IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16911 of 2011 =================================================== 1. Mithilesh Kumar Singh S/O Late Dinesh Kumar Singh R/O Village- Rambariya, P.O.-Majhauliya, P.S.- Buxar Industrial Area, District- Buxar, At Present D/104, Daroga Prasad Rai Path, Patna, Bihar .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna 2. The Railway Board Through Its Chairman, Ministry Of Railway Board, New Delhi 3. The Director, Cbi, New Delhi 4. The Joint Director, Finance, Railway Board, New Delhi 5. The Secretary Personnel, Public Grievances And Pension, Department Of Personnel And Training, North Block, New Delhi 6. The Under Secretary Personnel, Public Grievances And Pension, Department Of Personnel And Training, North Block, New Delhi 7. Mr. Nitish Kumar S/O Late Ram Lakhan Prasad R/O Village-................, P.S.- Bakhtiyarpur, Distt.- Patna, The Then Minister Of Railways, Union Government Of India, Now The Chief Minister, Government Of Bihar, 1 Anne Marg, Patna 8. The Secretary, Home Department, Union Of India, New Delhi .... .... Respondent/s =================================================== Appearance : For the Petitioner : Mr. Dinu Kumar, Advocate Mr. Shiv Kumar Prabhakar, Advocate Mr. Arvind Kumar Sharma, Advocate For the state : Mr. Lalit Kishor Aag-1 Mr. Vikash Kumar, A.C. to A.A.G.1 Mr. Shivam Singh, A.C. to A.A.G.-1 For the C.B.I. :- Mr. Bipin Kr. Sinha, Advocate For the Union of India :- Mr. Raghib Ahsan, A.S.G. For the Indian Railways :- D.K. Sinha, Sr. Advocate =================================================== 2 12-10-2011 The present writ petition has been filed in the nature of Public Interest Litigation seeking the following reliefs :- 2 (i) For directing to the Director, CBI to complete the investigation relating to Sleeper procurement causing loss of Rs.200 Crores to the Government exchequer which was handed over by the decision of Standing Committee on Railways in the year 2004. (ii) And also for directing the CBI to submit the status report of investigation about Sleeper procurement scam causing loss of Rs. 200 Crores to the Hon’ble High Court, Patna. (iii) And also for necessary order, direction, relief for which petitioner is entitled in the eye of law and the facts of the case. The case of the petitioner seems to be that there was a policy decision of the Ministry of Railways for open tender regarding procurement of concrete sleepers. According to him the policy was reviewed at the instance of Sri Nitish Kumar, the then Minister for Railways vide Tender No. CS 145/2000 and CS 152/2002. According to the petitioner Railway suffered loss to the tune of Rs.200 Crores which was given to Daya Company and others. Subsequent facts reveal that, according to the petitioner, the genuine firms which were eligible to get tenders i.e. tender no. CS 152/2002 was not considered and thereby a loss of 3 Rs.200 crores has occurred to the Railways. It is further stated in the supplementary affidavit filed in support of the writ petition that the first Sitting of the Standing Committee of Railways has submitted a report on 17.08.2004 and the petitioner has chosen to mention the report of the Standing Committee, as contained in Annexure- 1. Subsequently, the petitioner has chosen to mention the communication that has taken place by different departments and it is stated by him at paragraph 9 of the affidavit that the C.B.I. has taken up investigation which is apparent from point no.1.9 and the views of Standing Committee have been communicated to CBI with a request to look into the matter with reference to Standing Committee’s observations which are as follows: “That it is apparent from Point no.1.9 which speaks matter has been taken up by the CBI for investigation. Views of Standing Committee have been communicated to CBI with a request to look into the matter with reference to Standing Committee’s observations. As regard the matter relating to the losses suffered by the Railways due to transportation charges of concrete sleepers, same has been handed over to CBI for investigation. The Committee desires that the enquiry report of the CBI and the new guidelines finalized for procurement of sleepers and decision taken for opening of new plants in Zonal Railways having deficiency in production be placed before the Committee as and when received and reviewed. (Extract of photo copy of the 7th report of Standing Committee on Railways taken in minute of the 19th sitting of the Standing 4 Committee on 17th February, 2005 is annexed and marked as Anneuxre-2). It has also been stated in paragraph 8 that the Committee had desired that the losses incurred on this account should be enquired into by an independent agency. It is also stated in paragraph 11 that the petitioner started to seek information under the Right to Information Act from the Ministry of Railways upon which the petitioner has been served a communication dated 06.10.2008 as contained in Annexure-3 under the signature of Public Information Officer, Railway Board at the address of FD/104, Daroga Prasad Rai Path, Patna, Bihar which falls under the jurisdiction of Patna High Court. It is also stated in paragraph 12 that in the communication dated 06.10.2008 issued by Sunil Kumar, Public Information Officer, Railway Board the CBI was prohibited not to supply the information and as such no information has been supplied from the Railway Department about sleeper procurement. The matter is referred in paragraph-146 of the Standing Committee report. It is also further disclosed that on the application of the petitioner dated 12.08.2008, the CBI was prohibited by the Ministry of Railways for not supplying any information. It has been stated in 5 paragraph 13 of the writ petition that the petitioner was supplied information by the CBI vide letter dated 08.06.2010 contained in Annexure-4 under the signature of Assistant Inspector General of Police (P), that information will not be supplied as disclosure of information is likely to endanger the safety of person who gave assistance in confidence for law enforcement. From paragraph 14 of the writ petition, it appears that the petitioner was made a complaint to the Under Secretary (AVD-II), Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training (respondent no.