I have the benefit of going through the judgment of my esteemed sister Hon'ble Mrs. Sunita Agarwal,J., and I am in respectful agreement with the same. However, in view of ...
Reserved
AFR
In Chamber
1. Case : WRIT A No. 2071 of 2017
Petitioner : Manish Kumar Mishra
Respondent : Union of India and 4 others
Counsel for Petitioner : Vijay Gautam, Vinod Kumar
Mishra
Counsel for Respondent : A.S.G.I., A.K. Mehrotra U.O.I.,
Purnendu Kumar Singh, Satish Kumar Rai
With
2. Case : WRIT A No. 2073 of 2017
Petitioner : Amarjeet Yadav
Respondent : Union of India and 4 others
Counsel for Petitioner : Vijay Gautam,Vinod Kumar
Mishra
Counsel for Respondent : A.S.G.I.,Nand.Lal U.O.I.,Satish
Kumar Rai
3. Case : WRIT A No. 2074 of 2017
Petitioner : Rabesh Singh
Respondent : Union of India and 4 others
Counsel for Petitioner : Vijay Gautam, Mohammad Fahad
Counsel for Respondent : A.S.G.I., J.J. Munir, U.O.I.
4. Case : WRIT A No. 2075 of 2017
Petitioner : Santosh Kumar
Respondent : Union of India and 4 others
Counsel for Petitioner : Vijay Gautam, Mohammad Fahad
Counsel for Respondent: A.S.G.I., Raghuraj Kishore
Mishra, U.O.I.
5. Case : WRIT A No. 5634 of 2011
Petitioner : Jitendra Kumar Nagar
Respondent : Union of India through Secretary
Department of Home Affairs and others
Counsel for Petitioner : Vijay Gautam, Harendran Singh
Bhati, Navin Kumar, Ram Surat Saroj
Counsel for Respondent : A. S. G. I., S.C., S.K. Om
6. Case : SPECIAL APPEAL No. 22 of 2019
Appellant : Chandra Pal Singh
Respondent : Union of India and 3 others
2
WritA No.2071 of 2017
Counsel for Appellant : Dileep Kumar Mishra
Counsel for Respondent : A.S.G.I., Krishna Mohan Misra,
Naresh Chandra Nishad, Rajesh Tripathi
And
7. Case : SPECIAL APPEAL No. 23 of 2019
Appellant : Sikandar Yadav
Respondent : Union of India and 4 others
Counsel for Appellant : Shesh Kumar Srivastava, Rajjan
Singh
Counsel for Respondent : A.S.G.I., Manoj Kumar Singh,
Manoj Kumar Singh
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Anjani Kumar Mishra,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
(Per : Dr. Yogendra Kumar Srivastava,J.)
1.I have the benefit of going through the judgment of my
esteemed sister Hon'ble Mrs. Sunita Agarwal,J., and I am in
respectful agreement with the same. However, in view of the
wide expanse and scope of the issue under consideration and
the varying interpretations arising therefrom, I am giving a
separate concurring judgment, as follows.
2.The reference before this Larger Bench has been
occasioned consequent to an order dated 25.01.2017, of a
learned Single Judge, expressing a view that there was a
conflict of opinion between the views expressed by the Full
Bench judgment of this Court in the case of Rajendra Kumar
Mishra Vs. Union of India and others
1
as also the judgment
rendered by a Division Bench of this Court in The Director
General, CRPF, New Delhi Vs. Constable No.850774845,
1. 2005 (1) UPLBEC 108
3
WritA No.2071 of 2017
Lalji Pandey
2
on one hand and the orders passed by the two
Division Benches of this Court in Bibhuti Narain Singh Vs.
Food Corporation of India and others
3
and the Har
Govind Singh Vs. Union of India and others
4
in the light of
the judgment of the Supreme Court in the case of Nawal
Kishore Sharma Vs. Union of India and others
5
.
3.The learned Judge has made the reference in the
following terms:
“Having considered the judgments and orders referred to
above, I am of the view that there is a conflict of opinion
between the Full Bench judgment of this Court in the case
of Rajendra Kumar Mishra (supra) and Constable Lalji
Pandey (supra) on one hand and the orders passed by the
two Division Benches of this Court in the case of Bibhuti
Narain Singh (supra) and Har Govind Singh (supra) in the
light of the judgment of the Supreme Court in the case of
Nawal Kishore Sharma (supra) and this dispute, therefore,
needs to be resolved by a larger Bench on the question with
regard as to whether the observations of the Supreme
Court in the case of Nawal Kishore Sharma (supra) in
paragraph 17 can be said to be a binding precedent on this
Court to entertain the above writ petitions or whether the
observations of paragraph 17 were in the peculiar facts and
circumstances of the case of Nawal Kishore Sharma (supra)
in view of paragraphs 18 and 19 of the said judgment.
OR
In the alternative whether the judgment of the Full Bench
in Rajendra Kumar Mishra (supra) and Constable Lalji
Pandey (supra) can be said to still lay down the correct law
in view of the judgment of the Supreme Court in Nawal
Kishore Sharma (supra).
Therefore, in my opinion this controversy needs to be
resolved by a larger Bench of this Court. Let the records of
these cases be placed before the Hon'ble Chief Justice for
constitution of a larger Bench to resolve the above conflict
in the several decisions of this Court.”
2. Special Appeal No.342 of 2010
3. Special Appeal Defective No. 785 of 2014
4. Special Appeal No.158 of 2016
5. (2014) 9 SCC 329
4
WritA No.2071 of 2017
4.In order to appreciate the background of the reference,
the judgments and the orders on the basis of which the
conflict of opinion has been noticed by the learned Single
Judge and the reference has been made, may be adverted to.
5.The question which was considered in the case of
Rajendra Kumar Mishra (supra) was as to whether this
Court had jurisdiction to decide the petition in question and
taking into consideration the facts of the case that the
petitioner while serving in the Indian Army and on duty at
Kanchanpara at Calcutta in West Bengal was given a charge
sheet and thereafter tried by the Summary Court Martial
where he was found guilty and awarded punishments, the
Full Bench expressed its view that the writ petition
challenging the order passed in the Court Martial
proceedings was not maintainable before this Court as no
part of the cause of action had arisen in the State of U.P.
6.In coming to the aforesaid conclusion the Full Bench
took note of the fact that the misconduct was committed at
Calcutta and Summary Court Martial was also held at
Calcutta therefore the entire cause of action had arisen at
Calcutta and merely for the reason that the petitioner was
thereafter residing at Ballia (in the State of U.P.) would not
give jurisdiction to the Court. Reliance in this regard was
placed upon the Constitution Bench judgments rendered by
the Supreme Court in Lt. Col. Khajoor Singh Vs. Union of
India
6
, K.S. Rashid and Son Vs. Income Tax Investigation
Commission
7
, and Election Commission, India Vs. Saka
6. AIR 1961 SC 532
7. AIR 1954 SC 207
5
WritA No.2071 of 2017
Venkata Subba Rao and others
8
, for the proposition 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 and that a writ cannot be issued
beyond the territorial jurisdiction of the High Court.
7.The Full Bench also referred to the judgments in Board
of Trustees for the Port of Calcutta Vs. Bombay Flour
Mills Pvt. Ltd.
9
, Aligarh Muslim University Vs. Vinay
Engineering Enterprises (P) Ltd.
10
and Oil and Natural
Gas Commission Vs. Utpal Kumar Basu
11
on the point that
the question as to whether the cause of action had arisen
within the territory of the particular Court would have to be
determined in each case on its own facts in the context of the
subject mater of the litigation and the relief claimed and
while 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 although
without embarking upon an enquiry as to the correctness or
otherwise of the said facts.
8.The contention sought to be raised by the petitioner,
referring to the judgment of the Supreme Court in Dinesh
Chandra Gahtori Vs. Chief of Army Staff
12
, that the Chief
of Army Staff may be sued anywhere in the country, was
repelled by placing reliance on the Constitution Bench
decisions in K.S. Rashid and Son Vs. Income Tax
8. AIR 1953 SC 210
9. AIR 1995 SC 577
10. (1994) 4 SCC 710
11. (1994) 4 SCC 711
12. (2001) 9 SCC 525
6
WritA No.2071 of 2017
Investigation Commission
7
and Election Commission Vs.
Saka Venkata Subba Rao and others
8
.
9.In order to fully appreciate the import of the Full
Bench judgment in the case of Rajendra Kumar Mishra, the
question which was taken up for consideration and the
opinion expressed by the Larger Bench, are being extracted
below:
“2. The short question in this case is whether this Court has
jurisdiction to decide this petition.”
x x x x x
“40. For the reasons given above we are of the opinion that
the Chief of Army Staff can only be sued either at Delhi
where he is located or at a place where the cause of action,
wholly or in part, arises.
41. We may mention that a "cause of action" is the bundle
of facts which, taken with the law applicable, gives the
plaintiff a right to relief against the defendant. However, it
must include some act done by the defendant, since in the
absence of an act, no cause of action can possibly occur.
(Vide Radhakrishnamurithy v. Chandrasekhara Rao, AIR
1966 A.P. 334; Ram Awalamb v. Jata Shankar, AIR 1969
All 526 (FB), and Salik Ram Adya Prasad v. Ram Lakhan
and others, AIR 1973 All. 107).
42. In the present case no part of the cause of action has
arisen in U.P. Hence in our opinion the writ petition is not
maintainable in this Court. It is accordingly dismissed. The
decision of the Division Bench in Kailash Nath Tiwari v.
Union of India, (2002) 1 UPLBEC 468 in our opinion does
not lay down the correct law and is overruled.”
10.In the aforesaid manner the question considered by the
Full Bench was whether the Court had jurisdiction to decide
the petition at hand and it expressed its view that since no
part of the cause of action in the case had arisen in the State
of Uttar Pradesh the writ petition was not maintainable
7. AIR 1954 SC 207
8. AIR 1953 SC 210
7
WritA No.2071 of 2017
before the Court.
11.In The Director General, CRPF, New Delhi Vs.
Constable No.850774845, Lalji Pandey
2
, the respondent,
who was a constable in the Central Reserve Police Force
posted at Hyderabad, had absented himself without leave,
and therefore the departmental proceedings were conducted
against him and an order of dismissal was passed. The
appeal and revision filed thereagainst were also rejected. The
orders of the dismissal as well as the appellate and revisional
orders were passed outside the territorial jurisdiction of this
Court. It was in the light of the aforesaid facts that the
Division Bench following the judgment of the Full Bench in
the case of Rajendra Kumar Mishra held that mere
communication of the orders at the residential address of the
respondent in district Bhadohi (in the State of U.P.) would
not confer territorial jurisdiction to this Court.
12.The contra views noticed in the referring order are the
judgment in the case of Bibhuti Narain Singh and the order
passed in the case of Har Govind Singh (supra).
13.In the case of Bibhuti Narain Singh, the departmental
proceedings were undertaken at a place beyond the
territorial jurisdiction of this Court but the order of penalty
was served upon the petitioner at Faizabad (in the State of
U.P.) where he was posted and in view thereof the Division
Bench was of the view that since the punishment order was
given effect to at Faizabad by withholding increments from
his salary to be drawn at Faizabad, the order of imposition of
2. Special Appeal No.342 of 2010
8
WritA No.2071 of 2017
penalty had infringed the right of the appellant to get full
salary at Faizabad, therefore, he had every legal right to
espouse his cause before the Court within whose jurisdiction
his place of posting was covered and in this regard, the
judgment of the Apex Court in the case of Nawal Kishore
Sharma (supra) was followed.
14.The facts of the case of Har Govind Singh Vs. Union
of India and others
4
were that the appellant had been
dismissed at Hyderabad and after his dismissal he came back
to his native place in Uttar Pradesh and preferred an appeal
to the statutory authority which was rejected and the order
of rejection was communicated to him within the State of
U.P., and in view of this, the Division Bench which was
hearing the special appeal against the decision of the learned
Single Judge dismissing the writ petition on the ground that
no fraction of the cause of action had arisen in the State of
U.P. so as to maintain the petition, expressed its view that in
the facts of the case a fraction of the transaction had taken
place in the State of U.P., therefore the petitioner had a
cause of action to maintain the petition, and even otherwise
after twelve years of filing of the petition in the year 2004,
the same could not have been dismissed on the ground of
want of territorial jurisdiction. The Division Bench
entertained the special appeal following the judgment of the
Supreme Court in Nawal Kishore Sharma (supra) and
directed the appeal to be listed for admission/disposal by
order dated 27.04.2016, which has been taken note of by the
learned Single Judge while making the reference.
4. Special Appeal No.158 of 2016
9
WritA No.2071 of 2017
15.It has been pointed out that the aforementioned special
appeal in the case of Har Govind Singh has been finally
decided in terms of the judgment dated 26.11.2019 whereby
the special appeal has been allowed following the judgment
in the case of Nawal Kishore Sharma (supra).
16.The judgment in the case of Nawal Kishore Sharma,
which has been followed in the two contra opinions, noticed
in the referring order was rendered in a case where the
appellant who was on offshore duty with the Shipping
Corporation of India was sent for medical treatment ashore
at Adani, Mundra Port and thereafter he was considered
permanently unfit for seaservice and an order was passed
cancelling the registration of the appellant as a seaman.
Copy of the letter was sent to the appellant at his native
place in Bihar where he was staying after he was found
medically unfit. The appellant is said to have sent a
representation from his home in the state of Bihar to the
respondent authorities claiming disability compensation
which was rejected and the order was sent to him at his
home address at Gaya, Bihar. In the facts of the case where
the appellant upon being declared permanently unfit forcing
him to stay at his native place in Bihar wherefrom he had
submitted representations with regard to disability
compensation which were entertained by the respondent and
disability thereafter was communicated to him at his home
address in Bihar, the Hon'ble Court held that considering all
the facts together, a part or fraction of cause of action arose
within the jurisdiction of the High Court where he received
the letter of refusal disentitling him from disability
10
WritA No.2071 of 2017
compensation.
17.Notice was also taken of the fact that after the writ
petition was filed at the Patna High Court the same was
entertained and a notice was issued. The respondents
appeared and participated in the proceedings before the
High Court and after hearing counsel appearing for both the
parties an interim order was passed directing the respondent
authorities to pay an amount which was to be subject to the
result of the writ petition and pursuant to the said interim
order the respondent authorities remitted the amount less
deduction of the TDS to the bank account of the appellant.
However, when the writ petition was taken up for hearing,
the High Court took the view that no cause of action not even
a fraction of cause of action had arisen within its territorial
jurisdiction.
18.Considering the aforementioned facts that when the
writ petition was heard for the purposes of grant of interim
relief no objections were raised by the respondents with
regard to the territorial jurisdiction, the order passed by the
High Court dismissing the writ petition on the ground that
not even a fraction of cause of action had arisen within its
territorial jurisdiction, was held to be unsustainable.
19.After discussing the legal position on the point, the
Supreme Court in the case of Nawal Kishore Sharma, held
as follows:
“16. Regard being had to the discussion made hereinabove,
there cannot be any doubt that the question whether or not
cause of action wholly or in part for filing a writ petition
has arisen within the territorial limit of any High Court has
11
WritA No.2071 of 2017
to be decided in the light of the nature and character of the
proceedings under Article 226 of the Constitution. In order
to maintain a writ petition, the petitioner has to establish
that a legal right claimed by him has been infringed by the
respondents within the territorial limit of the Court’s
jurisdiction.
17. We have perused the facts pleaded in the writ petition
and the documents relied upon by the appellant.
Indisputably, the appellant reported sickness on account of
various ailments including difficulty in breathing. He was
referred to hospital. Consequently, he was signed off for
further medical treatment. Finally, the respondent
permanently declared the appellant unfit for sea service
due to dilated cardiomyopathy (heart muscles disease). As
a result, the Shipping Department of the Government of
India issued an order on 12.4.2011 cancelling the
registration of the appellant as a seaman. A copy of the
letter was sent to the appellant at his native place in Bihar
where he was staying after he was found medically unfit. It
further appears that the appellant sent a representation
from his home in the State of Bihar to the respondent
claiming disability compensation. The said representation
was replied by the respondent, which was addressed to him
on his home address in Gaya, Bihar rejecting his claim for
disability compensation. It is further evident that when the
appellant was signed off and declared medically unfit, he
returned back to his home in the District of Gaya, Bihar
and, thereafter, he made all claims and filed representation
from his home address at Gaya and those letters and
representations were entertained by the respondents and
replied and a decision on those representations were
communicated to him on his home address in Bihar.
Admittedly, the appellant was suffering from serious heart
muscles disease (Dilated Cardiomyopathy) and breathing
problem which forced him to stay in native place,
wherefrom he had been making all correspondence with
regard to his disability compensation. Prima facie,
therefore, considering all the facts together, a part or
fraction of cause of action arose within the jurisdiction of
the Patna High Court where he received a letter of refusal
disentitling him from disability compensation.
18. Apart from that, from the counter affidavit of the
respondents and the documents annexed therewith, it
reveals that after the writ petition was filed in the Patna
High Court, the same was entertained and notices were
issued. Pursuant to the said notice, the respondents
12
WritA No.2071 of 2017
appeared and participated in the proceedings in the High
Court. It further reveals that after hearing the counsel
appearing for both the parties, the High Court passed an
interim order on 18.9.2012 directing the authorities of
Shipping Corporation of India to pay at least a sum of
Rs.2.75 lakhs, which shall be subject to the result of the
writ petition. Pursuant to the interim order, the respondent
Shipping Corporation of India remitted Rs.2,67,270/ (after
deduction of income tax) to the bank account of the
appellant. However, when the writ petition was taken up
for hearing, the High Court took the view that no cause of
action, not even a fraction of cause of action, has arisen
within its territorial jurisdiction.
