TMI Blog1999 (8) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... ions have come up before the Full Bench. 2. Brief facts in O.P. 11321 of 1995 are: The Petitioner therein while working as a Head Constable in the Central Industrial Security Force Unit at Bokkaro Steel Plant was issued a charge memo and after the conduct of a due enquiry was imposed a punishment of reduction in rank to the lower post of Naik till he was found fit by the competent authority to be restored to the higher post of Head Constable. This order was admittedly served on the Petitioner at Bokkaro. The Petitioner filed an appeal before the Deputy Inspector General, Central Industrial Security Force Unit, Bokkaro Steel Plant, Bokkaro. That appeal was dismissed by the Appellate Authority by order dated 4th March 1995. Copy of the order of the original authority imposing punishment on the Petitioner is marked as Ext. P-5 and the copy of the order of the Appellate Authority is marked as Ext. P-1 in the Original Petition. The order Ext. P-1 was served on the Petitioner while he was working as a Naik in the Central Industrial Security Force Unit at HNL, Kottayam. On receipt of the appellate order Ext. P-1 the Petitioner approached this Court with the Original Petition invoking t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Petition as to how the jurisdiction of this Court was attracted. Here also the question of jurisdiction was raised on behalf of the Respondents. 4. The question thus to be considered in these Original Petitions is whether on the facts stated above, this Court has jurisdiction to entertain the Original Petitions filed under Article 226 of the Constitution of India. 5. Article 226 of the Constitution of India prior to the 15th amendment did not give any indication regarding the territorial jurisdiction of the High Courts to entertain Writ Petitions under that Article. In Election Commission v. Saka Venkata Rao A.I.R. 1953 S.C. 210 the Supreme Court held that the High Court of Madras could not issue any writ under Article 226 of the Constitution to the Election Commission having its office permanently located at New Delhi. This view was reiterated by Their Lordships K.S. Rashid and son v. I.T.I. Commission A.I.R. 1954 S.C. 207 wherein Their Lordships held that: While Article 225 of the Constitution preserves to the existing High Courts the powers and jurisdictions which they had previously, Article 226 confers, on all the High Courts new and very wide powers in the matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its office is located there. So far as a Government is concerned it is within the territories only if its seat is within those territories. What Article 226 requires is residence or location as a fact and if therefore there is a seat from which the Government functions as a fact even though that seat is not mentioned in the Constitution the High Court within whose territories that seat is located will be the High Court having jurisdiction under Article 226 so far as the orders of the Government as such are concerned. The seat of the Government of India is in New Delhi and the Government as such is located in New Delhi. The absence of a provision in the Constitution can make no difference to this fact. Therefore, the view taken in A.I.R. 1953 S.C. 210 and A.I.R. 1954 S.C. 207 that there is two-fold limitation on the power of the High Court to issue writs etc. under Article 226, namely, (i) the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction', that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction, and (ii) the person or authority to whom the High Court is empowered to iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate authority in that proceeding in the High Court within the jurisdiction of which the original cause of action arose. In this situation the Law Commission recommended that an amendment to Article 226 of the Constitution was necessary to avoid undue hardship caused to the litigants. On the basis of the recommendation of the Law Commission by the 15th amendment to the Constitution Article (1A) was introduced in Article 226 of the Constitution. Article 1A provided that the power conferred by Clause (1) of Article 226 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 any such Government or authority or the residence of such person is not within those territories. Thus the concept of the arising of the cause of action wholly or in part to determine the territorial jurisdiction of the High Court under Article 226 of the Constitution was introduced. By the 42nd amendment far the Constitution Article (1A) introduced by the 15th amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided for the exercise of jurisdiction when a cause of action wholly or in part arose within the jurisdiction of a Court. Mulla in Code of Civil Procedure, 15th Edition Vol. 1 at page 251 has stated: 'A 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 bundle of facts which taken with the law applicable to them gives the Plaintiff a right to relief against the Defendant. It must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. The scope of the expression as understood in English law was recently summed up by Millet L.J. in the Court of Appeal in Paragon Finance v. D.B. Thakerar and Co. (1999) 1 All. E.R. 400 at 405 thus: The classic definition of a cause of action was given by Brett, J. in Cooke v. Gill (1873) L.R. 8 C.P. 107 at 116: 'Cause of action' has been held from the earliest time to mean every fact which is material to be pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rking within the territorial jurisdiction of this High Court and in O.P. 12019 of 1995, the transmission of the appeal to the Appellate Authority was while he was residing within the jurisdiction of this Court and the receipt of the order of the Appellate Authority was also at that place. The Petitioner had returned to his native place before the appeal was filed and was disposed of in the other case, after reverting him as a Naik the Petitioner had been transferred to this State and when he received the order of the Appellate Authority dismissing his appeal, he was working within the jurisdiction of this Court. The question is whether the factum of receipt of the Appellate orders by the Petitioners while they are within the territory of this High Court would enable the Petitioners to invoke the jurisdiction of this Court and whether that fact would confer jurisdiction on this Court to entertain the Original Petitions challenging the appellate orders passed by an authority located outside its jurisdiction. 