IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 588 OF 2006 (SS) Rifleman Narayan Singh ………….Petitioner. Versus Union of India and others. ………..Respondents. Mr. Lalit Kumar, Advocate for petitioner. Mr. Pradeep Joshi, Standing Counsel for Union of India. With WRIT PETITION NO. 532 OF 2006 (SS) Ex. Rifleman (Safaiwala) Suresh Kumar (No. 75423 P) …………Petitioner. Versus Union of India and others. …….Respondents. Mr. Lalit Kumar, Advocate for petitioner. Mr. Pradeep Joshi, Standing Counsel for Union of India. 7th November, 2009 Hon’ble Sudhanshu Dhulia, J. Heard Mr. Lalit Kumar, Advocate for petitioners and Mr. Pradeep Joshi, Standing Counsel for Union of India/respondents. The petitioners have challenged the orders of Summary Court Martial, whereby they have been dismissed from their service. In Writ Petition No. 588 of 2006 (ss), the petitioner was working as a Rifleman (Sepoy) and vide order dated 30th January, 2002, he was dismissed from service. In 2 second Writ Petition No. 532 of 2006 (ss), the petitioner was working as a Rifleman (Sepoy) in the trade of a Safaiwala (Sweeper) and was dismissed from service vide order dated 24th April, 2002. A common objection has been raised by Mr. Pradeep Joshi, Standing Counsel for Union of India regarding the maintainability of the writ petitions itself. According to Mr. Pradeep Joshi, the writ petitions are not maintainable before this Court for lack of territorial jurisdiction and as no cause of action has occurred in the territory of Uttarakhand. It is an admitted fact that in both the cases, Summary Court Martial proceedings were initiated against the petitioners in the territory outside the Uttarakhand namely in Assam. However, learned counsel for the petitioners Mr. Lalit Kumar vehemently asserts that in both the cases, post confirmation appeals were filed before the Chief of the Army Staff and the order of the Chief of Army Staff by which the Post Confirmation Appeals were dismissed was communicated to the petitioners in the territory of Uttarakhand, hence they have a cause of action to file writ petitions before this Court. In view of this Court, this argument of the counsel for the petitioners is entirely misconceived as it is settled position of law that merely because a person resides in the territory A, this itself will not give that person a right to file a writ petition in the territory A, even though 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 a petition. 3 The petitioners, however, relied upon three judge decision of the Apex Court in Dinesh Chandra Gahtori Vs. Chief of Army Staff and another reported in (2001) 9 SCC 525. The facts of the case were that the appellant before the Apex Court had earlier filed a writ petition before the Allahabad High Court to quash a communication sent to his wife which stated that the appellant had been tried by a Summary Court Martial and had been found guilty of using criminal force against his superior officer and awarded the sentence of dismissal from service. The High Court dismissed the writ petition at the admission stage by holding that since the summary court-martial proceedings were conducted in the State of Punjab and orders were also passed in Punjab by the West Command, the High Court at Allahabad had no territorial jurisdiction to entertain the writ petition. In Special Leave Petition filed before the Apex Court, leave was granted as the Apex Court came to the conclusion as follows: “More importantly, it should have taken into consideration the fact that the Chief of Army Staff may be sued anywhere in the country. Placing reliance only on the cause of action, as the High Court did, was not justified.” The appeal was allowed, the order impugned before the Apex Court was set aside and the writ petition was restored to the High Court of Judicature at Allahabad to decide the same on merits, expeditiously. However, this decision of the Apex Court was considered by a Full Bench of Allahabad High Court in Rajendra Kumar Mishra Vs. Union of India and others 4 reported in [(2005) 1 UPLBEC 108], where the question to be decided before the Full Bench was as to which High Court shall have jurisdiction in such matters and the Full Bench after considering the entire law on the subject including the decision of the Supreme Court in Dinesh Chandra Gahtori (supra) 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.” 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. 5 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 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 6 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.” 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 7 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.” 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 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 8 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.” 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 the territorial aspect. However, it is the considered view of this Court merely because the Chief of the Army Staff has passed the impugned order, which was received in the territory of Uttarakhand by the petitioner, will not constitute “a cause of action”, as stated under Article 226 of the Constitution of India. Learned counsel for the petitioners Mr. Lalit Kumar lastly asserts that since the writ petitions were admitted in the year, 2006 and 2007 respectively, 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 petitioners 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 9 admitted is of no consequence since first and foremost what must be seen is the jurisdiction of the Court itself. 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 petitions. Both the writ petitions are, therefore, dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 7.11.2009 Rathour