19. Considering the entire facts of the case narrated
hereinbefore including the interim order passed by the
High Court, in our considered opinion, the writ petition
ought not to have been dismissed for want of territorial
jurisdiction. As noticed above, at the time when the writ
petition was heard for the purpose of grant of interim
relief, the respondents instead of raising any objection with
regard to territorial jurisdiction opposed the prayer on the
ground that the appellatewrit petitioner was offered an
amount of Rs.2.75 lakhs, but he refused to accept the same
and challenged the order granting severance compensation
by filing the writ petition. The impugned order, therefore,
cannot be sustained in the peculiar facts and circumstances
of this case.
20. In the aforesaid, the appeal is allowed and the
impugned order passed by the High Court is set aside and
the matter is remitted to the High Court for deciding the
writ petition on merits.”
20.As noticed earlier the question considered by the Full
Bench in the case of Rajendra Kumar Mishra was as to
whether this Court had jurisdiction to decide the said
petition and taking into consideration the facts of the case at
hand the said question was answered by stating that since in
the said case no part of the cause of action had arisen in the
State of Uttar Pradesh therefore the writ petition was not
maintainable before this Court and the same was accordingly
dismissed.
13
WritA No.2071 of 2017
21.The judgment in the case of Constable Lalji Pandey
rendered by a Division Bench of this Court was also based on
the facts of the case and taking in view that the order of
dismissal and the revisional order had been passed outside
the territorial limits of the State of U.P. it was held that mere
communication of the orders at the residence of the
petitioner would not confer any jurisdiction on this Court.
22.The Larger Bench in the case of Rajendra Kumar
Mishra after referring to the case law on the point had held
that the question as to whether the cause of action had
arisen within the territory of the particular Court would have
to be determined in each case on its own facts in the context
of the subject matter of the litigation and the relief claimed.
23.The Supreme Court in the case of Nawal Kishore
Sharma reiterated the parameters for invocation of the
jurisdiction of the High Court under Article 226 against an
authority/person residing outside the territorial jurisdiction
of the High Court by holding that cause of action if wholly or
in part arose within territorial jurisdiction of High Court or
not is to be determined in the light of nature and character
of proceedings and that the High Court can issue a writ if
cause of action wholly or partially arises within its territorial
jurisdiction even if person or authority against whom writ is
issued is located outside the territorial jurisdiction. It was,
however, also stated that in order to maintain a petition the
petitioner had to establish that his legal right had been
infringed by the respondents within territorial limit of the
High Court's jurisdiction.
14
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24.On the facts of the case, where the appellant upon
being declared permanently unfit for seaservice due to
dilated cardiomyopathy which forced him to stay in his
native place in Bihar wherefrom he had been making all
correspondence with regard to his disability compensation
stated to be due from the respondentemployer and all
replies including rejection of the claim for disability pension
having been addressed to him at his address in Bihar and
further the respondents having participated in the writ
proceedings without raising objection as to territorial
jurisdiction, it was held that part or fraction of cause of
action did arise within the jurisdiction of the High Court
where the appellant received a letter of refusal disentitling
him from the disability pension.
25.There does not seem to be any apparent conflict of
opinion between the judgment rendered by the Full Bench of
this Court in the case of Rajendra Kumar Mishra and that
of the Supreme Court in the case of Nawal Kishore Sharma.
In both the judgments it has been held that the question as
to whether cause of action wholly or in part had arisen
within the territorial jurisdiction of a High Court would have
to be determined in each case on its own facts and in the
light of the nature and character of proceedings under
Article 226.
26.Having said so, since the question of territorial
jurisdiction is coming up before this Court in a fairly large
number of matters, as has been pointed out by the counsel
for the parties, it would be worthwhile to clarify the position
15
WritA No.2071 of 2017
and restate the law on the point.
27.Article 226 confers extraordinary jurisdiction on the
High Court to issue prerogative writs for enforcement of
fundamental rights or for any other purpose. The
jurisdiction, though is to be based on discretion and
equitable considerations, is wide and expansive with no
fetters having been placed on the exercise of this
extraordinary jurisdiction. The provision as it originally
stood, 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 or
the enforcement of any of the rights conferred by Part III
and for any other purpose.
(2) The power conferred on a High Court by clause (1)
shall not be in derogation of the power conferred on the
Supreme Court by clause (2) of Article 32.”
28.The object of the makers of our Constitution in
adopting Article 226 was to confer wide powers on the High
Courts in issuing directions or writs for the enforcement of
fundamental rights and power to issue directions for any
other purpose. The observations made in the case of
Election Commission, India Vs. Saka Venkata Subba Rao
and others
8
, may be referred to in this regard:
“6. ...In that situation, the makers of the Constitution,
having decided to provide for certain basic safeguards for
the people in the new set up, which they called
fundamental rights, evidently thought it necessary to
8. AIR 1953 SC 210
16
WritA No.2071 of 2017
provide also a quick and inexpensive remedy for the
enforcement of such rights and, finding that the
prerogative writs, which the Courts in England had
developed and used whenever urgent necessity demanded
immediate and decisive interposition, were peculiarly
suited for the purpose, they conferred, in the States' sphere,
new and wide powers on the High Courts of issuing
directions, orders, or writs primarily for the enforcement of
fundamental rights, the power to issue such directions, etc.
“for any other purpose” being also included with a view
apparently to place all the High Courts in this country in
somewhat the same position as the Court of King's Bench in
England...”
29.The amplitude of the powers under Article 226 which
enables the High Court to reach injustice wherever it is
found has been explained in Dwarka Nath Vs. Income Tax
Officer, Special Circle DWard, Kanpur and another
13
, as
under:
“4. …This article is couched in comprehensive phraseology
and it ex facie confers a wide power on the High Courts to
reach injustice wherever it is found. The Constitution
designedly used a wide language in describing the nature
of the power, the purpose for which and the person or
authority against whom it can be exercised. It can issue
writs in the nature of prerogative writs as understood in
England; but the scope of those writs also is widened by the
use of the expression "nature", for the said expression does
not equate the writs that can be issued in India with those
in England, but only draws an analogy from them. That
apart, High Courts can also issue directions, orders or writs
other than the prerogative writs.
It enables the High Courts to mould the reliefs to meet the
peculiar and complicated requirements of this country. Any
attempt to equate the scope of the power of the High Court
under Art. 226 of the Constitution with that of the English
Courts to issue prerogative writs is to introduce the
unnecessary procedural restrictions grown over the years in
a comparatively small country like England with a unitary
form of Government to a vast country like India functioning
under a federal structure. Such a construction defeats the
purpose of the article itself. To say this is not to say that the
13. AIR 1966 SC 81
17
WritA No.2071 of 2017
High Courts can function arbitrarily under this Article.
Some limitations are implicit in the article and others may
be evolved to direct the article through defined channels...”
30.The jurisdiction conferred on the High Courts under
Article 226, as it originally stood from its very inception, was
very wide with only two limitations placed upon the exercise
of these powers: (i) that the power is to be exercised
throughout the territories in relation to which it exercises
jurisdiction, i.e., the writs issued by the Court cannot run
beyond the territories subject to its jurisdiction; (ii) that the
person or authority to whom the High Court is empowered
to issue the writs must be within those territories, and as an
implication they must be amenable to the jurisdiction of the
Court either by residence or location within those territories.
31.The aforesaid provision and the power of the High
Court to issue writs in the context of its territorial
jurisdiction came up before a Constitution Bench of the
Supreme Court in the case of Saka Venkata Subba Rao
(supra) where an appeal had been filed from an order
passed by the High Court of Madras issuing a writ of
prohibition restraining the Election Commission, a statutory
authority constituted by the President having its offices
permanently located at New Delhi, from enquiring into the
alleged disqualification of the respondent for membership of
the Madras Legislative Assembly. Reversing the decision of
the High Court of Madras, the Supreme Court repelled the
proposition that the location of the subject matter or the
cause of action or the parties within the territorial limits of
the High Court's jurisdiction was sufficient to vest the High
18
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Court with the substance of jurisdiction to issue prerogative
writs to an authority even though such authority was located
outside its jurisdiction. Patanjali Sastri, C.J., speaking for
the Court, made the following observations:
“6. Turning now to the question as to the powers of a High
Court under article 226, it will be noticed that article 225
continues to the existing High Courts the same jurisdiction
and powers as they possessed immediately before the
commencement of the Constitution. Though there had been
some conflict of judicial opinion on the point, it was
authoritatively decided by the Privy Council in the
Parlakimedi case (70 I.A. 129), that the High Court of
Madras the High Courts of Bombay and Calcutta were in
the same position had no power to issue what were
known as high prerogative writs beyond the local limits of
its original civil jurisdiction, and the power to issue such
writs within those limits was derived by the Court as
successor of the Supreme Court which had been exercising
jurisdiction over the Presidency Town of Madras and was
replaced by the High Court established in pursuance of the
Charter Act of 1861. The other High Courts in India had no
power to issue such writs at all...”
32.Referring to the origin of the writs, as pointed out by
Prof. Holdsworth in History of English Law
14
, the
Constitution Bench held that such limitation was a logical
consequence of the origin and development of the power to
issue prerogative writs as a special remedy. The observations
made in this regard are as follows:
“7. Such limitation is indeed a logical consequence of the
origin and development of the power to issue prerogative
writs as a special remedy in England. Such power formed
no part of the original or the appellate jurisdiction of the
Court of King's Bench. As pointed out by Prof. Holdsworth
(History of English Law, Vol. I, p. 212 et seq) these writs had
their origin in the exercise of the King's prerogative power
of superintendence over the due observance of the law by
his officials and tribunals, and were issued by the Court of
King's Bench — habeas corpus, that the King may know
14. History of English Law, Vol. I, p. 212 by Prof. Holdsworth
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whether his subjects were lawfully imprisoned or not;
certiorari, that he may know whether any proceedings
commenced against them are conformable to the law;
mandamus, to ensure that his officials did such acts as they
were bound to do under the law, and prohibition, to oblige
the inferior tribunals in his realm to function within the
limits of their respective jurisdiction. See also the
introductory remarks in the judgment in the Parlakimedi
case 70 I.A. 129. These writs were thus specifically directed
to the persons or authorities against whom redress was
sought and were made returnable in the court issuing them
and, in case of disobedience, were enforceable by
attachment for contempt. These characteristics of the
special form of remedy rendered it necessary for its
effective use that the persons or authorities to whom the
Court was asked to issue these writs should be within the
limits of its territorial jurisdiction. We are unable to agree
with the learned Judge below that if a tribunal or authority
permanently located and normally carrying on its activities
elsewhere exercises jurisdiction within those territorial
limits so as to affect the rights of parties therein, such
tribunal or authority must be regarded as "functioning"
within the territorial limits of the High Court and being
therefore amenable to its jurisdiction under article 226.”
33.Regarding the “cause of action” in the context of the
power to issue writs under Article 226, it was stated thus:
“8. ...The rule that cause of action attracts jurisdiction
in suits is based on statutory enactment and cannot
apply to writs issuable under article 226 which makes
no reference to any cause of action or where it arises
but insists on the presence of the person or authority
"within the territories" in relation to which the High
Court exercises jurisdiction...”
34.Taking a similar view another Constitution Bench in
K.S. Rashid and Son Vs. Income Tax Investigation
Commission
7
held that a writ Court cannot exercise its
power under Article 226 beyond its territorial jurisdiction.
35.The question with regard to territorial jurisdiction
7. AIR 1954 SC 207
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again arose in Lt. Col. Khajoor Singh Vs. Union of India
6
,
which was a case where the petitioner, who was serving in
the Jammu & Kashmir State Forces, was served with an
order passed by the Government of India prematurely
retiring him from service and the said order was challenged
before the High Court of Jammu and Kashmir. A preliminary
objection being raised by the Union of India that since the
authority against which the writ was sought was outside the
territorial jurisdiction of the High Court the petition was not
maintainable, the High Court dismissed the petition relying
upon the earlier Constitution Bench judgments in the cases
of Saka Venkata Subba Rao and K.S. Rashid. The High
Court, however, granted certificate under Article 132 of the
Constitution whereupon the matter came up for hearing
before a Bench of five Judges of the Supreme Court and
during the course of hearing the appellant not only tried to
distinguish the previous judgments of the Supreme Court but
also tried to question their correctness and in view thereof
the matter was placed before a Larger Bench of seven
Judges.
36.The majority judgment in the case of Khajoor Singh
rendered by B.P. Sinha,C.J., reaffirmed and approved the
earlier view taken by the Constitution Bench judgments in
Saka Venkata Subba Rao and K.S. Rashid (supra) and it
was held that the petition filed at the High Court of Jammu
and Kashmir was not maintainable. The two questions
considered in the majority judgment, are as follows:
“11. The two main questions which arise, therefore, are :
6. AIR 1961 SC 532
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(i) whether the Government of India as such can be said to
have a location in a particular place, viz., New Delhi,
irrespective of the fact that its authority extends over all the
States and its officers function throughout India, and (ii)
whether there is any scope for introducing the concept of
cause of action as the basis of exercise of jurisdiction under
Art. 226. Before, however, we deal with these two main
questions, we would like to clear the ground with respect
to two subsidiary matters which have been urged on behalf
of the appellant.”
37.The majority judgment thereafter proceeded to observe
as follows:
“12. The first argument is that the word "authority" used in
Art. 226 cannot and does not include Government. We are
not impressed by this argument. In interpreting the word
"authority" we must have regard to the clause immediately
following it. Art. 226 provides for "the issue to any person
or authority including in appropriate cases any
Government" within those territories. It is clear that the
clause "including inappropriate cases any Government"
goes with the preceding word "authority", and on a plain
and reasonable construction it means that the word
"authority" in the context may include any Government in
an appropriate case. The suggestion that the said clause is
intended to confer discretion on the High Courts in the
matter of issuing a writ or direction on any Government
seems to us clearly unsustainable. To connect this clause
with the issuance of a writ or order and to suggest that in
dealing with cases against Government the High Court has
to decide whether the case is appropriate for the issue of
the order is plainly not justified by the rules of grammar.
We have no hesitation in holding that the said clause goes
with the word "authority" and that its effect is that the
authority against whom jurisdiction is conferred on the
High Court to issue a writ or appropriate order may in
certain cases include a Government. Appropriate cases in
the context means cases in which orders passed by a
Government or their subordinates are challenged, and the
clause therefore means that where such orders are
challenged the High Court may issue a writ against the
Government. The position, therefore, is that under Art. 226
power is conferred on the High Court to issue to any person
or authority or in a given case to any Government, writs or
orders there specified for enforcement of any of the rights
22
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conferred by Part III and for any other purpose. Having
thus dealt with the two subsidiary points raised before us,
we may now proceed to consider the two main contentions
which arise for our decision in the present appeal.”
38.In respect of the first question, it was stated thus:
“13. This brings us to the first question, namely, whether
the Government of India as such can be said to be located
at one place, namely, New Delhi. The main argument in
this connection is that the Government of India is all
pervasive and is functioning throughout the territory of
India and therefore every High Court has power to issue a
writ against it, as it must be presumed to be located within
the territorial jurisdiction of all State High Courts. This
argument in our opinion confuses the concept of location of
a Government with the concept of its functioning. A
Government may be functioning all over a State or all over
India; but it certainly is not located all over the State or all
over India. It is true that the Constitution has not provided
that the seat of the Government of India will be at New
Delhi. That, however, does not mean that the Government
of India as such has no seat where it is located. It is
common knowledge that 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. What we
have to see, therefore, is whether the words of Art. 226
mean that the person or authority to whom a writ is to be
issued has to be resident in or located within the territories
of the High Court issuing the writ? The relevant words of
Art. 226 are these—
"Every High Court shall have power... to issue to any
person or authority... within those territories..."
So far as a natural person is concerned, there can be no
doubt that he can be within those territories only if he
resides therein either permanently or temporarily. So far as
an authority is concerned, there can be no doubt that if its
office is located therein it must be within the territory. But
do these words mean with respect to an authority that even
though its office is not located within those territories it
will be within those territories because its order may affect
persons living in those territories? Now it is clear that the
jurisdiction conferred on the High Court by Art. 226 does
not depend upon the residence or location of the person
applying to it for relief; it depends only on the person or
23
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authority against whom a writ is sought being within those
territories. It seems to us therefore that it is not permissible
to read in Art. 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 the Bombay 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
Art. 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 Art. 226. The
introduction of such a concept may give rise to confusion
and conflict of jurisdictions. Take, for example, the case of
an order passed by an authority in Calcutta, which affects
six brothers living, say, in Bombay, Madras, Allahabad,
Jabalpur, Jodhpur and Chandigarh. The order passed by
the authority in Calcutta has thus affected persons in six
States. Can it be said that Art. 226 contemplates that all the
six High Courts have jurisdiction in the matter of giving
relief under it? The answer must obviously be 'No', if one is
to avoid confusion and conflict of jurisdiction. As we read
the relevant words of Art. 226 (quoted above) there can be
no doubt that the jurisdiction conferred by that Article on a
High Court is with respect to the location or residence of
the person or authority passing the order and there can be
no question of introducing the concept of the place where
the order is to have effect in order to determine which High
Court can give relief under it. It is true that this Court will
give such meaning to the words used in the Constitution as
would help towards its working smoothly. If we were to
introduce in Art. 226 the concept of the place where the
order is to have effect we would not be advancing the
purposes for which Art. 226 has been enacted. On the other
hand, we would be producing conflict of jurisdiction
between various High Courts as already shown by the
illustration given above. Therefore, the effect of an order by
whomsoever it is passed can have no relevance in
determining the jurisdiction of the High Court which can
take action under Art. 226. Now, functioning of a
Government is really nothing other than giving effect to the
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orders passed by it. Therefore it would not be right to
introduce in Art. 226 the concept of the functioning of
Government when determining the meaning of the words
"any person or authority within those territories". By
introducing the concept of functioning in these words we
shall be creating the same conflict which would arise if the
concept of the place where the order is to have effect is
introduced in Art. 226. There can, therefore, be no escape
from the conclusion that these words in Art. 226 refer not
to the place where the Government may be functioning but
only to the place where the person or authority is either
resident or is located. So far therefore as a natural person is
concerned, he is within those territories if he resides there
permanently or temporarily. So far as an authority (other
than a Government) is concerned, it is within the territories
if 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.”