9. The question that would arise for decision is whether the fact that the order of the appellate authority which by the application of doctrine of merger becomes the operativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt the petitions under Article 226 of the Constitution. The only submission made by the Respondents in support of jurisdiction was that the 1st Appellant in these appeals must be taken to have been functioning inside the Kerala State as well though his office is situate outside the State because his jurisdiction extended to areas within the Kerala State. If the first Appellant had done any act inside the Kerala State affecting persons functioning inside the State this Court would have had jurisdiction. There was no such act and his action had not affected anyone functioning within the State. Here, we are not able to spell out any such cause of action which had arisen inside the State. (Head notes) In a subsequent decision though reported earlier in M.G. George v. Assistant Director, S.I.B. 1976 K.L.T. 397 a learned Single Judge held: In this case the seat of the authority who issued the order is no within the territory over which this Court has jurisdiction. But then if the cause of action has arisen at least in part in this territory over which this Court has jurisdiction, then certainly the writ petition would be maintainable. One cannot say that the effect of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the latter State will also have jurisdiction as part of the cause of action arose therein. Two decisions of the Bombay High Court and the decision of the Madras High Court referred to in M.G. George's case 1976 K.L.T. 397 were also referred to. In addition the Division Bench also noticed the observations of the Calcutta High Court in Umasankar Chatterjee v. Union of India (1982) L.I.C. 1361 to the effect that: When an order of dismissal or removal from service is sent out, it is effective on the authority concerned, but so far as the Government servant is concerned, it becomes effective only when he is apprised of it either by oral communication or by actual service of it upon him. In P.P. Gopalan v. D.J.G. 1986 L.I.C. 980 a learned Single Judge after referring to the earlier decisions stated that when an appellate order is served on delinquent officer within the area of the jurisdiction of the Kerala High Court, Kerala High Court can issue a writ to quash the impugned proceedings. 11. In Raveendran v. D.I.G. of Police 1991 (2) K.L.T. 764 Anr. learned Judge of this Court relying on the decision of the Supreme Court in State of Rajasthan v. M/s. Swaika Propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That was a case where the disciplinary action was initiated in Ernakulam within the jurisdiction of the Kerala High Court and the Petitioners where the employees of the Respondent in Ernakulam. The action for which the disciplinary proceeding was taken also took place in Ernakulam. The enquiry was held in Ernakulam. The notices of demand were served based on the enquiry at Ernakulam and under such circumstances part of the cause of action arose within me jurisdiction of this Court. 12. What is seen from the conflict as reflected above is that the question for consideration would be whether the fact that a decision rendered by an authority located outside the jurisdiction of this Court is communicated to the party While he is within the jurisdiction of this Court is a fact in the bundle of facts constituting the cause of action. The view that the receipt of the copy of the order would constitute a fact giving rise to the cause of action is founded on the theory that an order becomes effective as regards the party when it is communicated to the party and since what he is aggrieved by is an effective order it has to be held that the receipt of communication would also be part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffered the Consequences outside the territory. 14. The other decision that has been relied on in support of the theory of service of the order also forming part of the cause of action is the decision of the Madras High Court in Veeri Chettiar v. S.T. Officer Bombay A.I.R. 1971 Mad. 155, Therein the Madras High Court held that cause of action is the bundle of facts enabling a party to maintain a legal proceeding. The impact on the addresses caused by a notice of the taxing authority and his proposal to assess relate to that bundle and is thus cause of action in part for the issue of a writ against the taxing authority. A writ petition will therefore lie in the High Court of the place of the addressee even if the authority is situate outside that High Court's territorial limits. Their Lordships did not refer to any precedent in support of their Conclusion. Along the same lines is the view expressed in M/s. Jeferce and Karim v. A.I.T.O. 1998 (2) K.L.T. 39 by a learned Single, Judge who said that an order of assessment comes into force only when it is communicated. Of course that was not a case relating to jurisdiction. 