-6) alleging corrupt practices vide communication dated 22.03.2011 annexed as annexure-5. It is also stated in paragraph 15 that the Joint Director, Finance, Railways has communicated vide letter dated 02.05.2011 to the Lok Sabha Secretariat, Standing Committee on Railways that CBI’s investigation report has not yet been received in the Ministry vide communication annexed as annexure-6. It has also been stated at paragraph 16 that the petitioner has also been served letter 6 dated 09.05.2011 as contained in Annexure-7 under the signature of Additional Secretary and Ist Appellate Authority, Lok Sabha Secretariat that C.B.I. investigation report has not been received by the Ministry of Railways. It has been contended before us that the loss occurred to the Railways because of the changing of policy. The present Public Interest Litigation has been filed questioning the amended policy. Learned A.A.G.-1, Mr. Lalit Kishore took a preliminary objection basing on the averments made in the writ petition that the writ petition is itself not maintainable before this court on the ground of territorial jurisdiction in view of the fact that the entire proceedings have taken place at Delhi and it is the High Court of Delhi which has got the jurisdiction and as such a Public Interest Litigation is not maintainable before the jurisdiction of High Court at Patna. The learned counsel for the petitioner relying upon a judgment rendered by this Court in the case of Sushil Kumar Pandey vs. Union of India and Ors. reported in 2001 (4) PLJR 678 has submitted that the High Court of Judicature at Patna has got jurisdiction in the matter and the 7 contention of the learned A.A.G. has to be rejected basing on the said judgment. The learned A.A.G. in this regard has also relied upon paragraphs 5 and 6 of the judgment of the apex court rendered in the case of Oil and Natural Gas Commission vs. Utpal Kumar Basu and ors. reported in 1994 (4) SCC 711 followed by the judgment of the Apex Court rendered in the case of C.B.I. Anti-Corruption Branch, Mumbai vs. Narayan Diwakar reported in 1999 (4) SCC 656. He substantiated his contention saying that when the cause of action arose at Delhi the High Court of Judicature at Patna has no jurisdiction to entertain such application on the ground that no cause of action has arisen in Patna and the petitioner is not able to prove either by any of the documentary evidence or by oral submission that the cause of action arise within the territorial jurisdiction of the High Court at Patna. Heard both the parties. We had also an occasion to go through the judgment cited by the parties. The fact remains that the entire proceedings for calling out the tendering process and acceptance of 8 tenders was done at Delhi and only cause of action shown is to the effect that the petitioner received communication by the C.B.I. from the Ministry of Railways on 06.10.2008 which has been communicated to him at his address of FD/104, Daroga Praad Rai Path, Patna, Bihar is done aat Patna. From perusal of paragraph nos. 5 and 6 of the judgment cited by learned A.A.G. rendered in the case of Oil and Natural Gas Commission (supra), it appears that the Apex Court has held that under Article 226, the High Court can exercise the power to issue directions, orders and writs for enforcement of any of the rights. Paragraph nos. 5 and 6 of the said judgment is quoted herein below:- 5. Clause (1) of Article 226 begins with a non obstante clause- notwithstanding anything in Article 32-and provides that 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 of writs for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clause (2) of Article 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of 9 Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or 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. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition. 6. It is well settled that 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. In Chand Kour v. Partab Singh Lord Watson said: “ … the cause of action has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour”. 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 10 jurisdiction to entertain and decided 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. According to the petitioner the cause of action arose at Calcutta, but however the facts reveal that the advertisement itself indicates that the tenders should be furnished in EIL at New Delhi and it would be scrutinized at New Delhi itself and a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujrat and merely because NICCO read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta and sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. The learned A.A.G. submits that no cause of action arises within the territorial jurisdiction of High Court Judicature at Patna. It has been contended that from bundle of facts it appears that no cause of action arises at Patna and merely because the petitioner 11 received communication here it cannot be