39.The first question was answered by the Supreme Court
in the following manner:
“14. The seat of a Government is sometimes mentioned in
the Constitutions of various countries but many a time the
seat is not so mentioned. But whether the seat of a
Government is mentioned in the Constitution or not, there
is undoubtedly a seat from which the Government as such
functions as a fact. What Art. 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 Art. 226 so far as the orders of
the Government as such are concerned. Therefore, the view
taken in Election Commission, India v. Saka Venkata Subba
Rao (AIR 1953 SC 210) and K.S. Rashid and Son v. The
Income Tax Investigation Commission (AIR 1954 SC 207)
that there is twofold limitation on the power of the High
Court to issue writs etc. under Art. 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 issue such writs
must be "within those territories" which clearly implies that
they must be amenable to its jurisdiction either by
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residence or location within those territories, is the correct
one.”
40.In respect of the second question which was with
regard to the cause of action, it was observed as follows:
“15. This brings us to the second point, namely, whether it
is possible to introduce the concept of cause of action in
Art. 226 so that the High Court in whose jurisdiction the
cause of action arose would be the proper one to pass an
order thereunder. Reliance in this connection has been
placed on the judgment of the Privy Council in Ryots of
Garabandho v. Zamindar of Parlakimedi (70 Ind App 129 :
AIR 1943 PC 164). In that case the Privy Council held that
even though the impugned order was passed by the Board
of Revenue which was located in Madras the High Court
would have no jurisdiction to issue a writ quashing that
order, as it had no jurisdiction to issue a writ beyond the
limits of the city of Madras except in certain cases, and that
particular matter was not within the exceptions. This
decision of the Privy Council does apparently introduce an
element of the place where the cause of action arose in
considering the jurisdiction of the High Court, to issue a
writ. The basis of that decision, however, was the peculiar
history of the issue of writs by the three Presidency High
Courts as successors of the Supreme Courts, though on the
literal construction of clause 8 of the Charter of 1800
conferring jurisdiction on the Supreme Court of Madras,
there could be little doubt that the Supreme Court would
have the same jurisdiction as the Justices of the Court of
King's Bench Division in England for the territories which
then were or thereafter might be subject to or depend upon
the Government of Madras. It will therefore not be correct
to put too much stress on the decision in that case. The
question whether the concept of cause of action could be
introduced in Art. 226 was also considered in Saka Venkata
Subba Rao's case, 1953 SCR 1144 and was repelled in these
words:
"The rule that cause of action attracts jurisdiction in
suits is based on statutory enactment and cannot
apply to writs issuable under Art. 226 which makes
no reference to any cause of action or where it arises
but insists on the presence of the person or authority
'within the territories' in relation to which the High
Court exercises jurisdiction."
16. Article 226 as it stands does not refer anywhere to the
26
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accrual of cause of action and to the jurisdiction of the
High Court depending on the place where the cause of
action accrues being within its territorial jurisdiction.
Proceedings under Art. 226 are not suits; they provide for
extraordinary remedies by a special procedure and give
powers of correction to the High Court over persons and
authorities and these special powers have to be exercised
within the limits set for them. These two limitations have
already been indicated by us above and one of them is that
the person or authority concerned must be within the
territories over which the High Court exercises jurisdiction.
Is it possible then to overlook this constitutional limitation
and say that the High Court can issue a writ against a
person or authority even though it may not be within its
territories simply because the cause of action has arisen
within those territories? It seems to us that it would be
going in the face of the express provision in Art. 226 and
doing away with an express limitation contained therein if
the concept of cause of action were to be introduced in it.
Nor do we think that it is right to say that because Art. 300
specifically provides for suits by and against the
Government of India, the proceedings under Art. 226 are
also covered by Art. 300. It seems to us that Art. 300 which
is on the same line as section 176 of the Government of
India Act, 1935, dealt with suits as such and proceedings
analogous to or consequent upon suits and has no
reference to the extraordinary remedies provided by Art.
226 of the Constitution. The concept of cause of action
cannot in our opinion be introduced in Art. 226, for by
doing so we shall be doing away with the express provision
contained therein which requires that the person or
authority to whom the writ is to be issued should be
resident in or located within the territories over which the
High Court has jurisdiction. It is true that this may result in
some inconvenience to person residing far away from New
Delhi who are aggrieved by some order of the Government
of India as such, and that may be a reason for making a
suitable constitutional amendment in Art. 226. But the
argument of inconvenience, in our opinion, cannot affect
the plain language of Art. 226, nor can the concept of the
place of cause of action be introduced into it for that would
do away with the two limitations on the powers of the High
Court contained in it.
17. We have given our earnest consideration to the
language of Art. 226 and the two decisions of this Court
referred to above. We are of opinion that unless there are
clear and compelling reasons, which cannot be denied, we
27
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should not depart from the interpretation given in these
two cases and indeed from any interpretation given in an
earlier judgment of this Court, unless there is a fair amount
of unanimity that the earlier decisions are manifestly
wrong. This Court should not, except when it is
demonstrated beyond all reasonable doubt that its previous
ruling, given after due deliberation and full hearing, was
erroneous, go back upon its previous ruling, particularly on
a constitutional issue. In this case our reconsideration of
the matter has confirmed the view that there is no place for
the introduction of the concept of the place where the
impugned order has effect or of the concept of functioning
of a Government, apart from the location of its office
concerned with the case, or even of the concept of the place
where the cause of action arises in Art. 226 and that the
language of that Article is plain enough to lead to the
conclusion at which the two cases of this Court referred to
above arrived. If any inconvenience is felt on account of
this interpretation of Art. 226 the remedy seems to be a
constitutional amendment. There is no scope for avoiding
the inconvenience by an interpretation which we cannot
reasonably, on the language of the Article, adopt and which
the language of the Article does not bear.”
41.Expressing his inability to agree with the majority view,
K.Subba Rao,J. (as he then was), construing the words “in
appropriate cases” took the view that the petition in the High
Court of Jammu and Kashmir was maintainable and
summarised his view by stating the following propositions:
“40. ...(1) The power of the High Court under Art. 226 of
the Constitution is of the widest amplitude and it is not
confined only to issuing of writs in the nature of habeas
corpus, etc., for it can also issue directions or orders against
any person or authority, including in appropriate cases any
Government. (2) The intention of the framers of the
Constitution is clear, and they used in the Article words
"any Government" which in their ordinary significance must
include the Union Government. (3) The High Court can
issue a writ to run throughout the territories in relation to
which it exercises jurisdiction and to the person or
authority or Government within the said territories. (4) The
Union Government has no constitutional situs in a
particular place, but it exercise its executive powers in
28
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respect of matters to which Parliament has power to make
laws and the power in this regard is exercisable throughout
India; the Union Government must, therefore, be deemed
in law to have functional existence throughout India. (5)
When by exercise of its powers the Union Government
makes an order infringing the legal right or interest of a
person residing within the territories in relation to which a
particular High Court exercises jurisdiction, that High Court
can issue a writ to the Union Government, for in law it
must be deemed to be "within" that State also. (6) The
High Court by issuing a writ against the Union Government
is not travelling beyond its territorial jurisdiction, as the
order is issued against the said Government "within" the
State. (7) The fact that for the sake of convenience a
particular officer of the said Government issuing an order
stays outside the territorial limits of the High Court is not
of any relevance, for it is the Union Government that will
have to produce the record or carry out the order, as the
case may be. (8) The orders issued by the High Court can
certainly be enforced against the Union Government, as it
is amenable to its jurisdiction, and if they are disobeyed it
will be liable to contempt. (9) Even if the Officers
physically reside outside its territorial jurisdiction, the High
Court can always reach them under the Contempt of Courts
Act, if they choose to disobey the orders validly passed
against the Union Government which cannot easily be
visualized or ordinarily be expected. (10) The difficulties in
communicating the orders pertain to the rules of procedure
and adequate and appropriate rules can be made for
communicating the same to the Central Government or its
officers.”
42.A point on the doctrine of merger arose in Collector of
Customs, Calcutta Vs. East India Commercial Company
Limited, Calcutta and others
15
. In this case a writ petition
under Article 226 was filed before the High Court of Calcutta
against an order of confiscation passed by the Collector of
Customs, Calcutta which had been confirmed by the Central
Board of Revenue. Upon a preliminary objection being raised
by the Department placing reliance upon the decision in the
case of Saka Venkata Subba Rao to the effect that since the
15. AIR 1963 SC 1124
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Central Board of Revenue was not within the territorial
jurisdiction of the High Court, no writ could be issued
against it, the matter was referred to a Full Bench of the
High Court wherein the following questions were
considered:
“(i) Whether any writ could issue against the Central Board
of Revenue which was a party to the writ petition and
which was permanently located outside the jurisdiction of
the High Court; and (ii) Whether if no writ could issue
against the Central Board of Revenue any writ could be
issued against the Collector of Customs (Original
Authority) when the Central Board of Revenue (Appellate
Authority) had merely dismissed the appeal.”
43.On the first question, it was held that the High Court
had no jurisdiction to issue a writ against the Central Board
of Revenue in view of the decision in Saka Venkata Subba
Rao. However, on the second question, the Full Bench took a
view that since the Central Board of Revenue had only
dismissed the appeal against the order of Collector of the
Customs, Calcutta, the order of the Original Authority was
operating and since the said authority was situate within the
jurisdiction of the High Court, therefore, it had jurisdiction
to entertain the petition.
44.The question as to whether the High Court would have
jurisdiction to issue a writ against the original order in spite
of the fact that the same had been taken in appeal to the
Central Board of Revenue against which the High Court
could not issue a writ, was considered before the Supreme
Court upon an appeal filed against the judgment of the High
Court. Speaking for the Bench, K.N. Wanchoo,J. (as he then
was) observed as follows:
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“4. The question therefore turns on whether the order of
the original authority becomes merged in the order of the
Appellate Authority even where the Appellate Authority
merely dismisses the appeal without any modification of
the order of the original authority. It is obvious that when
an appeal is made, the Appellate Authority can do one of
three things, namely, (i) it may reverse the order under
appeal, (ii) it may modify that order, and (iii) it may
merely dismiss the appeal and thus confirm the order
without any modification. It is not disputed that in the first
two cases where the order of the original authority is either
reversed or modified it is the order of the Appellate
Authority which is the operative order and if the High
Court has no jurisdiction to issue a writ to the Appellate
Authority it cannot issue a writ to the original authority.
The question therefore is whether there is any difference
between these two cases and the third case where the
Appellate Authority dismisses the appeal and thus confirms
the order of the original authority. It seems to us that on
principle it is difficult to draw a distinction between the
first two kinds of orders passed by the Appellate Authority
and the third kind of order passed by it. In all these three
cases after the Appellate Authority has disposed of the
appeal, the operative order is the order of the Appellate
Authority whether it has reversed the original order or
modified it or confirmed it. In law, the appellate order of
confirmation is quite as efficacious as an operative order as
an appellate order of reversal or modification. Therefore, if
the Appellate Authority is beyond the territorial jurisdiction
of the High Court it seems difficult to hold even in a case
where the Appellate Authority has confirmed the order of
the original authority that the High Court can issue a writ
to the original authority which may even have the effect of
setting aside the order of the original authority when it
cannot issue a writ to the Appellate Authority which has
confirmed the order of the original authority.”
45.A similar view had been taken earlier in Burhanpur
National Textile Workers' Union, Burhanpur Vs. Labour
Appellate Tribunal of India at Bombay and others
16
,
wherein it was stated as follows:
“26. ...The power to compel an inferior tribunal so to
certify its record must of necessity be territorial in extent
16. AIR 1955 Nag 148
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and has been rendered more so by the manner in which
Article 226 has been framed in the Constitution. If we
cannot make our writ run to the Appellate Tribunal at
Bombay so as to compel it to certify its record to us or to
bind it with our consequent order; we have no jurisdiction
to interfere with its decision at all. To interfere with the
order of the Industrial Court in such circumstances would
be improper. I regret I have to refer to my decision given
when sitting with Choudhuri, J. in — ‘Ramkrishna v.
Daoosingh’, AIR 1953 Nag 357 (E), that the Court does not
do indirectly what it cannot do directly and this Court
should be loath to quash an intermediate order so as to get
rid of a subsequent order by implication. Further, our
action in quashing the order of the Industrial Court would
place that Court and the Registrar on the horns of a
dilemma. Under the Act they would be bound by the order
of the Appellate Tribunal, and equally bound to give effect
to our order. If we do not quash the order of the Appellate
Tribunal and leave it operative, we indirectly compel the
Industrial Court to disobey that order. The Industrial Court
and the Registrar are thus exposed to a commitment for
contempt at the instance of the Appellate Tribunal and
equally at our instance, if they disobey our writ. Such a
situation cannot be allowed to arise and is against the
practice of Courts.”
46.The aforementioned decisions were on the principle
that once an order of an original authority is taken in appeal
to the appellate authority, which is located beyond the
territorial jurisdiction of the High Court, it is the order of the
appellate authority which is the effective order after the
appeal is disposed of, and as the High Court cannot issue a
writ against the appellate authority for want of territorial
jurisdiction, it would not be open to the High Court to issue
a writ to the original authority though the same may be
within its territorial jurisdiction. In other words, once the
appeal is disposed of, though the appellate authority may
have merely confirmed the order of the appellate authority
and dismissed the appeal, the High Court could not issue a
32
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writ to the original authority, which was within its territorial
jurisdiction, since it would have the effect of setting aside the
order of the appellate authority which was located beyond
the jurisdiction of the High Court. The effect of the decisions
was thus to hold that even if the cause of action originally
arose within the territorial jurisdiction of a High Court, if the
appeal lay to an authority beyond its territorial jurisdiction,
the order of the appellate authority could not be subjected to
challenge before that High Court within whose jurisdiction
the original cause of action arose.
47.Another effect of the above decisions was that the only
High Court, at that point of time, which could exercise
jurisdiction to issue any direction, order or writ to the Union
of India, was the Punjab High Court.
48.The resulting inconvenience to persons residing far
away from New Delhi who were aggrieved by some order of
the Government of India was noticed by the Constitution
Bench in the case of Khajoor Singh and it was stated that
the argument of inconvenience may be a reason for making a
suitable constitutional amendment in Article 226, but the
same could not affect the plain language of the said
provision. The observations made in the judgment are as
follows:
“16. ...The concept of cause of action cannot in our opinion
be introduced in Art. 226, for by doing so we shall be doing
away with the express provision contained therein which
requires that the person or authority to whom the writ is to
be issued should be resident in or located within the
territories over which the High Court has jurisdiction. It is
true that this may result in some inconvenience to person
residing far away from New Delhi who are aggrieved by
33
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some order of the Government of India as such, and that
may be a reason for making a suitable constitutional
amendment in Art. 226. But the argument of
inconvenience, in our opinion, cannot affect the plain
language of Art. 226, nor can the concept of the place of
cause of action be introduced into it for that would do
away with the two limitations on the powers of the High
Court contained in it.”
49.The Supreme Court in the Constitution Bench
judgment referred to above held that “cause of action” was
not at all relevant for the purpose of conferring jurisdiction
on High Courts under Article 226, as it originally stood, and
the attempt to import the said concept was repelled.
50.In order to overcome the hardship faced by the
litigants from distant places in regard to invoking writ
jurisdiction against the Central Government, the Constitution
(Fifteenth) Amendment Act, 1963, was brought in, in terms
whereof, after clause (1), clause (1A) was inserted in Article
226 (renumbered as clause (2) by the Constitution (Forty
second)
Amendment Act, 1976).
51.The amended provision now reads as under:
“226. Power of the 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
34
WritA No.2071 of 2017
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.”
52.The statement of objects and reasons giving the
underlying object of the amendment was stated in the
following words:
“Under the existing Article 226 of the Constitution, the only
High Court which has jurisdiction with respect to the
Central Government is the Punjab High Court. This involves
considerable hardship to litigants from distant places. It is,
therefore, proposed to amend Article 226 so that when any
relief is sought against any Government, authority or
person for any action taken, the High Court within whose
jurisdiction the cause of action arises may also have
jurisdiction to issue appropriate directions, orders or writs.”
53.With the coming into force of the Constitution
(Fifteenth) Amendment, on October 5, 1963, and the
insertion of clause (1A), subsequently renumbered as clause
(2), the jurisdiction of the High Court could now be invoked
if the cause of action arose wholly or in part within the
territorial jurisdiction of that High Court.
54.It is thus seen that the Constitution (Fifteenth)
Amendment introduced the concept of cause of action,
which the Supreme Court, in its majority judgment in the
case of Khajoor Singh, had held to be not included in the
language of Article 226.
55.In view of Section 141 CPC, the procedure provided
under the Code of Civil Procedure, may not be held to be
applicable to writ proceedings, however, the concept of
cause of action having been introduced by virtue of the
35
WritA No.2071 of 2017
Constitution (Fifteenth) Amendment, the phraseology used
in Section 20(c) and Article 226(2) of the Constitution being
pari materia, the meaning assigned to the expression “cause
of action” in the context of its use under Section 20(c), may
be adverted to. This is more so, for the reason that the
expression “cause of action” has not been defined in the
Constitution.
56.Section 20 of the Code of Civil Procedure recognises
the territorial jurisdiction of Courts, inter alia, wherever the
cause of action wholly or in part arises.
57.The judicially settled meaning which the expression
“cause of action” has acquired, has been summarised in
Mulla's Code of Civil Procedure
17
, in the following words:
“In the restricted sense, 'cause of action', means the
circumstances forming the infraction of the right or the
immediate occasion for the action. In the wider sense it
means the 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 'cause of action'. It has to be left to be
determined in each individual case as to where the cause of
action arises. The cause of action means the circumstances
forming infraction of the right or immediate occasion for
action. It is left to be determined in each individual case as
to where the cause of action arises. The cause of action in
suit/petition has no reference to the defence taken in the
suit nor is it related to the evidence by which the cause of
action is established.
