Over 2 lakh Indian cases. Search powered by Google!

Case Details

N.13960370 ANK/NA B.K.S. YADAV versus CHIEF OF ARMY STAFF & OTHERS

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


N.13960370 Ank/Na B.K.S. Yadav v. Chief Of Army Staff & Others - WRIT - A No. 37116 of 1998 [2004] RD-AH 747 (9 September 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

CIVIL MISC. WRIT PETITION  NO.37116 OF 1998

No.13960370-ANK/NA B.K.S. Yadav     ------   Petitioner

                      Vs.

Chief of Army Staff and others    ---------------  Respondents

                      ------------------------------  

Hon'ble Tarun Agarwala, J.

The petitioner was enrolled in the Army Medical Corps and at the relevant moment of time was posted at Jodhpur where he was prosecuted and tried for accepting illegal gratification from one Karan Singh. The petitioner was tried by a summary Court Martial between the period 1.8.1998 to 5.8.1998, whereupon, he was found guilty and a punishment of rigorous imprisonment and dismissal from service was awarded. The petitioner thereafter, filed a petition under section 164[2] of the Army Act 1950, which was rejected by an order dated 27.1.2000 passed by the Chief of the Army Staff, New Delhi. The petitioner has now filed the present writ petition praying for the following reliefs :

"[I] to issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioner in Colour Service till he completed his minimum pensionable service ;

[II] to issue a writ, order or direction in the nature of certiorari summoning the records of his Summary Court Martial proceedings including all its connected documents and total result of the SCM proceedings, including the rejection order by the respondent no.1 dated 27.1.2000 and quash the same with all the consequential benefits to the petitioner."

A preliminary objection has been raised by the respondents that this Court does not have the territorial jurisdiction to hear the petition, inasmuch as no cause of action arose in the State of U.P. and therefore, no writ could be issued by this Court. It was contended that the petitioner was posted at Jodhpur, the incident occurred at Jodhpur and that the Court Martial proceedings were also conducted at Jodhpur and that the order of dismissal and punishment of rigorous imprisonment was passed at Jodhpur and that the copy of the order of dismissal as well as the entire proceedings of the Summary Court Martial were served upon the petitioner at Jodhpur and therefore, no cause of action or part of cause of action arose in the state of U.P.

Heard Colonel Ashok Kumar, the learned counsel for the petitioner and Sri Kamlesh Narain Pandey, the learned counsel for the respondents.

The learned counsel for the petitioner submitted that the order of dismissal and the proceedings of the Summary Court Martial was served upon the petitioner through his counsel at Allahabad and that the statutory petition under section 164 was transmitted from Allahabad to the respondents and therefore, a part of the cause of action arose in the State of U.P. As such, the petitioner was entitled to file a writ petition before this Court. The learned counsel further submitted that the Chief of the Army Staff could be sued anywhere in the country, as held by the Supreme Court and, therefore, this Court has the jurisdiction to decide the matter.

In order to consider as to whether this court has the territorial jurisdiction to decide this matter, it would be appropriate to consider the provisions of Article 226 of the Constitution of India which reads as under :

"226. Power of High Courts to issue certain writs-

[1] Notwithstanding anything in article 32 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 or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

[2] The power conferred by clause [1] 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 such Government or authority or the residence of such person is not within those territories."

From a perusal of the aforesaid provision, it is clear that where a cause of action accrues wholly or in part within the jurisdiction of the Court, the Court will have jurisdiction to decide the matter.

In Oil and Natural Gas Commission v. Utpal Kumar Basu and others, 1994[4] SCC-711, the Supreme Court held that the question as to whether the Court had a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition and that the necessary facts must form an integral part of the cause of action. The Supreme Court further held "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." And again held " 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." Similar view was again reiterated by the Supreme Court in Navinchandra N. Majithia v. State of Maharashtra, AIR 2000 SC 2966 in which it was held " 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."

Before dealing further, it would be appropriate to cull out the facts as disclosed in the pleadings. The petitioner was posted at Jodhpur and that the incident also occurred at Jodhpur. The Summary Court Martial proceedings were conducted at Jodhpur and that the order of punishment of rigorous imprisonment and dismissal from service was passed at Jodhpur. The petition under section 164 of the Army Act was rejected by the Chief of the Army Staff at New Delhi.