15. The decision of the Karnataka High Court in D.L. Sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land. The cause of action was a bundle of facts which taken with the law applicable to them gives the Plaintiff a right to relief against the Defendant. The notification issued by the Government of the State of Rajasthan under Section 52(1) of the Rajasthan 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 owner to plead the service of notice on him 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. 17. (sic)n Hindustan Sugars v. Union of India A.I.R. 1985 Cal 17 the Calcutta High Court declined jurisdiction by holding that when Respondents and the concerned authorities were outside the territorial limits of the jurisdiction of the Calcutta High Court the fact that the Petitioner was a sugar mill having its selling centre at Calcutta where from sugar was being sold, was not sufficient to confer jurisdiction on the Calcutta High Court to entertain a challenge against the circula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 226 of the Constitution. The Court observed that merely because the Petitioner before the High Court was a Calcutta based firm it could not institute proceedings in the Calcutta High Court in a case where a contract was executed at Aligarh, construction work was to be carried out at Aligarh and an Arbitrator was appointed at Aligarh and the contract provided that in the event of dispute the Aligarh Court alone would have jurisdiction. The Court also expressed its anguish at Courts really not having jurisdiction assuming jurisdiction. 18. Question had arisen whether the factum of issuance of a notice under Section 80 of, the Code of Civil Procedure preceding the institution of the suit could be a fact which constituted the bundle of facts giving rise to a cause of action. High Courts of Bombay, Madras, Calcutta, Madhya Pradesh, Punjab and Patna took the view that a notice under Section 80 of the Code of Civil Procedure is only a requirement as a preliminary step for a legal and valid institution of the, suit and that it does not really form or constitute part of the cause of action in the suit itself. After referring to this aspect and the concept of cause of action a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other circumstances which do not affect the cause of action. There may be several rights of action and one cause of action and rights may accrue at different times from the same cause. The above distinction was referred to by a Full Bench of the Allahabad High Court in Balbir Singh v. Atmaram A.I.R. 1977 All. 211. Their Lordships held that the terms 'cause of action' and 'right of action' are not synonymous and interchangeable. Right of action is a right to presently enforce a cause of action-a remedial right affording redress for the infringement of a legal right belonging to some definite person: a cause of action is the operative facts which give rise to such right of action. His Lordship Justice Padmanabhan in Raman Ittiathi v. Pappi Bhaskaran 1989 (2) K.L.J. 877 adopted the same approach and noticed the distinction between cause of action and right of action. In Dayasankar v. Chief of the Air Staff, New Delhi A.I.R. 1988 All. 36 a Division Bench of the Allahabad High Court held that a right of action is a right to enforce a cause of action. A person residing elsewhere in the country being aggrieved by an order of Government, Central or State or authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bundle of facts constituting the cause of action. At best receipt of the order or communication only gives the party a right of action based on the cause of action arising out of the action complained of. When that action complained of takes place outside the territorial jurisdiction of the High Court and an appeal there from is dismissed by an authority located outside the jurisdiction of the High Court cause of action wholly arises outside the jurisdiction of the High Court and Article 226(2) of the Constitution cannot be invoked to sustain a Writ Petition in this High Court on the basis that a part of the cause of action has arisen within the jurisdiction of this Court, merely because the appellate order communicated from the seat of the appellate authority was received while the Petitioner was residing or working within the jurisdiction of this Court. Acceptance of the argument that the situs of the receipt of the order will determine the jurisdiction can lead to a position where a litigant would be in a position to choose his own Court for the purpose of redressal of his grievance. All that he need do is to move over to a particular place for receiving the communication from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. Similarly, when an appeal is filed by him to an appellate authority who is outside the jurisdiction of this High Court and that appeal is dismissed by the appellate authority, the merger in the decision of the appellate authority takes place when the appeal is dismissed and not when the Appellant receives the order. What a writ Petitioner need plead as a part of his cause of action is the fact that his appeal was dismissed wholly or in part and not the fact that the order was communicated to him. That plea is relevant only to show when the right of station arose in his favour. The receipt of the order only gives him a right of action on the already accrued cause of action and enables him to meet a plea of laches or limitation raised in opposition. That the consequences of a proceeding in the larger sense are suffered by a person in his native place is not a ground to hold that the High Court within the jurisdiction of which the native place is situate is also competent to entertain a Writ Petition under Article 226 of the Constitution. When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native pla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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