A suit is always based on a cause of action. There can be no
suit without a cause of action and such cause of action
17. Mulla's Code of Civil Procedure by Sir Dinshaw Fardunji Mulla, 19
th
Edn. Vol. 1
36
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having accrued to the plaintiff, the jurisdiction of the court
in a matter of contract will depend on the situs of the
contract and the cause of action arising through connecting
factors. A cause of action is a bundle of facts which taken
with the law applicable, gives the plaintiff a right to relief
against the defendant. It must include some act done by the
defendant since in the absence of an act no cause of action
can possibly accrue. It is not limited to actual infringement
of right sued on, but includes all the material facts on
which it is founded. It does not comprise evidence
necessary to prove such facts, but every fact necessary for
the plaintiff to prove to enable him to obtain a decree.
Everything which if not proved would give the defendant a
right to immediate judgment must be part of the cause of
action; but it 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. '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. It is a media
upon which the plaintiff asks the court to arrive at a
conclusion in his favour. In legal parlance the expression
'cause of action' is generally understood to mean a situation
or a state of facts that entitle a party to maintain an action
in a court or a tribunal; a group of operative facts giving
rise to one or more bases for suing; a factual situation that
entitles one person to obtain a remedy in court from
another person.”
58.The classical definition of the expression “cause of
action”, referred to in Mulla's Code of Civil Procedure, is
found in the case of Cooke Vs. Gill
18
where in the words of
Lord Brett it was stated thus:
“'Cause of action' 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.”
59.The expression “cause of action” has been defined in
Halsbury's Laws of England
19
, as follows:
“20. Cause of action. “Cause of action” has been defined
as meaning simply a factual situation, the existence of
18. (1873) 8 CP 107
19. Halsbury's Laws of England, 4
th
Edn. Vol.37, p.27
37
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which entitles one person to obtain from the court a
remedy against another person. The phrase has been held
from earliest time to include every fact which is material to
be proved to entitle the plaintiff to succeed, and every fact
which a defendant would have a right to traverse. “Cause
of action” has also been taken to mean that a particular act
on the part of the defendant which gives the plaintiff his
cause of complaint, or the subjectmatter of grievance
founding the action, not merely the technical cause of
action.
The same facts or the same transaction or event may give
rise to more than one effective cause of action.
A cause of action arises wholly or in part within a certain
local area where all or some of the material facts which the
plaintiff has to prove in order to succeed arise within that
area.”
60.In A.B.C. Laminart Private Limited and another Vs.
A.P. Agencies, Salem
20
, the meaning of the expression
“cause of action” was explained thus:
“12. 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 a 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. It does not comprise
evidence necessary to prove such facts, but every fact
necessary for the plaintiff to prove to enable him to obtain
a decree. Everything which if not proved would give the
defendant a right to immediate judgment must be part of
the cause of action. But it 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.”
61.The aforementioned position has been reiterated in
South East Asia Shipping Company Limited Vs. Nav
20. (1989) 2 SCC 163
38
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Bharat Enterprises Private Limited and others
21
, wherein
it has been observed as follows:
“3. It is settled law that cause of action consists of bundle
of facts which give cause to enforce the legal injury for
redress in a court of law. The cause of action means,
therefore, 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 a
bundle of facts, which taken with the law applicable to
them, gives the plaintiff a right to claim 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
would possibly accrue or would arise...”
62.The meaning of the expression “cause of action”, as
understood in English Law, had been summarised in
Paragon Finances Vs. DB Thakerar and Company
22
,
wherein referring to the earlier decisions in Letang Vs.
Cooper
23
, approved in Steamship Mutual Underwriting
Association Limited Vs. Trollope & Colls Limited
24
, the
expression “cause of action” has been held to mean every
fact which is material to be proved to entitle plaintiff to
succeed – every fact which the defendant would have a right
to traverse. The observations made, in this regard, by Millet
LJ, are as follows:
“The classic definition of a cause of action was given by
Brett J in Cooke v Gill (1873) LR 8 CP 107 at p. 116:
“Cause of action” has been held from the earliest
times to mean every fact which is material to be
proved to entitle the plaintiff to succeed,—every fact
which the defendant would have a right to traverse.”
In the Thakerar case Chadwick J cited the more recent
definition offered by Diplock LJ in Letang v Cooper (1965)
1 QB 232 CA at pp. 242243, and approved in Steamship
21. (1996) 3 SCC 443
22. (1999) 1 All ER 400
23. (1964) 2 All ER 929
24. (1986) 6 ConLR 11
39
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Mutual Underwriting Association v Trollop & Colls Ltd
(1986) 6 ConLR 11 at p. 30:
“A cause of action is simply a factual situation the
existence of which entitles one person to obtain from
the court a remedy against another person.”
I do not think that Diplock LJ was intending a different
definition from that of Brett J. However it is formulated,
only those facts which are material to be proved are to be
taken into account. The pleading of unnecessary allegations
or the addition of further instances or better particulars do
not amount to a distinct cause of action. The selection of
the material facts to define the cause of action must be
made at the highest level of abstraction.”
63.In Rajasthan High Court Advocates' Association Vs.
Union of India and others
25
, the meaning of the expression
“cause of action” was compendiously held to include 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, as distinguished from every piece of evidence which is
necessary to prove each fact. As to where the cause of action
arises would have to be left to be determined in each
individual case. It was stated thus:
“17. The expression “cause of action” has acquired a
judiciallysettled meaning. In the restricted sense cause of
action means the circumstances forming the infraction of
the right or the immediate occasion for the action. In the
wider sense, it means the 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 in “cause of action”. It has to be left to
be determined in each individual case as to where the
cause of action arises...”
25. (2001) 2 SCC 294
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64.While considering the meaning of the expression
“cause of action” in Ambica Industries Vs. Commissioner
of Central Excise
26
, it was held that although in view of
Section 141 CPC, the provisions thereof would not apply to
writ proceedings, the phraseology used in Section 20(c) CPC,
and Article 226(2), being in pari materia, the decisions of the
Supreme Court rendered on interpretation of Section 20(c)
shall apply to writ proceedings also keeping in view the
expression “cause of action” used in Article 226(2), it was
stated, that indisputably even if a small fraction thereof
accrues within the jurisdiction of the Court, the Court would
have jurisdiction in the matter though the doctrine of forum
conveniens may also have to be considered. The observations
made in this regard are as follows:
“40. Although in view of Section 141 of the Code of Civil
Procedure the provisions thereof would not apply to writ
proceedings, the phraseology used in Section 20(c) of the
Code of Civil Procedure and Clause (2) of Article 226,
being in pari materia, the decisions of this Court rendered
on interpretation of Section 20(c) CPC shall apply to the
writ proceedings also. Before proceeding to discuss the
matter further it may be pointed out that the entire bundle
of facts pleaded need not constitute a cause of action, as
what is necessary to be proved, before the petitioner can
obtain a decree, is material facts. The expression material
facts is also known as integral facts.
41. Keeping in view the expression “cause of action” used
in Clause (2) of Article 226 of the Constitution of India,
indisputably even if a small fraction thereof accrues within
the jurisdiction of the Court, the Court will have
jurisdiction in the matter though the doctrine of forum
conveniens may also have to be considered.”
65.As we have already taken note of, the expression
“cause of action” having not been defined in the
26. (2007) 6 SCC 769
41
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Constitution, the meaning envisaged under Section 20(c)
CPC, may be adverted to for the purpose of understanding
the meaning of the expression “cause of action”.
66.The meaning of “cause of action” in the context of
territorial jurisdiction of a High Court was subject matter of
consideration in Navinchandra N. Majithia Vs. State of
Maharashtra and others
27
, and it was held that a High
Court will have jurisdiction if any part of cause of action
arises within the territorial limits of its jurisdiction even
though the seat of a Government or authority or residence of
person against whom direction, order or writ is sought to be
issued is not within the said territory. In the facts of the case,
where a writ petition had been filed before the Bombay High
Court for quashing of a criminal complaint filed at Shillong
on the ground that it was false and had been filed with mala
fide intention of causing harassment and putting pressure on
the petitioner to reverse the transaction relating to transfer
of company shares, which had entirely taken place at
Mumbai, and alternatively, making a prayer for issuance of
writ of mandamus to State of Meghalaya for transfer of
investigation to Mumbai Police, it was held, that the Bombay
High Court erred in dismissing the writ petition on ground
that it had no jurisdiction to quash the complaint filed at
Shillong as prayed for. It was held that the relief sought by
the writ petitioner, though is one of the relevant criteria for
consideration, but not the sole consideration in the matter.
Drawing inference from the provision under clause (2) of
Article 226, it was stated that maintainability or otherwise of
27. (2000) 7 SCC 640
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a writ petition in a High Court depends on whether the cause
of action for filing the same arose, wholly or in part, within
the territorial jurisdiction of that Court.
67.Referring to the meaning of the expression “cause of
action” as given in Black's Law Dictionary
28
, Stroud's
Judicial Dictionary of Words and Phrases
29
and also the
definition as per Lord Esher, M.R., in Read Vs. Brown
30
, it
was stated that in legal parlance the expression “cause of
action” is generally understood to mean a situation or state
of facts that entitles a party to maintain an action in a Court
or a Tribunal; a group of operative facts giving rise to one or
more bases for suing; a factual situation that entitles one
person to obtain the remedy in Court from another person.
The observations made in the judgment are extracted
below:
“17. From the provision in clause (2) of Article 226 it is
clear that the maintainability or otherwise of the writ
petition in the High Court depends on whether the cause of
action for filing the same arose, wholly or in part, within
the territorial jurisdiction of that Court.
18. In legal parlance the expression “cause of action” is
generally understood to mean a situation or state of facts
that entitles a party to maintain an action in a court or a
tribunal; a group of operative facts giving rise to one or
more bases for suing; a factual situation that entitles one
person to obtain a remedy in court from another person.
(Black's Law Dictionary)
19. In Stroud's Judicial Dictionary a “cause of action” is
stated to be the entire set of facts that gives rise to an
enforceable claim; the phrase comprises every fact, which,
if traversed, the plaintiff must prove in order to obtain
judgment.
20. In “Words and Phrases” (4th Edn.) the meaning
28. Black's Law Dictionary (9
th
Edn.)
29. Stroud's Judicial Dictionary of Words and Phrases, 8
th
Edn. Vol. 1
30. (1888) 22 QBD 128
43
WritA No.2071 of 2017
attributed to the phrase “cause of action” in common legal
parlance is existence of those facts which give a party a
right to judicial interference on his behalf.
x x x x x
34. When the Constitution was framed, Article 226, as it
originally stood therein provided 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 or writs…”.
Some of the decisions rendered by different High Courts
during the earlier years of the postConstitution period
have given a wider perspective regarding the jurisdiction of
the High Court and pointed out that a High Court can
exercise powers under Article 226 even in respect of
tribunals or authorities situated outside the territorial limits
of its jurisdiction if such tribunal or authority exercises
powers in such a manner as to affect the fundamental
rights of persons residing or carrying on business within the
jurisdiction of such High Court [vide K.S. Rashid Ahmed v.
Income Tax Investigation Commission (AIR 1951 Punj 74),
M.K. Ranganathan v. Madras Electric Tramways (1904) Ltd.
(AIR 1952 Mad 659), Aswini Kumar Sinha v. Dy. Collector of
Central Excise and Land Customs (AIR 1952 Ass 91). It was
Subba Rao, J. (as the learned Chief Justice then was) who
observed in M.K. Ranganathan case that:
“If a tribunal or authority exercises jurisdiction
within the territories affecting such rights it may
reasonably be construed that the authority or the
tribunal functioned within the territorial jurisdiction
of the High Court and, therefore, is amenable to its
jurisdiction.”
35. But a Constitution Bench of this Court has held in
Election Commission, India v. Saka Venkata Subba Rao (AIR
1953 SC 210) thus:
“[T]he power of the High Court to issue writs under
Article 226 of the Constitution is subject to the two
fold limitation that such writs cannot run beyond the
territories subject to its jurisdiction and the person or
authority to whom the High Court is empowered to
issue such writs must be amenable to the jurisdiction
of the High Court either by residence or location
within the territories subject to its jurisdiction.”
36. It was the said decision of the Constitution Bench which
44
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necessitated Parliament to bring the Fifteenth Amendment
to the Constitution by which clause (1A) was added to
Article 226. That clause was subsequently renumbered as
clause (2) by the Constitution FortySecond Amendment.
Now clause (2) of Article 226 reads thus:
“226(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.”
37. The object of the amendment by inserting clause (2) in
the article was to supersede the decision of the Supreme
Court in Election Commission v. Saka Venkata Subba Rao
and to restore the view held by the High Courts in the
decisions cited above. Thus the power conferred on the
High Courts under Article 226 could as well be exercised by
any High Court exercising jurisdiction in relation to the
territories within which “the cause of action, wholly or in
part, arises” and it is no matter that the seat of the
authority concerned is outside the territorial limits of the
jurisdiction of that High Court. The amendment is thus
aimed at widening the width of the area for reaching the
writs issued by different High Courts.
38. “Cause of action” is a phenomenon well understood in
legal parlance. Mohapatra, J. has well delineated the
import of the said expression by referring to the celebrated
lexicographies. The collocation of the words “cause of
action, wholly or in part, arises” seems to have been lifted
from Section 20 of the Code of Civil Procedure, which
section also deals with the jurisdictional aspect of the
courts. As per that section the suit could be instituted in a
court within the legal limits of whose jurisdiction the
“cause of action wholly or in part arises”. Judicial
pronouncements have accorded almost a uniform
interpretation to the said compendious expression even
prior to the Fifteenth Amendment of the Constitution as to
mean “the bundle of facts which would be necessary for the
plaintiff to prove, if traversed, in order to support his right
to the judgment of the court”.
39. In Read v. Brown (1888) 22 QBD 128, Lord Esher, M.R.,
adopted the definition for the phrase “cause of action” that
it meant
45
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“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. It does not
comprise every piece of evidence which is necessary
to prove each fact, but every fact which is necessary
to be proved”.
40. The Privy Council has noted in Mohd. Khalil Khan v.
Mahbub Ali Mian (AIR 1949 PC 78) that the aforesaid
definition adopted by Lord Esher M.R. had been followed
in India. Even thereafter the courts in India have
consistently followed the said interpretation without
exception for understanding the scope of the expression
“cause of action”.”
68.Cause of action, in legal parlance, has been understood
as a situation or “state of facts” which entitles a party to
maintain an action before a Court or Tribunal. It would refer
to the existence of those facts set forth in the plaint upon
which the party seeks a right to judicial interference on his
behalf. Facts which would have no bearing on the lis or the
dispute involved in the case, would, therefore, not give rise
to a cause of action so as to confer territorial jurisdiction on
the Court.
69.It may be necessary at this stage to take notice of the
distinction between the terms “right of action” and “cause of
action”.
70.The distinction between the two terms has been
referred to in American Jurisprudence
31
, wherein it has
been stated as follows:
"Although the courts sometimes confuse the term 'cause of
action' and 'right of action' and state that right of action at
law arises from the existence of a primary right in the
plaintiff and the invasion of that right by some delict on the
part of the defendant, in a legal sense, these terms are not
31. American Jurisprudence 2
nd
Edn. Vol. 1 p.541
46
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synonymous or interchangeable. A right of action is the
right to presently enforce a cause of action a remedial
right affording redress for the infringement of legal right
belonging to some definite person, a cause of action is the
operative facts which give rise to such right of action. Right
of action does not arise until the performance of conditions
precedent to the action and may be taken away by the
running of the statute of limitation, through an estoppel, or
by 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."
71.The aforementioned distinction, was also recognised in
Code Pleading by Phillips
32
, which has been referred to in
an article by Oliver L. McCaskill
33
, “The Elusive Cause of
Action”, and it was stated thus:
“It should be borne in mind that a right of action is a
remedial right belonging to some person, and that a cause
of action is a formal statement of the operative facts that
give rise to such remedial right. The one is matter of right,
and depends upon the substantive law; the other is matter
of statement, and is governed by the law of procedure. The
terms, 'right of action' and 'cause of action,' are therefore
not equivalent terms, and should not be used
interchangeably.”
72.We may also gainfully refer to Code Remedies by
Pomeroy
34
, wherein it has been stated as follows:
“Every judicial action must therefore involve the following
elements: a primary right possessed by the plaintiff, and a
corresponding primary duty devolving upon the defendant;
a delict or wrong done by the defendant which consisted in
a breach of such primary right and duty ; a remedial right
in favor of the plaintiff, and a remedial duty resting on the
defendant springing from this delict, and finally the remedy
or relief itself. Every action, however complicated or
however simple, must contain these essential elements. Of
these elements, the primary right and duty and the delict or
wrong combined constitute the cause of action in the legal
32. Phillips, Code of Pleading § 189 (2
nd
Edn. 1932)
33. University of Chicago Law Review (1937) Vol.4 Issue 2, Article 10
34. Pomeroy, Code Remedies §§ 347349 (4
th
Edition 1904)
47
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sense of the term, and as used in the codes of the several
States. They are the legal cause or foundation whence the
right of action springs, this right of action being identical
with the 'remedial right' as designated in my analysis. In
accordance with the principles of pleading adopted in the
new American system, the existence of a legal right in an
abstract form is never alleged by the plaintiff; but, instead
thereof, the facts from which that right arises are set forth,
and the right itself is inferred therefrom. The cause of
action, as it appears in the complaint when properly
pleaded, will therefore always be the facts from which the
plaintiff's primary right and the defendant's corresponding
primary duty have arisen, together with the facts which
constitute the defendant's delict or act of wrong..... From
one cause of action, that is, from one primary right and one
delict being a breach thereof, it is possible, and not at all
uncommon, that two or more remedial rights may arise,
and therefore two or more different kinds of relief
answering to these separate remedial rights. This is
especially so when one remedial right and corresponding
relief are legal, and the other equitable; but it is not
confined to such cases..... If the facts alleged show one
primary right of the plaintiff, and one wrong done by the
defendant which involves that right, the plaintiff has stated
but a single cause of action, no matter how many forms
and kinds of relief he may claim that he is entitled to, and
may ask to recover; the relief is no part of the cause of
action."