said that the cause of action arises at Patna and thereby the writ petition should be entertained by the High Court at Patna. The case reported in 1999 (4) SCC 656 is a case of a person who is an officer of the Indian Administrative Service and has been transferred from Daman to Arunachal Pradesh in March 1994. It is stated that prior to his transfer three First Information Reports were lodged with the Central Bureau of Investigation. A wireless message was sent by the Superintendent of Police, CBI, ACB, Bombay to the Chief Secretary, Arunachal Pradesh, Itanagar with a request to advise the respondent to meet one Inspector of Police, CBI, ACB, Bombay in connection with investigation. It was also stated in the message that the matter was most urgent. On being informed about the wireless message, the respondent filed the writ petition in the High Court of Guwahati with the prayer, inter alia, to quash the first information reports and for other consequential benefits. An objection was raised on behalf of the C.B.I. that the writ petition is not maintainable. A single Judge of the High Court 12 allowed the writ petition holding that the Court had jurisdiction to entertain the writ petition. The appeal filed by the C.B.I. before the Division Bench was dismissed. However, the C.B.I. taken up the matter up to the Apex Court. The Apex Court has held in the said judgment that the Guwahati High Court was clearly in error in deciding the question of jurisdiction in favour of the respondents. The writ petition filed by the respondent in the Guwahati High Court was not maintainable. It has also been observed at paragraph 7 of the judgment that the respondent has no objection if the impugned judgment is quashed leaving it open to him to approach the competent court for redressal of his grievance at an appropriate stage and sought for a direction if the first information reports and the proceedings started on the basis of the same are challenged by the observations and findings recorded in the impugned judgment of the Guwahati High Court. The counsel for the petitioner relied upon a judgment rendered in the case of Sushil Kumar Pandey (supra) to substantiate his contention that the High Court at Patna has jurisdiction. From the said judgment rendered 13 basing on 1994(4) SCC 711, we also had an occasion to go through the judgment rendered in the case of Sushil Kumar Pandey (supra) cited by learned counsel for the petitioner. It is a case where the dismissal of an employee has been questioned and this court has held that the delinquent was orally informed after the conclusion of summary court material at Battalik (J & K) that he has been dismissed from service and order of dismissal became effective at Battalik itself. Subsequent issuance of notice to the mother about the order of his dismissal is not an integral part of the cause of action giving jurisdiction to this Court to entertain and decide the matter. The relevant paragraph 7 of the said judgment is quoted hereinbelow:- “Cause of action means the bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. The law is well settled that to decide the question as to whether the cause of action has arisen within the territorial jurisdiction of a Court or not, the Court must take into consideration the fats asserted/pleaded in the plaint/petition. There could be no inquiry about the correctness or truth of the assertions made. The question has to be decided on the basis of the assertion without taking into consideration the other version pleaded by the opposite party. The question as to whether the cause of action or part of cause of action has arisen with a view to decide the 14 question of territorial jurisdiction of the Court, no fixed or abstract formula can be laid down. It depends upon the facts and circumstances of each case and the nature of grievance made.” Averments made in the affidavit in support of the petition would not reveal that any part of cause of action arose at Patna or any place at Bihar and in that view of the matter, we are of the opinion that the expression that ‘cause of action’ has taken up by the Apex Court in the case of Oil and Natural Gas Commission (supra) means the bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Reference in this contention has been made in the judgment with reference to cause of action in Chand Kour v. Partab Singh Lord Watson said:- “….the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.” Therefore, in determining the objection of lack of territorial jurisdiction the 15 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 HighCourt 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(supra). In view of the above facts the petitioner’s averments in support of maintainability of the writ petition would not reveal any bundle of facts which relates to cause of action at Patna and in absence of such facts which led to the cause of action, the writ petition cannot be entertained by this Court. We are in agreement with the contention raised by learned A.A.G., Mr. Lalit Kishore that the petitioner was not able to prove any facts which led to cause of action for filing of writ 16 petition before this court. We are of the opinion that the writ petition fails on the ground of territorial jurisdiction to entertain writ petition following the law laid down by the Apex Court in the case of Oil and Natural Gas Commission (supra) and in the case of C.B.I. Anti Corruption Branch, Mumbai (supra). Under the above circumstances, we dismiss the writ petition on the ground of lack of jurisdiction. Accordingly, the writ petition stands dismissed. A.F.R./ASHWINI (T. Meena Kumari, J) (Vikash Jain, J)