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CHHOTU SINGH NARUKA v U.O.I. & ORS. - CW Case No. 3904 of 2005  RD-RJ 1412 (7 September 2005)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
Chhotu Singh Naruka v. Union of India & Ors.
S.B.CIVIL WRIT PETITION NO.3904/2005 under Article 226 of the
Constitution of India. 7th September, 2005
Date of Order :
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. P.S.Bhati, for the petitioner.
Mr. V.K.Mathur, for the respondents.
BY THE COURT :
The petitioner, a Hawaldar in Indian Army, faced a Summary General Court Martial being charged for violation of Sections 69 and 41(2) of the Army
The petitioner on 12/13.7.2001 being public servant as a clerk in 213 Transit Camp was in possession of cash amounting to Rs.1,93,615/-, sum disproportionate to his known source of income which he could not satisfactorily account for, as such he committed a civil offence i.e. to say a criminal misconduct contrary to Section 5(2) of the Prevention of Corruption Act, Samvat 2006 (1949 AD) (J & K). The petitioner was charged for violation of provisions of
Section 41(2) of the Army Act i.e. for disobeying a lawful command given by his superior officer on 17.7.2001 when he was asked by IC-54135P Major Upendra
Prasad, officer detailed to verify data from the old computer of Up Convoy Section to intimate the password of accessing the ibid computer he did not do so.
By an order dated 2.5.2005 passed by Summary
General Court Martial the petitioner for both the charges suffered sentence as under:-
(1)To be reduced to the ranks;
(2)To suffer rigorous imprisonment for one year; and
(3)To be dismissed from service.
The sentence awarded by Summary General Court
Martial stood confirmed by order dated 18.6.2005 passed by Commander, 71-Sub Area at Udhampur in State of Jammu & Kashmir. The Commander, 71-Sub Area while confirming sentence directed that the sentence of rigorous imprisonment shall be carried out by the confinement in civil prison. The petitioner, therefore, is lodged at Civil Jail, Jammu in State of
Jammu & Kashmir.
The instant petition is directed against the order passed by Summary General Court Martial dated 2.5.2005 and against the order dated 18.6.2005 confirming the sentence awarded. The petition is filed in the name of Shri Chhotu Singh through his wife Smt.
A reply to the petition is preferred on behalf of the respondents with a preliminary objection that as no cause or its part arose within territorial jurisdiction of this Court, therefore, the petition cannot be maintained before this Court. The factual foundation to substantiate the objection as stated in written reads as under:-
"Admittedly, the petitioner was posted in
Jammu & Kashmir, the incident which was the subject matter of the charges against the petitioner took place in Jammu & Kashmir, the officer who convened the Summary General
Court Martial of the petitioner was located in the State of Jammu & Kashmir, the petitioner was tried, convicted and sentenced in Jammu and Kashmir and in pursuance of which, the petitioner is undergoing the imprisonment in civil prison
Jammu. Therefore, it can safely be concluded that no part of cause of action partly or wholly had accrued within the territorial jurisdiction of this Hon'ble Court. It is, therefore, respectfully submitted that this
Hon'ble Court would not like to entertain this writ petition as the same is barred by the territorial jurisdiction of this Hon'ble
An additional affidavit has been filed sworn- in by Smt. Madan Kanwar, wife of the petitioner, stating therein that she and her husband Shri Chhotu
Singh Naruka (petitioner) are permanent resident of village Sowniya, Tehsil Bilara in District Jodhpur and she can effectively represent the case of her husband at Jodhpur. It is further stated that looking to poor economic situation there shall be serious impediments for her in contesting the case anywhere else from State of Rajasthan.
As the preliminary objection raised by the respondents relates to the jurisdiction of this Court to adjudicate the cause, the same required to be decided first, accordingly I heard counsel for the parties with regard to maintainability of present writ petition in view of preliminary objection referred above.
It is contended by counsel for the petitioner that the petitioner being permanent resident of village
Sowniya in District Jodhpur is entitled to maintain present writ petition before this Court in view of
Division Bench Judgment of this Court in the case of
Balu Singh v. Union of India & Ors. reported in 1996(1)
In the case of Balu Singh (supra) a Division
Bench of this Court held that whether any part of cause of action has accrued within the jurisdiction of a
Court would depend upon the facts and circumstances of the given case. In the case where the appellant was recruited in State of Rajasthan, pension, if possible, was to be paid in Rajasthan and the refusal to pay the pension was also communicated within the jurisdiction of the Court, then irrespective of the fact that the respondents do not reside within the jurisdiction of this Court, the writ petition can be entertained by this Court, as part of cause of action accrued here.
Counsel for the petitioner also placed reliance upon another Division Bench judgment of this
Court in the case of Mohan Singh v. Union of India &
Ors., reported in 2001(1) RLW Raj. 675. In the case of
Mohan Singh (supra) this Court reiterated the law laid down by Division Bench in the case of Balu Singh
(supra). While placing reliance upon the judgments referred above it is contended by counsel for the petitioner that the petitioner being permanent resident of State of Rajasthan and being recruited in State of
Rajasthan is entitled to maintain present writ petition before this Court. I do not find any force in the contention so made. By the force of clause (2) of
Article 226 of the Constitution of India the powers so conferred upon a High Court can be exercised by issuing a writ and appropriate directions to an authority situated outside the State if any cause of action or its part arose in State where the High Court is having territorial jurisdiction. However, no writ or direction can be issued by the High Court to an authority situated beyond its territorial jurisdiction if cause of action or its part has not arisen within territorial jurisdiction of that Court. The High Court before which the writ petition is filed is required to ascertain whether any part of cause of action has arisen within territorial limits of its jurisdiction and this depends upon the facts of each case. In the cases referred the petitioners were getting pension in State of Rajasthan and they were also refused for grant of pension in
State of Rajasthan, therefore, the Court reached at a specific conclusion that part of cause of action arose in State of Rajasthan, as such this Court was held to be vested with jurisdiction to adjudicate the issue involved in those matters. On the other hand, in present case no cause of action or its part arose in
State of Rajasthan. Merely on the count that the petitioner is permanent resident of State of Rajasthan this Court does not acquire territorial jurisdiction to adjudicate a cause which is otherwise not arisen within the territorial jurisdiction of this Court.