73.The relation between “right of action” and “cause of
action” has been further analysed in the article “Actions and
Causes of Action” by O.L. McCaskill
35
, wherein referring to
the observations made by Phillips in Code Pleading
36
, it has
been stated thus:
"Judge Phillips describes the cause of action in this fashion:
“The question to be determined at the threshold of
every action is, whether there is occasion for the state to
interfere. Therefore, when a suitor asks that the public
force be exerted in his behalf, he must show that there
is, prima facie, occasion for the state to act in his behalf.
That is, he must show a right in himself, recognized by
35. (1925) 34 Yale Law Journal 614
36. Phillips, Code Pleading (1896) secs. 3032
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law, and a wrongful invasion thereof, actual or
threatened. And since both rights and delicts arise from
operative facts, he must affirm of himself such
investitive fact or group of facts as will show a
consequent legal right in him, and he must affirm of the
adversary party such culpatory fact or facts as will show
his delict with reference to the right so asserted. The
formal statement of operative facts showing such right
and such delict shows a cause for action on the part of
the state and in behalf of the complainant, and is called
in legal phraseology, a cause of action."
"From the foregoing definitions of right of action and
cause of action, it will be seen that the former is a
remedial right belonging to some person, and that the
latter is a formal statement of the operative facts that
give rise to such remedial right. The one is matter of
right, and depends upon the substantive law; the other
is matter of statement, and is governed by the law of
procedure." .....
"It will appear, without further analysis, that a
statement of facts, to constitute a cause of action, must
show a right of action; that to show a right of action, it
must state facts to show (I) a primary right and its
corresponding duty, and (2) the infringement of this
right by the party owing this duty. From the one set of
facts the law raises the primary right and duty, and to
the other set of facts the law attaches a remedial right,
or right of action....”
74.The distinction between “cause of action” and “right of
action” was noticed by a Full Bench of this Court in Sardar
Balbir Singh Vs. Atma Ram Srivastava
37
, in the context of
Order II of the CPC, and referring to the decisions in
Whitfield Vs. Aetna
38
, Emory Vs. Hazard Powder
Company
39
, Weldon Vs. Neal
40
, Cooke Vs. Gill
18
, Robinson
Vs. Unicos Property Corporation Limited
41
, Dorman Vs.
37. AIR 1977 All 211
38. (1906) 205 US 489
39. 22 SC 476
40. (1887) 19 QBD 394
18. (1873) 8 CP 107
41. (1962) 2 All ER 24
49
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J.W. Ellis and Company Limited
42
, Sidramappa Vs.
Rajashetty
43
and Gurbux Singh Vs. Bhooralal
44
, it was
observed as follows:
“48. What does the expression 'cause of action' as used in
Order II of the Code of Civil Procedure connote ? An all
embracing definition of the term 'cause of action' is not to
be easily found. It may mean one thing for one purpose and
something different for another depending, for example, on
the question whether the principle of res judicata applies or
whether an amendment of pleading is permissible or
whether a pleading is good upon demurrer and so on.
Cause of action has sometime been defined as being the
fact or facts which establish or give rise to a right of action,
the existence of which affords a party a right to judicial
relief. The facts which comprise the cause of action are
those which, if traversed, the plaintiff is obliged to prove in
order to obtain a judgment, or those facts which the
defendant would have the right to traverse, or as observed
in Whitfield v. Aetna, (1906) 205 US 489 "a cause of action
is the reverse of a defence, which is defined as whatever
tends to diminish the plaintiff's cause of action or to defeat
recovery in whole or in part"; or as laid down in Emory v.
Hazard Powder Co., (22 SC 476) "a cause of action arises
where there has been an invasion of a legal right without
justification or sufficient cause"; or that a cause of action is
that single group of facts which is claimed to have brought
about an unlawful injury to the plaintiff and which entitles
him to relief. It consists of a right belonging to one person
and some wrongful act or omission by another by which
that right has been violated. It has been variously stated
that a cause of action cannot exist without the concurrence
of a right, a duty, and the default and is the subject of an
action. It has also been defined as the subject of an action,
or the wrong for which the law prescribes a remedy. While
dealing with an application for amendment of plaint the
Supreme Court observed in A.K. Gupta and Sons v.
Damodar Valley Corporation, (AIR 1967 SC 96):
"The general rule, no doubt, is that a party is not
allowed by amendment to set up a new case or a new
cause of action particularly when a suit on new case
or cause of action is barred: Weldon v. Neal, (1887)
19 QBD 394. But it is also well recognised that where
42. (1962) 1 All ER 303
43. AIR 1970 SC 1059
44. AIR 1964 SC 1810
50
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the amendment does not constitute the addition of a
new cause of action or raise a different case, but
amounts to no more than a different or additional
approach to the same facts, the amendment will be
allowed even after the expiry of the statutory period
of limitation."
Then dealing with the connotation of the term 'cause of
action' in the context of an application for amendment of
pleading the Supreme Court observed:
"The expression 'cause of action' in the present
context does not mean 'every fact which it is material
to be proved to entitle the plaintiff to succeed' as was
said in Cooke v. Gil, (1873) 8 CP 107 (116), in a
different context for if it were so, no material fact
could ever be amended or added and, of course, no
one would want to change or add an immaterial
allegation by amendment. That expression for the
present purpose only means a new claim made on a
new basis constituted by new facts. Such a view was
taken in Robinson v. Unicos Property Corpn. Ltd.,
19622 All ER 24, and it seems to us to be the only
possible view to take. Any other view would make
the rule futile. The words 'new case' have been
understood to mean 'new set of ideas' Dorman v. J.
W. Ellis and Co. Ltd., 19621 All ER 303. This also
seems to us to be a reasonable view to take. No
amendment will be allowed to introduce a new set of
ideas to the prejudice of any right acquired by any
party by lapse of time."
The term 'cause of action', however, for the purpose of
Order II means 'cause of action' which gives occasion for
and forms the foundation of the suit. (See AIR 1970 SC
1059 (Sidramappa v. Rajashetty), and AIR 1964 SC 1810,
Gurbax Singh v. Bhooralal).
There is, however, a 'distinction' between 'cause of action'
and the 'right of action'. These terms are not synonymous
and interchangeable. A 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. The right of action
does not arise until the performance of all conditions
precedent to the action, and may be taken away by the
running of the statute of limitations, through an estoppel,
or by other circumstances which do not affect the cause of
action. There may be several rights of action and one cause
51
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of action and rights may accrue at different times from the
same cause.
49. Cause of action should also be distinguished from
'remedy' which is the means or method whereby the cause
of action or corresponding obligation is effectuated and by
which a wrong is redressed and relief obtained. The one
precedes and gives rise to the other, but they are separate
and distinct from each other and are governed by different
rules and principles. The cause of action is the obligation
from which springs the "action", defined as the right to
enforce an obligation, A cause of action arises when that
which ought to have been done is not done or that which
ought not to have been done is done. The essential
elements of a cause of action are thus the existence of a
legal right in the plaintiff with a corresponding legal duty
in the defendant, and a violation or breach of that "right or
duty" with consequential injury or damage to the plaintiff
for which he may maintain an action for appropriate relief
or reliefs. The right to maintain an action depends upon the
existence of a cause of action which involves a combination
of a right on the part of the plaintiff and the violation of
such right by the defendant. The duty on the part of the
defendant may arise from a contract or may be imposed by
positive law independent of contract, it may arise of
contractus or ex delicto. A cause of action arises from the
invasion of the plaintiff's right by violation of some duty
imposed upon the defendant in favour of the plaintiff either
by voluntary contract or by positive law.”
75.The meaning of the two expressions was again
considered by a Division Bench of this Court in Daya
Shankar Bhardwaj Vs. Chief of the Air Staff, New Delhi
and others
45
, and it was reiterated that the two are neither
synonymous nor interchangeable. The meaning of the term
“right of action” as provided in American Jurisprudence
Vol. 1
46
was considered and it was stated as follows:
“13. ...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
45. AIR 1988 All 36
46. American Jurisprudence 2
nd
Edn. Vol. 1
52
WritA No.2071 of 2017
Jurisprudence 2nd Edition vol. 1.) 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.”
76.The expression “cause of action” has been held to have
no relation whatever to the defence which may be set up by
the defendant nor does it refer to the character of the relief
prayed for by the plaintiff, and it would be referable entirely
to the grounds set forth in the plaint. The observations made
by Lord Watson in the Privy Council judgment of Chand
Kaur and another Vs. Partab Singh and others
47
would be
apposite in this regard:
"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."
77.The meaning of the expression “cause of action”, in the
context of the territorial jurisdiction of a High Court under
Article 226(2), was considered in State of Rajasthan and
others Vs. M/s Swaika Properties and another
48
, and it
was observed that in order to invest the High Court with
jurisdiction to entertain the petition the transaction in
question must be an integral part of the cause of action. In
the facts of the case it was held that the service of notice on
the respondent at its registered office at Calcutta within the
47. ILR 1889 (16) Cal 98
48. (1985) 3 SCC 217
53
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territorial limits of the State of West Bengal, in respect of
acquisition proceedings initiated by Rajasthan State
Government regarding land situate in Jaipur, could not give
rise to a cause of action within the territorial jurisdiction of
the Calcutta High Court unless the service of such notice was
an integral part of the cause of action. The observations
made in the judgment are as follows:
“8. The expression “cause of action” is tersely defined in
Mulla's Code of Civil Procedure:
The ‘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 a bundle of facts which taken with the
law applicable to them gives the plaintiff a right to relief
against the defendant. The mere service of notice under
Section 52(2) of the Act on the respondents at their
registered office at 18B, Brabourne Road, Calcutta i.e.
within the territorial limits of the State of West Bengal,
could not give rise to a cause of action within that territory
unless the service of such notice was an integral part of the
cause of action. The entire cause of action culminating in
the acquisition of the land under Section 52(1) of the Act
arose within the State of Rajasthan i.e. within the territorial
jurisdiction of the Rajasthan High Court at the Jaipur
Bench. The answer to the question whether service of
notice is an integral part of the cause of action within the
meaning of Article 226(2) of the Constitution must depend
upon the nature of the impugned order giving rise to a
cause of action. The notification dated February 8, 1984
issued by the State Government under Section 52(1) of the
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 respondents to
plead the service of notice on them by the Special Officer,
Town Planning Department, Jaipur 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. If the respondents felt aggrieved by the acquisition of
their lands situate at Jaipur and wanted to challenge the
54
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validity of the notification issued by the State Government
of Rajasthan under Section 52(1) of the Act by a petition
under Article 226 of the Constitution, the remedy of the
respondents for the grant of such relief had to be sought by
filing such a petition before the Rajasthan High Court,
Jaipur Bench, where the cause of action wholly or in part
arose.”
78.The question of territorial jurisdiction of the High
Court under Article 226(2) again came up for consideration
in Oil and Natural Gas Commission Vs. Utpal Kumar Basu
and others
11
, and it was held that territories within which
the cause of action, wholly or in part, arises, is to be decided
on facts pleaded in the petition, disregarding the truth or
otherwise thereof.
79.In the facts of the case, the mere fact that the
petitioner company, having its registered office at Calcutta,
had responded to an advertisement published in a Calcutta
newspaper, inviting tenders at Delhi, for the works to be
executed in Gujarat, had sent its tender to the Delhi address
from Calcutta and also made representations from Calcutta
against nonconsideration of its offer, held, did not disclose
that even a part of cause of action arose within the territorial
jurisdiction of Calcutta High Court, and it had no jurisdiction
to entertain the writ petition. The observations made in the
judgment are as follows:
“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 or writs, for the enforcement
11. (1994) 4 SCC 711
55
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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 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, ILR (1889) 16
Cal 98, 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
56
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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.”
80.The question as to whether location of head office of a
company within the territorial jurisdiction of a High Court
would automatically give it jurisdiction was subject matter of
consideration in Eastern Coalfields Limited and others Vs.
Kalyan Banerjee
49
. In the facts of the case, a challenge to
termination of service of an employee was raised where the
company was having its head office in West Bengal. The
services of the employee were terminated at a place in
Jharkhand State by his appointing authority whose office
was also located at the same place. The termination order
was not subject to sanction of the head office. In such
circumstances, no part of the cause of action having arisen in
West Bengal, it was held, that mere location of the head
office of the company in West Bengal would not confer
jurisdiction upon Calcutta High Court to entertain such a
petition. It was reiterated that “cause of action” for the
purpose of Article 226(2), must be assigned the same
meaning as under Section 20(c) CPC. It would mean a
bundle of facts which are required to be proved; however,
the entire bundle of facts pleaded, need not constitute a
cause of action as what is necessary to be proved is material
facts whereupon a writ petition can be allowed.
81.A question as to whether order of Supreme Court could
49. (2008) 3 SCC 456
57
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confer territorial jurisdiction on a High Court in matters in
which High Court is lacking the same was considered in
Satya Prakash Vs. State of U.P. and others
50
. In this case
reliance was placed upon prior order of the Supreme Court
dismissing the appellant's petition under Article 32 with
liberty to move the appropriate Court including the High
Court of Delhi, if so advised. The offence having been
committed within the jurisdiction of Allahabad High Court, it
was held that the Supreme Court's order could not be
construed to confer any territorial jurisdiction on Delhi High
Court when it does not possess such jurisdiction.
82.The nature of facts which give rise to "part of cause of
action" within the territorial jurisdiction of a High Court in
the context of clause (2) of Article 226 came up for
consideration in the case of Union of India and others. Vs.
Adani Exports Ltd. and another
51
and it was held that in
order to confer jurisdiction on the High Court to entertain a
writ petition, the Court must be satisfied from the entire
facts pleaded in support of the cause of action that those
facts do constitute a cause so as to empower the Court to
decide a dispute which has, at least in part, arisen within its
jurisdiction. Each and every fact pleaded in the application
may not ipso facto lead to the conclusion that those facts give
rise to a cause of action within the Court's territorial
jurisdiction unless those facts are such which have a nexus or
relevance with the lis that is involved in the case. Facts
which have no bearing with the lis or the dispute involved in
50. (2000) 9 SCC 421
51. (2002) 1 SCC 567
58
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the case, were held, to be not giving rise to a cause of action
so as to confer territorial jurisdiction on the Court concerned.
The observations made in the judgment are being extracted
below:
"15. Article 226(2) of the Constitution of India which
speaks of the territorial jurisdiction of the High Court
reads:
“226(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.”
16. It is clear from the above constitutional provision that a
High Court can exercise the jurisdiction in relation to the
territories within which the cause of action, wholly or in
part, arises. This provision in the Constitution has come up
for consideration in a number of cases before this Court. In
this regard, it would suffice for us to refer to the
observations of this Court in the case of Oil and Natural
Gas Commission v. Utpal Kumar Basu (1994) 4 SCC 711
wherein it was held:
“Under Article 226 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. 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 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
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otherwise of the said facts. Thus the question of
territorial jurisdiction must be decided on the facts
pleaded in the petition, the truth or otherwise of the
averments made in the petition being immaterial.”
17. It is seen from the above that in order to confer
jurisdiction on a High Court to entertain a writ petition or a
special civil application as in this case, the High Court must
be satisfied from the entire facts pleaded in support of the
cause of action that those facts do constitute a cause so as
to empower the court to decide a dispute which has, at
least in part, arisen within its jurisdiction. It is clear from
the above judgment that each and every fact pleaded by the
respondents in their application does not ipso facto lead to
the conclusion that those facts give rise to a cause of action
within the court's territorial jurisdiction unless those facts
pleaded are such which have a nexus or relevance with the
lis that is involved in the case. Facts which have no bearing
with the lis or the dispute involved in the case, do not give
rise to a cause of action so as to confer territorial
jurisdiction on the court concerned. If we apply this
principle then we see that none of the facts pleaded in para
16 of the petition, in our opinion, falls into the category of
bundle of facts which would constitute a cause of action
giving rise to a dispute which could confer territorial
jurisdiction on the courts at Ahmedabad."
83.The meaning of the expression “cause of action” was
discussed in National Textile Corporation Limited and
others Vs. Haribox Swalram and others
52
, while
considering the facts giving rise to the Court's territorial
jurisdiction, in the context of Article 226(2), and it was held
that only those facts give rise to a cause of action within a
Court's territorial jurisdiction which have a nexus or
relevance with the lis that is involved in that case, and not
otherwise. It was stated thus:
“10. Under clause (2) of Article 226 of the Constitution, the
High Court is empowered to issue writs, orders or
directions to any Government, authority or person
exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for the
52. (2004) 9 SCC 786
60
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exercise of such power, notwithstanding that the seat of
such Government or authority or the residence of such
person is not within those territories. Cause of action as
understood in the civil proceedings means every fact which,
if traversed, would be necessary for the plaintiff to prove in
order to support his right to a judgment of the court. To
put it in a different way, it is the bundle of facts which
taken with the law applicable to them, gives the plaintiff a
right to relief against the defendant. In Union of India v.
Adani Exports Ltd. (2002) 1 SCC 567 in the context of
clause (2) of Article 226 of the Constitution, it has been
explained that each and every fact pleaded in the writ
petition does not ipso facto lead to the conclusion that those
facts give rise to a cause of action within the court's
territorial jurisdiction unless those facts pleaded are such
which have a nexus or relevance with the lis that is
involved in the case. Facts which have no bearing with the
lis or dispute involved in the case, do not give rise to a
cause of action so as to confer territorial jurisdiction on the
court concerned. A similar question was examined in State
of Rajasthan v. Swaika Properties (1985) 3 SCC 217. Here
certain properties belonging to a company which had its
registered office in Calcutta were sought to be acquired in
Jaipur and a notice under Section 52 of the Rajasthan
Urban Improvement Act was served upon the company at
Calcutta. The question which arose for consideration was
whether the service of notice at the head office of the
company at Calcutta could give rise to a cause of action
within the State of West Bengal to enable the Calcutta High
Court to exercise jurisdiction in a matter where challenge
to acquisition proceedings conducted in Jaipur was made.