The bone of contention is that the order of dismissal and the proceedings of the Summary Court Martial was communicated to the petitioner through his counsel at Allahabad and therefore, a cause of action arose in the State of U.P. and the petitioner was therefore, entitled to file a writ petition at Allahabad. On the other hand, the respondents contended that the order of dismissal and punishment as well as the copies of the Summary Court Martial proceedings were communicated and handed over to the petitioner at Jodhpur itself. In order to decide this factual controversy, it is necessary to consider the pleadings of the parties.

In paragraph-3 of the counter affidavit of Captain I.P.S. Nanda, dated 16.3.99 it was stated that a copy of the complete Summary Court Martial proceedings was handed over to the petitioner on 5.8.1998. In paragraph-9 of the same counter affidavit it was stated that the documents namely, the Summary Court Martial proceedings was already supplied to the petitioner and in pursuance of the order of this court dated 26.10.98, the petitioner was again supplied a copy of the Summary Court Martial proceedings through his counsel. The petitioner has filed his rejoinder affidavit dated 19.4.99 sworn by Sri Gulab Singh and the contents of paragraph Nos.3 and 9 of the counter affidavit has not been denied by the petitioner in paragraph nos.3 and 9 of the rejoinder affidavit. The respondents have also filed a counter affidavit of Captain Kartikey Sharma dated 26.2.2003 to the supplementary affidavit accompanying the Amendment Application, wherein, in paragraph Nos. 2 and 7 of the said affidavit it has been contended that the complete copy of the Summary Court Martial proceedings was handed over to the petitioner on 5.8.98 and a receipt was also obtained from the petitioner. The petitioner has filed the rejoinder affidavit dated 12.5.2003 and paragraph nos.2 and 7 of the aforesaid counter affidavit has not been denied by the petitioner in paragraph Nos.2 and 7 of the rejoinder affidavit dated 12.5.2003.

In view of the aforesaid pleadings, it is clear that the copies of the Summary Court Martial proceedings including the order of punishment of rigorous imprisonment and the order of dismissal from the service was handed over to the petitioner at Jodhpur on 5.8.1998 and thereafter, in pursuance of a direction dated 26.10.98 given by this Court in Civil Misc.Writ Petition No.34022 of 1998 a duplicate copy of the Summary Court Martial proceedings was also served upon the petitioner through his counsel at Allahabad.

In view of the aforesaid, it is clear that the order of dismissal and punishment was served upon the petitioner at Jodhpur and therefore, the cause of action, if any, arose only at Jodhpur in the State of Rajasthan. Merely because a copy of the Summary Court Martial proceedings was also served upon the counsel for the petitioner at Allahabad would not give any cause of action or jurisdiction to challenge the order of dismissal at Allahabad, i.e., in the State of U.P.

In Oil and Natural Gas Commission v. Utpal Kumar Basu and others [supra] the Supreme Court held that the mere fact that the petitioner company had its registered office at Calcutta and had read an advertisement of ONGC in a Calcutta newspaper inviting tenders at Delhi for works to be executed in Gujarat and in response to that advertisement, the petitioner had sent its tender to the Delhi address from Calcutta and also made representation from Calcutta will not give any cause of action or part of cause of action to the petitioner  to file the writ petition within the territorial jurisdiction of Calcutta High Court. The Supreme Court held that the Calcutta High Court had no jurisdiction to entertain the writ petition.

The learned counsel for the petitioner has relied upon a decision of the Supreme Court in State of Punjab v. Amar Singh Harika, AIR 1966 SC1313 in which it was held that merely by passing the order of dismissal and keeping it in the file does not take effect unless it is communicated to the Officer concerned or is otherwise published. The submission of the learned counsel for the petitioner is that since the order of dismissal was served upon the counsel for the petitioner at Allahabad, therefore, the cause of action arose in the State of U.P.

In my view, the submission of the learned counsel for the petitioner is wholly misconceived and devoid of any merit. It is clear from the pleadings that the petitioner was served with the order of dismissal at Jodhpur in the State of Rajasthan. Merely because a second copy of the order of dismissal and the proceedings of the Summary Court Martial was served upon the counsel for the petitioner at Allahabad would not give the petitioner a cause of action to move and invoke the jurisdiction of this Court in the State of U.P.