The other contention of counsel for the petitioner is that the Chief of Army Staff is party respondent to the proceedings and the Chief of Army
Staff can be sued anywhere in the country, therefore, this Court is having territorial jurisdiction to adjudicate the present writ petition. To substantiate the contention counsel for the petitioner has placed reliance upon the judgment of Hon'ble Supreme Court rendered in the case of Dinesh Chandra Gahtori v. Chief of Army Staff & Anr., reported in 2001(9) SCC 525, wherein Hon'ble Supreme Court observed as under:-
"The writ petition was filed in 1992. The impugned order was passed in 1999. This is a fact that the High Court should have taken into consideration. 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."
On the other hand, counsel for the respondents has stated that a cause of action is a bundle of facts which taken with the law applicable gives the petitioner a right to relief against the respondents, however, it must include some act done by the respondents. Since in absence of an act within the territory of the State of Rajasthan, no cause of action can possibly occur to be adjudicated by this
Court. He has further stated that the effect of the judgment of Hon'ble Supreme Court in the case of
Dinesh Chandra Gahtori (supra) was examined by Hon'ble
Allahabad High Court in the case of Sep/Dvt (MT) Phool
Chandra v. Union of India & Ors., reported in Mil LJ 2004 All 12, and held as under:-
"In view of the above analysis it is evident that the Supreme Court in Dinesh Chandra
Gahtori (supra) has not laid down any law of universal application. The observations have been made to meet a particular situation where the case remained pending for about a decade. Thus, the direction issued therein if considered in the light of other judgments referred to above does not seem to have a binding effect. The facts in the instant case are quite different and distinguishable. Even otherwise in case of dismissal from service, the Court is supposed not to sit over the decision of disciplinary inquiry." (para 40)
"There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court and if the court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the root of the jurisdiction. Such an issue can be raised even at a belated stage in execution. The finding of a Court or
Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of party cannot confer jurisdiction upon a court and an erroneous interpretation equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute."
Learned counsel for the respondents further placed reliance upon a Full Bench Judgment of Allahabad
High Court in the case of Rajendra Kumar Mishra v.
Union of India & Ors., reported in Mil LJ 2005 All 6.
In the case of Rajendra Kumar Mishra (supra) Full Bench of Hon'ble Allahabad High Court after carefully examining the judgment of Hon'ble Supreme Court in the case of Dinesh Chandra Gahtori (supra) held as under:-
"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 an 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.
It may be noted that the aforesaid observation in three judge decision of the
Supreme Court in Dinesh Chandra Gahtori's case (supra) is only a laconic observation and it cannot override larger Bench decisions of the Supreme Court.
In the present case it may be noted that the misconduct was committed at 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 our opinion merely because the petitioner is presently residing in Ballia this will not give jurisdiction to this Court in view of the Seven Judge Bench decision of the Supreme Court in Lt.Col.Khajoor Singh v.
Union of India, AIR 1961 SC 532."
I am in absolute agreement with the law laid down by Hon'ble Allahabad High Court in the case of
Phool Chandra (supra) and in the case of Rajendra
Kumar Mishra (supra). In order to understand and appreciate binding force of a decision the necessary requirement is to see what were the facts in the case in which the decision was given and also what was the point which had to be decided. No judgment can be read as a substitute to Statute.
Clause (2) of Article 226 of the Constitution extends jurisdiction of a High Court to issue writ or appropriate authority situated even beyond the territorial jurisdiction of that Court, if cause of action in whole or part arose within the jurisdictional territory of that Court and not otherwise.
In this settled position of law this Court is required to see the binding effect of the judgment given by Hon'ble Supreme Court in the case of Dinesh
Chandra Gahtori (supra). In the aforesaid case it appears that Hon'ble Supreme Court observed that Chief of Army Staff may be sued anywhere in the country, looking to the peculiar facts of that case. Hon'ble
Supreme Court in the case of Dinesh Chandra Gahtori
(supra) has not laid down any law of universal application and, therefore, the same is not having binding effect.
In the instant matter the petitioner was posted in the State of Jammu & Kashmir, where he faced
Summary General Court Martial and also suffered with sentence. The sentence also stood confirmed at Udhampur in the State of Jammu & Kashmir. The petitioner is in civil prison at Jammu facing rigorous imprisonment for committing a criminal misconduct under a local law of the State of Jammu & Kashmir. As such no cause of action arose in the matter within territory of this
In view of whatever discussed above, I am is of considered opinion that in present set of facts the respondents in present petition cannot be sued before this Court as no cause of action wholly or in part has arisen within territorial jurisdiction of this Court.
The writ petition, therefore, is not maintainable and the same is accordingly dismissed.
( GOVIND MATHUR ),J. kkm/ps.
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