It was held that the entire cause of action culminating in
the acquisition of the land under Section 152 of the
Rajasthan Act arose within the territorial jurisdiction of the
Rajasthan High Court and it was not necessary for the
company to plead the service of notice upon them at
Calcutta for grant of appropriate writ, order or direction
under Article 226 of the Constitution for quashing the
notice issued by the Rajasthan Government under Section
52 of the Act. It was thus held that the Calcutta High Court
had no jurisdiction to entertain the writ petition.”
84.The territorial scope of an order of a High Court under
Article 226 and the meaning of the expression "cause of
action" in the context of clause (2) of Article 226 was subject
61
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matter of consideration in Kusum Ingots & Alloys Ltd. Vs.
Union of India and another
53
Taking into consideration that
the phraseology used in Section 20(c) of the Code of Civil
Procedure, 1908
54
and clause (2) of Article 226 are in pari
materia, the decisions of the Supreme Court rendered on
interpretation of Section 20(c) CPC were held to be
applicable to writ proceedings also and it was held that even
if a small fraction of cause of action accrues within the
jurisdiction of the Court, the Court will have jurisdiction in
the matter. The observations made in the judgment in this
regard are as follows:
"6. Cause of action implies a right to sue. The material facts
which are imperative for the suitor to allege and prove
constitute the cause of action. Cause of action is not
defined in any statute. It has, however, been judicially
interpreted inter alia to mean that every fact which would
be necessary for the plaintiff to prove, if traversed, in order
to support his right to the judgment of the Court.
Negatively put, it would mean that everything which, if not
proved, gives the defendant an immediate right to
judgment, would be part of cause of action. Its importance
is beyond any doubt. For every action, there has to be a
cause of action, if not, the plaint or the writ petition, as the
case may be, shall be rejected summarily.
7. Clause (2) of Article 226 of the Constitution of India
reads thus:
“226(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.”
8. Section 20(c) of the Code of Civil Procedure reads as
under:
53. (2004) 6 SCC 254
54. CPC
62
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“20. Other suits to be instituted where defendants
reside or cause of action arises.—Subject to the
limitations aforesaid, every suit shall be instituted in
a court within the local limits of whose jurisdiction—
(a)(b) x x x
(c) the cause of action, wholly or in part, arises.”
9. Although in view of Section 141 of the Code of Civil
Procedure the provisions thereof would not apply to writ
proceedings, the phraseology used in Section 20(c) of the
Code of Civil Procedure and clause (2) of Article 226, being
in pari materia, the decisions of this Court rendered on
interpretation of Section 20(c) CPC shall apply to the writ
proceedings also. Before proceeding to discuss the matter
further it may be pointed out that the entire bundle of facts
pleaded need not constitute a cause of action as what is
necessary to be proved before the petitioner can obtain a
decree is the material facts. The expression material facts is
also known as integral facts.
10. Keeping in view the expressions used in clause (2) of
Article 226 of the Constitution of India, indisputably even if
a small fraction of cause of action accrues within the
jurisdiction of the Court, the Court will have jurisdiction in
the matter."
85.The principle that the question of territorial jurisdiction
to entertain a writ petition must be arrived at solely on the
basis of averments made in the petition, the truth or
otherwise thereof being immaterial was reiterated placing
reliance upon the judgments in Chand Kaur and another
Vs. Partab Singh and others
47
, Oil and Natural Gas
Commission Vs. Utpal Kumar Basu and others
11
, State of
Rajasthan Vs. Swaika Properties
48
, Aligarh Muslim
University Vs. Vinay Engineering Enterprises (P) Ltd
10
,
Union of India Vs. Adani Exports Ltd. and National
Textile Corporation Ltd. Vs. Haribox Swalram and
47. ILR 1889 (16) Cal 98
11. (1994) 4 SCC 711
48. (1985) 3 SCC 217
10. (1994) 4 SCC 710
63
WritA No.2071 of 2017
others
52
, and it was stated thus:
"11. In Chand Kour v. Partab Singh (188788) 15 IA 156 it
was held: (IA pp. 15758)
“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
grounds 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.”
12. This Court in Oil & Natural Gas Commission v. Utpal
Kumar Basu (1994) 4 SCC 711 held that the question as to
whether the Court has a territorial jurisdiction to entertain
a writ petition, must be arrived at on the basis of averments
made in the petition, the truth or otherwise thereof being
immaterial.
13. This Court in Oil and Natural Gas Commission case held
that all necessary facts must form an integral part of the
cause of action. It was observed: (SCC p. 719, para 8)
“So also the mere fact that it sent fax messages from
Calcutta and received a reply thereto at Calcutta
would not constitute an integral part of the cause of
action.”
14. In State of Rajasthan v. Swaika Properties (1985) 3 SCC
217 this Court opined that mere service of a notice would
not give rise to any cause of action unless service of notice
was an integral part of the cause of action. The said
decision has also been noticed in Oil and Natural Gas
Commission. This Court held: (SCC p. 223, para 8)
“The answer to the question whether service of
notice is an integral part of the cause of action within
the meaning of Article 226(2) of the Constitution
must depend upon the nature of the impugned order
giving rise to a cause of action.”
15. In Aligarh Muslim University v. Vinay Engg. Enterprises
(P) Ltd. (1994) 4 SCC 710 this Court lamented: (SCC p.
711, para 2)
“2. We are surprised, not a little, that the High Court
of Calcutta should have exercised jurisdiction in a
case where it had absolutely no jurisdiction. The
contracts in question were executed at Aligarh, the
construction work was to be carried out at Aligarh,
52. (2004) 9 SCC 786
64
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even the contracts provided that in the event of
dispute the Aligarh court alone will have jurisdiction.
The arbitrator was from Aligarh and was to function
there. Merely because the respondent was a Calcutta
based firm, the High Court of Calcutta seems to have
exercised jurisdiction where it had none by adopting
a queer line of reasoning. We are constrained to say
that this is a case of abuse of jurisdiction and we feel
that the respondent deliberately moved the Calcutta
High Court ignoring the fact that no part of the cause
of action had arisen within the jurisdiction of that
Court. It clearly shows that the litigation filed in the
Calcutta High Court was thoroughly unsustainable.”
16. In Union of India v. Adani Exports Ltd. (2002) 1 SCC
567 it was held that in order to confer jurisdiction on a
High Court to entertain a writ petition it must disclose that
the integral facts pleaded in support of the cause of action
do constitute a cause so as to empower the Court to decide
the dispute and the entire or a part of it arose within its
jurisdiction.
17. Recently, in National Textile Corpn. Ltd. v. Haribox
Swalram (2004) 9 SCC 786 a Division Bench of this Court
held: (SCC p. 797, para 12.1)
“12.1. As discussed earlier, the mere fact that the
writ petitioner carries on business at Calcutta or that
the reply to the correspondence made by it was
received at Calcutta is not an integral part of the
cause of action and, therefore, the Calcutta High
Court had no jurisdiction to entertain the writ
petition and the view to the contrary taken by the
Division Bench cannot be sustained. In view of the
above finding, the writ petition is liable to be
dismissed.”
18. The facts pleaded in the writ petition must have a
nexus on the basis whereof a prayer can be granted. Those
facts which have nothing to do with the prayer made
therein cannot be said to give rise to a cause of action
which would confer jurisdiction on the Court."
86.The situs of the office of the respondents was held to
be not relevant for the purposes of territorial jurisdiction and
it was held in the context of clause (2) of Article 226 that a
place where appellate/revisional order is passed may give
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rise to a part of the cause of action although the original
order was made at a place outside the said area, and when a
part of an action arises within one or the other High Court it
would be for the litigant who is the dominus litis to have his
forum conveniens that is to choose his forum. The
observations made in the judgment in this regard are as
follows:
"23. A writ petition, however, questioning the
constitutionality of a parliamentary Act shall not be
maintainable in the High Court of Delhi only because the
seat of the Union of India is in Delhi. (See Abdul Kafi Khan
v. Union of India AIR 1979 Cal 354).
24. Learned counsel for the appellant in support of his
argument would contend that the situs of framing law or
rule would give jurisdiction to the Delhi High Court and in
support of the said contention relied upon the decisions of
this Court in Nasiruddin v. STAT (1975) 2 SCC 671 and
U.P. Rashtriya Chini Mill Adhikari Parishad v. State of U.P.
(1995) 4 SCC 738. So far as the decision of this Court in
Nasiruddin v. STAT is concerned, it is not an authority for
the proposition that the situs of legislature of a State or the
authority in power to make subordinate legislation or issue
a notification would confer power or jurisdiction on the
High Court or a Bench of the High Court to entertain a
petition under Article 226 of the Constitution. In fact this
Court while construing the provisions of the United
Provinces High Courts (Amalgamation) Order, 1948 stated
the law thus: (SCC p. 683, para 37)
“37. The conclusion as well as the reasoning of the
High Court is incorrect. It is unsound because the
expression ‘cause of action’ in an application under
Article 226 would be as the expression is understood
and if the cause of action arose because of the
appellate order or the revisional order which came to
be passed at Lucknow then Lucknow would have
jurisdiction though the original order was passed at a
place outside the areas in Oudh. It may be that the
original order was in favour of the person applying
for a writ. In such case an adverse appellate order
might be the cause of action. The expression ‘cause
of action’ is well known. If the cause of action arises
wholly or in part at a place within the specified Oudh
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areas, the Lucknow Bench will have jurisdiction. If
the cause of action arises wholly within the specified
Oudh areas, it is indisputable that the Lucknow
Bench would have exclusive jurisdiction in such a
matter. If the cause of action arises in part within the
specified areas in Oudh it would be open to the
litigant who is the dominus litis to have his forum
conveniens. The litigant has the right to go to a court
where part of his cause of action arises. In such
cases, it is incorrect to say that the litigant chooses
any particular court. The choice is by reason of the
jurisdiction of the court being attracted by part of
cause of action arising within the jurisdiction of the
court. Similarly, if the cause of action can be said to
have arisen part within specified areas in Oudh and
part outside the specified Oudh areas, the litigant
will have the choice to institute proceedings either at
Allahabad or Lucknow. The court will find out in
each case whether the jurisdiction of the court is
rightly attracted by the alleged cause of action.”
25. The said decision is an authority for the proposition
that the place from where an appellate order or a revisional
order is passed may give rise to a part of cause of action
although the original order was at a place outside the said
area. When a part of the cause of action arises within one
or the other High Court, it will be for the petitioner to
choose his forum.
26. The view taken by this Court in U.P. Rashtriya Chini
Mill Adhikari Parishad (1995) 4 SCC 738 that the situs of
issue of an order or notification by the Government would
come within the meaning of the expression “cases arising”
in clause 14 of the (Amalgamation) Order is not a correct
view of law for the reason hereafter stated and to that
extent the said decision is overruled. In fact, a legislation, it
is trite, is not confined to a statute enacted by Parliament
or the legislature of a State, which would include delegated
legislation and subordinate legislation or an executive
order made by the Union of India, State or any other
statutory authority. In a case where the field is not covered
by any statutory rule, executive instructions issued in this
behalf shall also come within the purview thereof. Situs of
office of Parliament, legislature of a State or authorities
empowered to make subordinate legislation would not by
itself constitute any cause of action or cases arising. In
other words, framing of a statute, statutory rule or issue of
an executive order or instruction would not confer
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jurisdiction upon a court only because of the situs of the
office of the maker thereof.
27. When an order, however, is passed by a court or
tribunal or an executive authority whether under provisions
of a statute or otherwise, a part of cause of action arises at
that place. Even in a given case, when the original
authority is constituted at one place and the appellate
authority is constituted at another, a writ petition would be
maintainable at both the places. In other words, as order of
the appellate authority constitutes a part of cause of action,
a writ petition would be maintainable in the High Court
within whose jurisdiction it is situate having regard to the
fact that the order of the appellate authority is also
required to be set aside and as the order of the original
authority merges with that of the appellate authority."
87.It was also held that if a small fraction of cause of
action accrues within the jurisdiction of the Court, the Court
would have jurisdiction in the matter; however, the same by
itself may not be considered to be a determinative factor
compelling the High Court to decide the matter on merits
and in appropriate cases the Court may refuse to exercise its
discretionary jurisdiction by invoking the doctrine of forum
conveniens. Reference in this regard was made to the
judgments in the cases of Bhagat Singh Bugga Vs. Dewan
Jagbir Sawhney
55
, Madanlal Jalan Vs. Madanlal
56
, Bharat
Coking Coal Ltd. Vs. Jharia Talkies & Cold Storage (P)
Ltd.
57
, S.S. Jain & Co. Vs. Union of India
58
and New
Horizons Ltd. Vs. Union of India
59
.
88.The principle with regard to the doctrine of forum
conveniens was stated by Lord Kinnear in Sim Vs.
55. AIR 1941 Cal 670
56. AIR 1949 Cal 495
57. 1997 CWN 122
58. (1994) 1 CHN 445
59. AIR 1994 Del 126
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Robinow
60
in the following manner, which is being extracted
below:
“The general rule was stated by the late Lord President in
Clements v. Macaulay, 4 Macph. 593, in the following terms:
'In cases in which jurisdiction is competently founded, a
court has no discretion whether it shall exercise its
jurisdiction or not, but is bound to award the justice which
a suiter comes to ask. Judex tenetur impertiri judicium
suum; and the plea under consideration must not be
stretched so as to interfere with the general principle of
jurisprudence.' And therefore the plea can never be
sustained unless the court is satisfied that there is some
other tribunal, having competent jurisdiction, in which the
case may be tried more suitably for the interests of all the
parties and for the ends of justice... In all these cases there
was one indispensable element present when the court
gave effect to the plea of forum non conveniens, namely,
that the court was satisfied that there was another court in
which the action ought to be tried as being more
convenient for all the parties, and more suitable for the
ends of justice.”
89.The principle has been further explained in the
judgment of House of Lords in Tehrani Vs. Secretary of
State for the Home Department (Scotland)
61
and it has
been stated thus:
“25. The existence of jurisdiction is one matter, the exercise
of the jurisdiction is another... A court will decline to
exercise jurisdiction if there is available an alternative
forum more appropriate for deciding the dispute in
question.”
90.The doctrine of forum non conveniens was also
considered by the U.S. Supreme Court in Gulf Oil
Corporation Vs. Gilbert
62
and it was held that the doctrine
can never apply in a case where there is absence of
jurisdiction. The observations made in the judgment in this
60. (1892) 19 R 665
61. (2006) UKHL 47
62. 330 U.S. 501 (1947)
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regard are as follows:
“The principle of forum non conveniens is simply that a
court may resist imposition upon its jurisdiction even where
jurisdiction is authorised by the letter of a general venue
statute. These statutes are drawn with a necessary
generality and usually give a plaintiff a choice of courts, so
that he may be quite sure of some place in which to pursue
his remedy. But the open door may admit those who seek
not simply justice but perhaps justice blended with some
harassment. A plaintiff sometimes is under temptation to
resort to a strategy of forcing the trial at a most
inconvenient place for an adversary, even at some
inconvenience to himself.”
91.The invocation of the jurisdiction of a High Court
under Article 226 in a case where cause of action wholly or
in part had arisen within its territorial limits even though the
seat of the Government or authority or residence of a person
against whom the direction, order or writ was sought was
not within the said territory was considered in Om Prakash
Srivastava Vs. Union of India and another
63
and the order
of the High Court refusing to consider the writ petition
merely by observing that though it may have jurisdiction but
another High Court may deal with the matter more
effectively, was held to be not a correct way to deal with the
petition and the appeal was disposed of remitting the matter
to the High Court for fresh hearing on merits.
92.The expression "cause of action" in the context of
clause (2) of Article 226 was explained referring to Black's
Law Dictionary, Stroud's Judicial Dictionary and
Halsbury's Laws of England (4
th
Edn.). Reference was also
made to the decisions in Oil and Natural Gas Commission
63. (2006) 6 SCC 207
70
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Vs. Utpal Kumar Basu
11
, Bloom Dekor Ltd. Vs. Subhash
Himatlal Desai
64
, Sadanandan Bhadran Vs. Madhavan
Sunil Kumar
65
, South East Asia Shipping Company
Limited Vs. Nav Bharat Enterprises (P) Ltd.
21
, Rajasthan
High Court Advocates' Association Vs. Union of India
25
,
Gurdit Singh Vs. Munsha Singh
66
, Navinchandra N.
Majithia Vs. State of Maharashtra
27
. The observations
made in the case of Om Prakash Srivastava (supra) in this
regard are as follows:
“7. The question whether or not cause of action wholly or
in part for filing a writ petition has arisen within the
territorial limits of any High Court has to be decided in the
light of the nature and character of the proceedings under
Article 226 of the Constitution. In order to maintain a writ
petition, a writ petitioner has to establish that a legal right
claimed by him has prima facie either been infringed or is
threatened to be infringed by the respondent within the
territorial limits of the Court's jurisdiction and such
infringement may take place by causing him actual injury
or threat thereof.
8. Two clauses of Article 226 of the Constitution on plain
reading give clear indication that the High Court can
exercise power to issue direction, order 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. (See ONGC v. Utpal Kumar Basu (1994) 4 SCC
711).
9. By “cause of action” it is meant 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
11. (1994) 4 SCC 711
64. (1994) 6 SCC 322
65. (1998) 6 SCC 514
21. (1996) 3 SCC 443
25. (2001) 2 SCC 294
66. (1977) 1 SCC 791
27. (2000) 7 SCC 640
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other words, a bundle of facts, which it is necessary for the
plaintiff to prove in order to succeed in the suit. (See
Bloom Dekor Ltd. v. Subhash Himatlal Desai (1994) 6 SCC
322).