In Lt. Col. [Mrs.] Saroj Mahanta v. Union of India and others,2003 [3] ACJ 2511 a Division Bench of this Court held "thus in view of the above we are of the considered opinion that in order to determine as to whether the writ Court has a jurisdiction to entertain a petition the pleadings in the petition have to be examined and opinion is to be formed as to whether a cause of action partly or fully has arisen or the respondents reside or have office within the territorial jurisdiction of the Court. In absence thereof if the view is taken that petition is to be entertained on merit without considering as to whether such pre-requisite conditions are there the provisions of clauses [1] and [2] of Article 226 of the Constitution would render nugatory."

The pleadings in the present petition clearly indicate that the order of dismissal was passed and served upon the petitioner at Jodhpur and, therefore, the cause of action arose only at Jodhpur.

In M/s Kusum Ingots & Alloys Ltd. v. Union of India and another, JT 2004 [suppl.1] SC 475, the petitioner had taken a loan from the Bhopal Branch of the State Bank of India. The bank issued a notice for the repayment of the loan under the provisions of Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act 2002. The petitioner challenged the vires of the Act by filing a writ petition before the Delhi High Court, which was dismissed on the ground of lack of territorial jurisdiction. The petitioner before the Supreme Court submitted that since the Act made by the Parliament and that the Parliament was located at New Delhi, therefore, the Delhi High Court had the requisite jurisdiction to entertain the writ petition. The Supreme Court held the writ petition questioning the constitutionality of a Parliamentary Act would not be maintainable in the Delhi High Court merely because the seat of the Union of India was in Delhi.

The learned counsel for the petitioner further submitted that the representation of the petitioner, under section 164 of the Army Act, was sent from Allahabad and therefore, the cause of action arose in the State of U.P. He further submitted that the order of the Chief of the Army Staff could be challenged in any part of the country and therefore, the writ petition filed before this Court was maintainable. In support of his submission, the learned counsel for the petitioner has relied upon a decision of the Supreme Court in Dinesh Chandra Gahotri v. Chief of the Army Staff, 2001[2] UPLBEC-1275 in which it was held "that the Chief of the Army Staff may be sued anywhere in the country."

The aforesaid decision has been considered by a Division Bench of this Court in Lieutenant Colonel [Mrs.] Saroj Mahanta v. Union of India and others [supra] in paragraph 50 of the judgment a Division Bench of this Court held -

"From the above it is evident that the Hon'ble Supreme Court in Dinesh Chandra Gahotri [supra] has not laid down any law of universal application. The observations have been made to meet a particular situation where the case remain 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."

Further, I find that the Supreme Court in Dinesh Chandra Gahotri judgment [supra] had held " that the Chief of the Army Staff may be sued anywhere in the country."

In my view, the word ''may' is only directory and is not mandatory nor does it give a right to the petitioner to sue the Chief of the Army Staff anywhere in the country according to his own choice, whims or caprice. The chief of the Army Staff can be sued anywhere in the country, provided the cause of action or a part of the cause of action arose in that State.

In the present case, the order of dismissal of the petitioner was passed at Jodhpur and was communicated and served upon him at Jodhpur. The order of the Chief of the Army Staff was passed at New Delhi and, therefore, no cause of action or part of cause of action arose in the State of U.P.

The contention of the learned counsel for the petitioner that he had made a representation from Allahabad and therefore, a part of cause of action arose at Allahabad is devoid of any merit. In Chabi Nath Rai v. Union of India and others, 1997[1] UPLBEC-236 a Division Bench of this Court held-

" The mere fact that he sent a representation from Allahabad and the decision on his representation was communicated at Allahabad did not give any cause of action at Allahabad.  In Special Appeal No.300 of 1995, Sipoy Ranchhor Singh v. Union of India and others, it was held that -- " merely because the delinquent served the sentence in district Jail, the cause of action does not arise at the place where he is serving the sentence, but it is the place where the person is tried, sentence and convicted. The Court declined to issue a writ of mandamus to decide the representation by the Chief of Army Staff at New Delhi."

