has no jurisdiction to entertain the writ petition. The writ petition therefore is liable to be dismissed and is hereby dismissed. 15. No order as to costs. (Sudhanshu Dhulia, J.) 29.07.2010 Rathour