10. In a generic and wide sense (as in Section 20 of the
Civil Procedure Code, 1908) “cause of action” means every
fact, which it is necessary to establish to support a right to
obtain a judgment. (See Sadanandan Bhadran v. Madhavan
Sunil Kumar (1998) 6 SCC 514 : 1998 SCC (Cri) 1471).
11. It is settled law that “cause of action” consists of a
bundle of facts, which give cause to enforce the legal
inquiry for redress in a court of law. In other words, it is a
bundle of facts, which taken with the law applicable to
them, gives the plaintiff a right to claim 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
would possibly accrue or would arise. [See South East Asia
Shipping Co. Ltd. v. Nav Bharat Enterprises (P) Ltd. (1996)
3 SCC 443).
12. 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 or the immediate occasion for the reaction. In the
wider sense, it means the necessary conditions for the
maintenance of the suit, including not only the infraction of
the right, but also the infraction coupled with the right
itself. Compendiously, as noted above, 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 in “cause
of action”. (See Rajasthan High Court Advocates' Assn. v.
Union of India (2001) 2 SCC 294).
13. The expression “cause of action” has sometimes been
employed to convey the restricted idea of facts or
circumstances which constitute either the infringement or
the basis of a right and no more. In a wider and more
comprehensive sense, it has been used to denote the whole
bundle of material facts, which a plaintiff must prove in
order to succeed. These are all those essential facts without
the proof of which the plaintiff must fail in his suit. (See
Gurdit Singh v. Munsha Singh (1977) 1 SCC 791).
14. The expression “cause of action” is generally
understood to mean a situation or state of facts that entitles
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a party to maintain an action in a court or a tribunal; a
group of operative facts giving rise to one or more bases of
suing; a factual situation that entitles one person to obtain
a remedy in court from another person (see Black's Law
Dictionary). In Stroud's Judicial Dictionary a “cause of
action” is stated to be the entire set of facts that gives rise
to an enforceable claim; the phrase comprises every fact,
which if traversed, the plaintiff must prove in order to
obtain judgment. In Words and Phrases (4th Edn.) the
meaning attributed to the phrase “cause of action” in
common legal parlance is existence of those facts, which
give a party a right to judicial interference on his behalf.
(See Navinchandra N. Majithia v. State of Maharashtra
[(2000) 7 SCC 640 : 2001 SCC (Cri) 215).
15. In Halsbury's Laws of England (4th Edn.) it has been
stated as follows:
“ ‘Cause of action’ has been defined as meaning
simply a factual situation, the existence of which
entitles one person to obtain from the court a remedy
against another person. The phrase has been held
from earliest time to include every fact which is
material to be proved to entitle the plaintiff to
succeed, and every fact which a defendant would
have a right to traverse. ‘Cause of action’ has also
been taken to mean that a particular act on the part
of the defendant which gives the plaintiff his cause of
complaint, or the subjectmatter of grievance
founding the action, not merely the technical cause
of action."
93.The Supreme Court in the aforementioned case of Om
Prakash Srivastava while remitting the matter to the High
Court made the following observations:
“18. In the instant case the High Court has not dealt
with the question as to whether it had jurisdiction to
deal with the writ petition. It only observed that the
Delhi High Court may have jurisdiction, but the issues
relating to conditions of prisoners in the State of U.P.
can be more effectively dealt with by the Allahabad
High Court. As noted supra, there were two grievances
by the appellant. But only one of them i.e. the alleged
lack of medical facilities has been referred to by the
High Court. It was open to the Delhi High Court to say
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that no part of the cause of action arose within the
territorial jurisdiction of the Delhi High Court. The
High Court in the impugned order does not say so. On
the contrary, it says that jurisdiction may be there, but
the Allahabad High Court can deal with the matter
more effectively. That is not certainly a correct way to
deal with the writ petition. Accordingly, we set aside
the impugned order of the High Court and remit the
matter to it for fresh hearing on merits...”
94.The law with regard to determination of the territorial
jurisdiction of a High Court again came to be analysed in
Alchemist Limited and another Vs. State Bank of Sikkim
and others
67
, and taking note of the amendment of
Article 226 in the year 1963, wherein accrual of cause of
action had been made an additional ground to confer
jurisdiction on the High Court under Article 226, it was held,
that after 1963, cause of action is relevant and germane for
determination of the jurisdiction of a High Court under
Article 226 and that a writ petition could now be instituted
in the High Court within territorial jurisdiction of which,
cause of action, in whole or in part, arises.
95.Explaining the meaning of “cause of action”, it was
further held, that, in a particular case, whether facts averred
by the writ petitioner constitute a part of cause of action, has
to be determined, on the basis of question whether such facts
constitute a material, essential or integral part of the cause
of action, and in determining the said question, the
substance of the matter and not the form thereof has to be
considered. The observations made in the judgment are as
follows:
67. (2007) 11 SCC 335
74
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“16. It may be stated that by the Constitution (Fortysecond
Amendment) Act, 1976, Clause (1A) was renumbered as
Clause (2). The underlying object of amendment was
expressed in the following words:
“Under the existing Article 226 of the Constitution,
the only High Court which has jurisdiction with
respect to the Central Government is the Punjab High
Court. This involves considerable hardship to
litigants from distant places. It is, therefore, proposed
to amend Article 226 so that when any relief is
sought against any Government, authority or person
for any action taken, the High Court within whose
jurisdiction the cause of action arises may also have
jurisdiction to issue appropriate directions, orders or
writs.”
The effect of the amendment was that the accrual of cause
of action was made an additional ground to confer
jurisdiction on a High Court under Article 226 of the
Constitution.
17. As Joint Committee observed:
“This clause would enable the High Court within
whose jurisdiction the cause of action arises to issue
directions, orders or writs to any Government,
authority or person, notwithstanding that the seat of
such Government or authority or the residence of
such person is outside the territorial jurisdiction of
the High Court. The Committee feels that the High
Court within whose jurisdiction the cause of action
arises in part only should also be vested with such
jurisdiction.”
18. The legislative history of the constitutional provisions,
therefore, makes it clear that after 1963, cause of action is
relevant and germane and a writ petition can be instituted
in a High Court within the territorial jurisdiction of which
cause of action in whole or in part arises.
19. The question for our consideration is as to whether the
assertion of the appellant is well founded that a part of
cause of action can be said to have arisen within the
territorial jurisdiction of the High Court of Punjab and
Haryana. Whereas, the appellant Company submits that a
part of cause of action had arisen within the territorial
jurisdiction of that Court, the respondents contend
otherwise.
20. It may be stated that the expression “cause of action”
has neither been defined in the Constitution nor in the
75
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Code of Civil Procedure, 1908. It may, however, be
described as a bundle of essential facts necessary for the
plaintiff to prove before he can succeed. Failure to prove
such facts would give the defendant a right to judgment in
his favour. Cause of action thus gives occasion for and
forms the foundation of the suit.
21. The classic definition of the expression “cause of action”
is found in Cooke v. Gill (1873) 8 CP 107 wherein Lord
Brett observed:
“ ‘Cause of action’ 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.”
22. For every action, there has to be a cause of action. If
there is no cause of action, the plaint or petition has to be
dismissed.
23. Mr Soli J. Sorabjee, Senior Advocate appearing for the
appellant Company placed strong reliance on A.B.C.
Laminart (P) Ltd. v. A.P. Agencies (1989) 2 SCC 163 and
submitted that the High Court had committed an error of
law and of jurisdiction in holding that no part of cause of
action could be said to have arisen within the territorial
jurisdiction of the High Court of Punjab and Haryana. He
particularly referred to the following observations: (SCC p.
170, para 12)
“12. 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 a 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. It does not
comprise evidence necessary to prove such facts, but
every fact necessary for the plaintiff to prove to
enable him to obtain a decree. Everything which if
not proved would give the defendant a right to
immediate judgment must be part of the cause of
action. But it 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.”
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24. In our opinion, the High Court was wholly justified in
upholding the preliminary objection raised by the
respondents and in dismissing the petition on the ground of
want of territorial jurisdiction.
25. The learned counsel for the respondents referred to
several decisions of this Court and submitted that whether
a particular fact constitutes a cause of action or not must be
decided on the basis of the facts and circumstances of each
case. In our judgment, the test is whether a particular
fact(s) is (are) of substance and can be said to be material,
integral or essential part of the lis between the parties. If it
is, it forms a part of cause of action. If it is not, it does not
form a part of cause of action. It is also well settled that in
determining the question, the substance of the matter and
not the form thereof has to be considered.
26. In Union of India v. Oswal Woollen Mills Ltd. (1984) 2
SCC 646 the registered office of the Company was situated
at Ludhiana, but a petition was filed in the High Court of
Calcutta on the ground that the Company had its branch
office there. The order was challenged by the Union of
India. And this Court held that since the registered office of
the Company was at Ludhiana and the principal
respondents against whom primary relief was sought were
at New Delhi, one would have expected the writ petitioner
to approach either the High Court of Punjab and Haryana
or the High Court of Delhi. The forum chosen by the writ
petitioners could not be said to be in accordance with law
and the High Court of Calcutta could not have entertained
the writ petition.
27. In State of Rajasthan v. Swaika Properties (1985) 3 SCC
217 the Company whose registered office was at Calcutta
filed a petition in the High Court of Calcutta challenging
the notice issued by the Special Town Planning Officer,
Jaipur for acquisition of immovable property situated in
Jaipur. Observing that the entire cause of action arose
within the territorial jurisdiction of the High Court of
Rajasthan at Jaipur Bench, the Supreme Court held that the
High Court of Calcutta had no territorial jurisdiction to
entertain the writ petition.
28. This Court held that mere service of notice on the
petitioner at Calcutta under the Rajasthan Urban
Improvement Act, 1959 could not give rise to a cause of
action unless such notice was “an integral part of the cause
of action”.
29. In ONGC v. Utpal Kumar Basu (1994) 4 SCC 711 this
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Court held that when the Head Office of ONGC was not
located at Calcutta, nor the execution of contract work was
to be carried out in West Bengal, territorial jurisdiction
cannot be conferred on the High Court of Calcutta on the
ground that an advertisement had appeared in a daily (The
Times of India), published from Calcutta, or the petitioner
submitted his bid from Calcutta, or subsequent
representations were made from Calcutta, or fax message
as to the final decision taken by ONGC was received at
Calcutta inasmuch as neither of them would constitute an
“integral part” of the cause of action so as to confer
territorial jurisdiction on the High Court of Calcutta under
Article 226(2) of the Constitution.
30. In CBI, AntiCorruption Branch v. Narayan Diwakar
(1999) 4 SCC 656, A was posted in Arunachal Pradesh. On
receiving a wireless message through Chief Secretary of the
State asking him to appear before CBI Inspector in Bombay,
A moved the High Court of Guwahati for quashing FIR filed
against him by CBI. An objection was raised by the
department that the High Court of Guwahati had no
territorial jurisdiction to entertain the writ petition. But it
was turned down. The Supreme Court, however, upheld
the objection that Gauhati High Court could not have
entertained the petition.
31. In Union of India v. Adani Exports Ltd. (2002) 1 SCC
567 a question of territorial jurisdiction came up for
consideration. A filed a petition under Article 226 of the
Constitution in the High Court of Gujarat claiming benefit
of the Passport Scheme under the EXIM policy. Passport
was issued by Chennai Office. Entries in the passport were
made by the authorities at Chennai. None of the
respondents was stationed within the State of Gujarat. It
was, therefore, contended that the Gujarat High Court had
no territorial jurisdiction to entertain the petition. The
contention, however, was negatived and the petition was
allowed. The respondents approached the Supreme Court.
32. The judgment of the High Court was sought to be
supported inter alia on the grounds that (i) A was carrying
on business at Ahmedabad; (ii) orders were placed from
and executed at Ahmedabad; (iii) documents were sent
and payment was made at Ahmedabad; (iv) credit of duty
was claimed for export handled from Ahmedabad; (v)
denial of benefit adversely affected the petitioner at
Ahmedabad; (vi) A had furnished bank guarantee and
executed a bond at Ahmedabad, etc.
33. Allowing the appeal and setting aside the order of the
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High Court, the Supreme Court held that none of the facts
pleaded by A constituted a cause of action.
“Facts which have no bearing with the lis or the
dispute involved in the case, do not give rise to a
cause of action so as to confer territorial jurisdiction
on the court concerned.” (Adani Exports Ltd. case
(2002) 1 SCC 567, SCC pp. 57374, para 17.)
34. In Kusum Ingots & Alloys Ltd. v. Union of India (2004) 6
SCC 254 the appellant was a Company registered under the
Companies Act having its head office at Mumbai. It
obtained a loan from the Bhopal Branch of State Bank of
India. The Bank issued a notice for repayment of loan from
Bhopal under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act,
2002. The appellant Company filed a writ petition in the
High Court of Delhi which was dismissed on the ground of
lack of territorial jurisdiction. The Company approached
this Court and contended that as the constitutionality of a
parliamentary legislation was questioned, the High Court of
Delhi had the requisite jurisdiction to entertain the writ
petition.
35. Negativing the contention and upholding the order
passed by the High Court, this Court ruled that passing of a
legislation by itself does not confer any such right to file a
writ petition in any court unless a cause of action arises
therefor. The Court stated: (Kusum Ingots case (2004) 6
SCC 254, SCC p. 261, para 20)
“20. A distinction between a legislation and executive
action should be borne in mind while determining
the said question.”
Referring to ONGC (1994) 4 SCC 711, it was held that all
necessary facts must form an “integral part” of the cause of
action. The fact which is neither material nor essential nor
integral part of the cause of action would not constitute a
part of cause of action within the meaning of Clause (2) of
Article 226 of the Constitution.
36. In National Textile Corpn. Ltd. v. Haribox Swalram
(2004) 9 SCC 786 referring to earlier cases, this Court
stated that: (SCC p. 797, para 12.1)
“12.1. …the mere fact that the writ petitioner carries
on business at Calcutta or that the reply to the
correspondence made by it was received at Calcutta
is not an integral part of the cause of action and,
therefore, the Calcutta High Court had no
jurisdiction to entertain the writ petition and the
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view to the contrary taken by the Division Bench
cannot be sustained.”
37. From the aforesaid discussion and keeping in view the
ratio laid down in a catena of decisions by this Court, it is
clear that for the purpose of deciding whether facts averred
by the appellantpetitioner would or would not constitute a
part of cause of action, one has to consider whether such
fact constitutes a material, essential, or integral part of the
cause of action. It is no doubt true that even if a small
fraction of the cause of action arises within the jurisdiction
of the court, the court would have territorial jurisdiction to
entertain the suit/petition. Nevertheless it must be a “part
of cause of action”, nothing less than that.”
96.An interesting question with regard to the territorial
jurisdiction of the High Court arose in Ambica Industries
Vs. Commissioner of Central Excise
26
, which was a case
where the appellant carried on business at Lucknow and was
assessed at that place whereafter the matter came up before
the Customs Excise and Service Tax Appellate Tribunal
(CESTAT), New Delhi, which had been exercising territorial
jurisdiction over U.P., N.C.T. of Delhi and Maharashtra. An
appeal came to be filed subsequently under Section 35G of
the Central Excise Act, 1944, before the Delhi High Court,
which was turned down on the ground of territorial
jurisdiction. In appeal, before the Supreme Court, it was
contended that the order of the first appellate court being a
decree, a second appeal would lie before the High Court to
which it was subordinate, and in view thereof the High Court
had erred in arriving at the conclusion that it had no
territorial jurisdiction in the matter. On behalf of the
Revenue, it was urged that the situs of the assessing officer
and not situs of the Tribunal would be the determinative
26. (2007) 6 SCC 769
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factor in that regard.
97.Dismissing the appeals, it was held, that CESTAT, New
Delhi, was exercising jurisdiction over three states. In all the
three states, there are High Courts and in the event the
aggrieved person is treated to be the dominus litis, as a result
whereof, he elects to file the appeal before one or the other
High Court, the decision of the High Court shall be binding
only on the authorities which are within its jurisdiction, and
it would only be of persuasive value on the authorities
functioning under a different jurisdiction, which may lead to
a sort of judicial anarchy.
98.It was noted that in a particular case, an assessee, may
invoke the jurisdiction of a High Court of his choice to take
advantage of the law laid down by it which might suit him.
99.Furthermore, it was also taken note of that when an
appeal is provided under a statute, Parliament must have
thought of one High Court. It is a different matter that by
way of necessity a Tribunal may have to exercise jurisdiction
of over several States but it does not appeal to any reason
that Parliament intended, despite providing for an appeal
before the High Court, that appeals may be filed before
different High Courts at the sweet will of the party aggrieved
by the decision of the Tribunal. It was therefore held that in
a case of this nature the “cause of action” doctrine may not
be invoked.
100.In terms of Article 226(2), a High Court would have
the power to issue a writ of certiorari in respect of orders
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passed by subordinate courts within its territorial jurisdiction
or if any cause of action had arisen therewithin but the same
tests could not be applied when the appellate court exercises
a jurisdiction over a tribunal situated in more than one State.
In such a situation, the High Court in the State where the
first court is located should be considered to be the
appropriate appellate authority.
101.The Hon'ble Bench held that doctrine of dominus litis
and doctrine of situs of the appellate tribunal do not go
together inasmuch as dominus litis indicates that the suitor
has more than one option, whereas the situs of an appellate
tribunal refers to only one High Court wherein the appeal
could be preferred. It was noticed that the situs of a Tribunal
may vary from time to time and the question whether its
jurisdiction would be extending to three States or more or
less would depend upon the executive order which may be
issued. In such circumstances, determination of the
jurisdiction of a High Court should be considered only on the
basis of the statutory provisions and not anything else. In
case the cause of action doctrine was given effect to,
invariably more than one High Court may have jurisdiction,
which would not be contemplated.