The aforesaid judgment applies squarely to the present facts and circumstances of the case. In Daya Shanker Bhardwaj v. Chief of the Air Staff, New Delhi and others, AIR 1988 Allahabad 36, a Division Bench of this Court held-

" A right of action arises as soon as there is an invasion of right. But '' cause of action' and '' right of action'......are not synonymous or interchangeable. A right of action is the right to enforce a cause of action (American Jurisprudence 2nd Edition vol. I.) A person residing anywhere in the country being aggrieved by an order of government Central or State or authority or person may have a right of action at law but it can be enforced or the jurisdiction under Art. 226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. The cause of action arises by action of the government or authority and not by residence of the person aggrieved."

In Rakesh Dhar Tripathi v. Union of India, AIR 1998 Alld. 47 a Division Bench of this court held " that all the respondents were residing at New Delhi and that the cause of action arose in New Delhi, the mere fact that the petitioners residence is at Alld. Would not entitle him to file a writ petition at Allahabad. The court held that it did not have the territorial jurisdiction."

In Krishna Kumar Bhargava v. Metropolitan Magistrate Bombay, AIR 1986 ALJ 1093, a Division Bench of this Court held " that the High Court cannot exercise its powers under Article 226 of the Constitution of India, if the cause of action either wholly or in part has not arisen within it s territorial jurisdiction."

The learned counsel for the petitioner has relied upon a decision of a Full Bench in Om Prakash v. Divisional Superintendent, Northern Railway, AIR 1970 Alld. 440. In my view, this ruling is of no help to the petitioner. In the aforesaid case the controversy was whether Clause 1-A of Article 226 of the Constitution of India was retrospective in nature when incorporated in Article 226 of the Constitution. The Full Bench held " that the High Court could issue writs, orders or directions to any Government or authority notwithstanding that the seat of such Government or authority was not within the territorial jurisdiction of the High Court. The Full Bench further held that the territorial jurisdiction of the High Court is extended beyond the boundaries of the State, if the cause of action arises within its territory" . In the present case no cause of action arose in the State of U.P.

From the aforesaid, it is clear that an order of dismissal does not takes effect unless it is communicated and the cause of action arises at a place where it is communicated. If an order is passed under an appeal or on a representation and the order is confirmed, it does not give a fresh cause of action at the place where the order of the appellate authority is communicated or the mere fact that the order of the Chief of the Army Staff was communicated at Allahabad does not give a cause of action to the petitioner to file a petition at Allahabad. The order of the Chief of the Army Staff was only an intimation of an order passed on the appeal or the representation made by the petitioner at the place where he was residing or where he indicated his address for communication. The order passed by the Chief of the Army Staff does not give any cause of action to the petitioner to file a writ petition before this Court. The service of the communication of the order passed in the appeal does not give a cause of action to the petitioner.

Section 71 of the Army Act provides for punishment, which can be awarded by a Court Martial. Under section 74, an Officer can be sentenced to be cashiered before he is awarded any of the punishment  specified in Clause [a] to [c] of Section 71. Section 153 of the Act provides that no finding or sentence of a general district or summary general, Court Martial shall be valid except so far as it may be confirmed as provided by this Act. Under section 154 of the Act, the findings and sentence of a Court Martial is confirmed by the Central Government or by any Officer empowered in this behalf by the Central Governments. Under Section 164[1] of the Act any person who consider himself aggrieved by any order passed by any Court Martial may present a petition to the Officer or authority empowered to confirm any finding or sentence of such Court Martial and even after such confirmation under sub clause [I] of Section 164 of the Act, he may present a petition under sub clause [2] of section 164 of the Act.

The petitioner was tried by a Summary Court Martial at Jodhpur. He was found guilty of the charges and was sentenced to imprisonment and was also dismissed from the service. This order of imprisonment and dismissal from service was passed and communicated to the petitioner at Jodhpur. Subsequently, on the representation made by the petitioner through his counsel under section 164 [2] of the Act, the Chief of the Army Staff rejected the representation vide order dated 27.1.2004 at New Delhi.

In my view, the cause of action arose at the place where the order of dismissal from service or other penalties was served on the petitioner which is at Jodhpur in the State of Rajasthan and at the place where the appellate order was passed i.e. at New Delhi.

In view of the aforesaid, it is clear, that no cause of action or the part of cause of action arose in the State of U.P. and therefore, this Court does not have any territorial jurisdiction to decide the writ petition. Consequently, this writ petition is dismissed as not maintainable. In the circumstances of the case, there shall be no order as to costs.

Dt. Sept. 9, 2004

Ak/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.