102.The scope of Article 226(2) was again considered in
Rajendran Chingaravelu Vs. R.K. Mishra, Additional
Commissioner of Income Tax and others
68
and it was held
that as per clause (2) of Article 226 even if a small fraction
of cause of action i.e. the bundle of facts which gives the
68. (2010) 1 SCC 457
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petitioner a right to sue accrued within the territories of the
State, the High Court of that State would have jurisdiction.
The observations made in the judgment are as follows:
“9. The first question that arises for consideration is
whether the Andhra Pradesh High Court was justified in
holding that as the seizure took place at Chennai (Tamil
Nadu), the appellant could not maintain the writ petition
before it. The High Court did not examine whether any part
of cause of action arose in Andhra Pradesh. Clause (2) of
Article 226 makes it clear that the High Court exercising
jurisdiction in relation to the territories within which the
cause of action arises wholly or in part, will have
jurisdiction. This would mean that even if a small fraction
of the cause of action (that bundle of facts which gives a
petitioner, a right to sue) accrued within the territories of
Andhra Pradesh, the High Court of that State will have
jurisdiction. In this case, the genesis for the entire episode
of search, seizure and detention was the action of the
security/ intelligence officials at Hyderabad Airport (in
Andhra Pradesh) who having inspected the cash carried by
him, alerted their counterparts at the Chennai Airport that
appellant was carrying a huge sum of money, and required
to be intercepted and questioned. A part of the cause of
action therefore clearly arose in Hyderabad. It is also to be
noticed that the consequential income tax proceedings
against him, which he challenged in the writ petition, were
also initiated at Hyderabad. Therefore, his writ petition
ought not to have been rejected on the ground of want of
jurisdiction.”
103.The parameters for invocation of jurisdiction of High
Court under Article 226 against an authority or person
residing outside its territorial jurisdiction in a case where a
cause of action wholly or partly arises within the territorial
jurisdiction of a High Court was considered in the case of
Nawal Kishore Sharma Vs. Union of India
5
and referring to
the provisions of clause (2) the Court held that it was clear
that the High Court can issue a writ where a person or
authority against whom the writ is issued is located outside
5. (2014) 9 SCC 329
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its territorial jurisdiction, if the cause of action wholly or
partially arises within the Court’s territorial jurisdiction.
104.The expression “cause of action” for the purpose of
Article 226(2), for all intents and purposes, was held to have
the same meaning as envisaged under Section 20(c) CPC.
The observations made in the judgment in the case of Nawal
Kishore Sharma are as follows:
“9. …On a plain reading of the amended provisions in
clause (2), it is clear that now the High Court can issue a
writ when the person or the authority against whom the
writ is issued is located outside its territorial jurisdiction, if
the cause of action wholly or partially arises within the
court's territorial jurisdiction. Cause of action for the
purpose of Article 226(2) of the Constitution, for all intent
and purpose must be assigned the same meaning as
envisaged under Section 20(c) of the Code of Civil
Procedure. The expression cause of action has not been
defined either in the Code of Civil Procedure or the
Constitution. Cause of action is bundle of facts which is
necessary for the plaintiff to prove in the suit before he can
succeed. The term “cause of action” as appearing in clause
(2) came up for consideration time and again before this
Court.
10. In State of Rajasthan v. Swaika Properties (1985) 3 SCC
217, the fact was that the respondent Company having its
registered office in Calcutta owned certain land on the
outskirts of Jaipur City, was served with notice for
acquisition of land under the Rajasthan Urban
Improvement Act, 1959. Notice was duly served on the
Company at its registered office in Calcutta. The Company,
first appeared before the Special Court and finally the
Calcutta High Court by filing a writ petition challenging the
notification of acquisition. The matter ultimately came
before this Court to answer a question as to whether the
service of notice under Section 52(2) of the Act at the
registered office of the respondent in Calcutta was an
integral part of cause of action and was it sufficient to
invest the Calcutta High Court with a jurisdiction to
entertain the petition challenging the impugned
notification. Answering the question this Court held:
(Swaika Properties case, SCC pp. 22223, paras 78)
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“7. Upon these facts, we are satisfied that the cause
of action neither wholly nor in part arose within the
territorial limits of the Calcutta High Court and
therefore the learned Single Judge had no
jurisdiction to issue a rule nisi on the petition filed by
the respondents under Article 226 of the Constitution
or to make the ad interim ex parte prohibitory order
restraining the appellants from taking any steps to
take possession of the land acquired. Under sub
section (5) of Section 52 of the Act the appellants
were entitled to require the respondents to surrender
or deliver possession of the lands acquired forthwith
and upon their failure to do so, take immediate steps
to secure such possession under subsection (6)
thereof.
8. The expression ‘cause of action’ is tersely defined
in Mulla's Code of Civil Procedure:
‘The “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 a bundle of facts which taken
with the law applicable to them gives the plaintiff a
right to relief against the defendant. The mere
service of notice under Section 52(2) of the Act on
the respondents at their registered office at 18B,
Brabourne Road, Calcutta i.e. within the territorial
limits of the State of West Bengal, could not give rise
to a cause of action within that territory unless the
service of such notice was an integral part of the
cause of action. The entire cause of action
culminating in the acquisition of the land under
Section 52(1) of the Act arose within the State of
Rajasthan i.e. within the territorial jurisdiction of the
Rajasthan High Court at the Jaipur Bench. The
answer to the question whether service of notice is
an integral part of the cause of action within the
meaning of Article 226(2) of the Constitution must
depend upon the nature of the impugned order
giving rise to a cause of action. The Notification
dated 821984 issued by the State Government
under Section 52(1) of the 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 respondents to plead the service
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of notice on them by the Special Officer, Town
Planning Department, Jaipur 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. If the respondents
felt aggrieved by the acquisition of their lands situate
at Jaipur and wanted to challenge the validity of the
notification issued by the State Government of
Rajasthan under Section 52(1) of the Act by a
petition under Article 226 of the Constitution, the
remedy of the respondents for the grant of such relief
had to be sought by filing such a petition before the
Rajasthan High Court, Jaipur Bench, where the cause
of action wholly or in part arose.”
11. This provision was again considered by this Court in Oil
and Natural Gas Commission v. Utpal Kumar Basu (1994) 4
SCC 711. In this case the petitioner Oil and Natural Gas
Commission (ONGC) through its consultant Engineers
India Limited (EIL) issued an advertisement in the
newspaper inviting tenders for setting up of Kerosene
Recovery Processing Unit in Gujarat mentioning that the
tenders containing offers were to be communicated to EIL,
New Delhi. After the final decision was taken by the
Steering Committee at New Delhi, the respondent NICCO
moved the Calcutta High Court praying that ONGC be
restrained from awarding the contract to any other party. It
was pleaded in the petition that NICCO came to know of the
tender from the publication in the Times of India within the
jurisdiction of the Calcutta High Court. This Court by
setting aside the order passed by the Calcutta High Court
came to the following conclusion: (Utpal Kumar Basu case,
SCC p. 717, para 6)
“6. 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
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the Calcutta High Court had jurisdiction to entertain
and decide the writ petition in question even on the
facts alleged must depend upon whether the
averments made in paras 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.”
105.Referring to the judgment in the case of Kusum
Ingots, Adani Exports Ltd., Om Prakash Srivastava and
Rajendran Chingravelu (supra) the Court held that there
cannot be any doubt that a question whether or not cause of
action wholly or in part for filing a writ petition has arisen
within the territorial limits of any High Court has to be
decided in the light of the nature and character of the
proceedings under Article 226 of the Constitution.
106.Having regard to the foregoing discussion we may
proceed to restate the position of law with regard to the
scope of territorial jurisdiction of High Courts under Article
226, as interpreted in terms of judicial precedents.
107.Article 226, as we have already noticed, from its
inception, clearly reflected the object of makers of the
Constitution to confer wide powers on the High Courts in
issuing directions or writs for the enforcement of
fundamental rights and also the power to issue directions for
any other purpose. Having decided to provide certain basic
safeguards for the people under the new set up post the
enforcement of the Constitution, it was thought necessary to
provide a quick and inexpensive remedy for the enforcement
of such rights, and, finding that prerogative writs, which the
Courts in England had developed and used whenever urgent
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necessity demanded immediate and decisive interposition,
were suited for the purpose, the High Courts, were conferred
with wide powers of issuing directions, orders or writs
primarily for the enforcement of fundamental rights. In
addition, the power to issue such directions “for any other
purpose” was also included.
108.Article 226 confers extraordinary jurisdiction on the
High Court to issue prerogative writs for enforcement of
fundamental rights or for any other purpose. The
jurisdiction, though is to be based on discretion and
equitable considerations, is wide and expansive with no
fetters having been placed on the exercise of this
extraordinary jurisdiction.
109.The language of Article 226 is couched in a
comprehensive phraseology and it ex facie confers a wide
power on the High Courts to reach injustice wherever it is
found.
110.The nature of the power, its purpose and the person or
authorities against whom it can be exercised, has been
described in a language which gives to the High Court wide
amplitude of powers.
111.The powers conferred on a High Court to issue
prerogative writs, as understood in England, has been
widened by using the expression “in the nature of”, which
indicates that the writs that can be issued by our High
Courts, only draw analogy from the kind in England but the
powers in this regard have a wider expanse.
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112.Article 226(1) grants to the High Courts powers to
issue directions, orders, writs, which would include writs in
the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari. This clearly shows that the powers
of the High Courts to issue directions, orders or writs, would
be inclusive of writs in the nature of prerogative writs, as
understood in England. The conferment of the powers upon
the High Courts to issue writs may thus be seen to be
drawing an analogy from the powers as in England but the
use of the phraseology including writs “in the nature of” does
not stop at merely equating the powers with those in
England but goes beyond giving it a wider expanse. This is
clearly with a view to enable the High Courts to mould the
reliefs to meet the complex ground realities of our country.
113.The jurisdiction conferred on the High Courts under
Article 226, as it originally stood, was very wide with only
two limitations placed upon the exercise of these powers : (i)
that the power is to be exercised throughout the territories in
relation to which it exercises jurisdiction, i.e., the writs
issued by the Court cannot run beyond the territories subject
to its jurisdiction; (ii) that the person or authority to whom
the High Court is empowered to issue the writs must be
within those territories, and as an implication they must be
amenable to the jurisdiction of the Court either by residence
or location within those territories.
114.The concept of cause of action as a basis for exercise of
jurisdiction was not provided for under Article 226, as it
originally stood, as it did not contain any reference to the
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accrual of cause of action or to the jurisdiction of the High
Court depending on the place where the cause of action
accrues being within its territorial jurisdiction. The concept
of cause of action being not included in the express provision
contained under Article 226 which requires that the person
or authority to whom the writ is to be issued should be
resident in or located within the territories over which the
High Court had jurisdiction the possibilities of the resultant
inconvenience to persons residing far away from New Delhi
who could be aggrieved by some order of the Government of
India was judicially noticed keeping in view the wide
amplitude of power conferred upon a High Court under
Article 226 which is not confined only to issuing of writs in
the nature of prerogative writs but also including within its
ambit the powers to issue directions or orders against any
person or authority including in appropriate cases any
Government.
115.The use of the words “any Government" indicated the
intent of framers of the Constitution to include the Union
Government also. The Union Government having no situs in
a particular place is deemed to have functional existence
throughout the country and when in exercise of its power the
Union Government passes an order infringing the legal right
or interest of a person residing within the territories in
relation to which a particular High Court exercises
jurisdiction, it would reasonably be expected of the High
Court to issue a writ to the Union Government, for in law, it
must be deemed to be within that State also.
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116.The hardship faced by the litigants from distant places
in regard to invoking writ jurisdiction against the Central
Government, resulted in amendment of the provision by the
Constitution (Fifteenth) Amendment Act, 1963, in terms
whereof, after clause (1), clause (1A) was inserted in Article
226 (renumbered as clause (2) by the Constitution (Forty
second)
Amendment Act, 1976).
117.The Constitution (Fifteenth) Amendment came into
force on October 5, 1963 with the effect that it made the
accrual of cause of action an additional ground to confer
jurisdiction to a High Court under Article 226. The amended
clause now enabled the High Court within whose jurisdiction
the cause of action arises to issue directions, orders or writs
to any Government, authority or person, notwithstanding
that the seat of such government or authority or the
residence of such person is outside the territorial jurisdiction
of the High Court.
118.The legal position after insertion of clause (1A),
subsequently renumbered as clause (2), is that a writ can be
issued by a High Court against a person, Government or
authority residing within the jurisdiction of that High Court,
or within whose jurisdiction the cause of action in whole or
in part arises.
119.The amended clause did not confer any new
jurisdiction on High Court but provides an additional ground
which extends its jurisdiction beyond the boundaries of the
State if the cause of action arises within its territory. The
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amendment is thus procedural without affecting any
substantive rights of the parties.
120.Consequent to the (Fifteenth) Amendment to the
Constitution, the power conferred on the High Courts under
Article 226 can as well be exercised by any High Court
having jurisdiction in relation to the territories within which
“the cause of action, wholly or in part, arises” and it would
not matter that the seat of the authority concerned is outside
the territorial limits of the jurisdiction of the High Court. The
aim of the Amendment is clearly to widen the width of the
reach of the writs issued by the High Courts.
121.The only difference made by the Constitution
(Fifteenth) Amendment is that the location of the seat of
Government or authority or residence of a person to whom
the writ is to be issued is not to be the sole criteria for
conferring jurisdiction and writs may also issue to
Governments, authorities or persons outside the territory of a
High Court provided the cause of action, in whole or in part,
arises within the limits of its territorial jurisdiction.
122. The change consequent to the amendment is that
location is not the sole criteria and place of cause of action
may also confer jurisdiction. It cannot, however, be
construed that place of cause of action alone would confer
territorial jurisdiction. If it were to be so, it would lead to an
inference that Article 226(2) is not in extension of powers
under Article 226(1) but in annihilation thereof, which
certainly was not the intent of the Constitutional
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Amendment.
123.We may at this juncture again refer to the Statement of
Objects and Reasons of the Constitution (Fifteenth)
Amendment, which reads as follows:
“Under the existing Article 226 of the Constitution, the only
High Court which has jurisdiction with respect to the
Central Government is the Punjab High Court. This involves
considerable hardship to litigants from distant places. It is,
therefore, proposed to amend Article 226 so that when any
relief is sought against any Government, authority or
person for any action taken, the High Court within whose
jurisdiction the cause of action arises may also have
jurisdiction to issue appropriate directions, orders or writs.”
(emphasis supplied)
124.The use of the words “only” and “may also” shows that
the object was not to take away the jurisdiction of the High
Courts which they had prior to the (Fifteenth) Amendment
but to enable other High Courts to also have jurisdiction
provided the cause of action, in whole or in part, arose
within their territorial jurisdiction. Article 226(2) is to be
seen as an extension of or in addition to the jurisdiction
conferred under Article 226(1).
125.We are fortified in taking this view by the observations
made in the treatise Constitutional Law of India by H.M.
Seervai
69
, wherein the effect of the (Fifteenth) Amendment
has been stated in the following words:
“16.251. The newlyadded subArt. (1A) to Art. 226
introduces an additional basis of jurisdiction, namely, the
whole or in part of a cause of action arising within the
jurisdiction of a court. This is clear from the use of the
words, “The power conferred by Clause (1) ... may also be
exercised...” Therefore jurisdiction to issue writs can be
69. Constitutional Law of India by H.M. Seervai : 4th Edn. : Vol. 2, p.1598
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exercised (i) by a court within whose jurisdiction a person
or authority (including, in appropriate cases, any Govt.)
resides or is located, and (ii) also by a court within whose
jurisdiction the cause of action wholly or in part arises,
notwithstanding that the seat of such Govt. or authority or
the residence of such person is not within those territories.”
126.Although in view of Section 141 CPC the provisions
under the Code thereof would not apply to the writ
proceedings, the phraseology used in Section 20(c) CPC and
clause (2) of Article 226, being in pari materia, the principles
with regard to interpretation of Section 20(c) CPC shall
apply to writ proceedings also, and keeping in view the use
of the expression “cause of action” in Article 226(2), even if
a fraction of the cause of action accrues within the
jurisdiction of the Court, the Court would have jurisdiction in
the matter though the doctrine of forum conveniens may also
have to be considered.
127.We may, however, take notice that in contra distinction
to the provisions in Sections 16 to 20 of CPC, under Article
226(2) the invocation of the territorial jurisdiction is
restricted to the existence of a “cause of action”, which
expression would include part or entire cause of action. The
cause of action, or any part thereof, even in its minutest
form, is therefore necessary for invocation of the jurisdiction
under Article 226. If the element of the cause of action, or
any part thereof is absent, the Court may not have territorial
jurisdiction, solely on the basis of the residence of the party.
In terms of Section 20 CPC, a suit could be instituted in a
Court within the local limits of whose jurisdiction, the
defendant, or each of the defendants, actually and
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voluntarily resides, or where the cause of action, wholly or in
part arises. The two factors i.e., the place of residence of the
defendant(s) and the place where the cause of action, wholly
or in part arises, therefore, independently, give a right to the
party to institute a suit in the Court of competent
jurisdiction.
128.The provisions of CPC do not strictly apply to writ
proceedings and only the principles therein may be held to
be applicable. Section 20 of CPC which specifies different
contingencies whereunder jurisdiction is vested in the Court
would, therefore, stricto sensu not be applicable for the
purposes of invocation of the territorial jurisdiction under
Article 226.
129.Article 226 confers upon the High Court power to issue
writs to any person or authority or any Government, within
its territorial jurisdiction, and with the insertion of
clause (1A) subsequently renumbered as clause (2), the said
power may also be exercised in relation to the territories
within which the cause of action, wholly or in part has
arisen, notwithstanding that seat of such Government or
authority or residence of such person is not within those
territories. The use of nonobstante clause under clause (2)
clearly manifests that residence of the party is not a relevant
consideration for determining the territorial jurisdiction
under Article 226.
130.The relief sought by the writ petitioner, though would
be one of the relevant criteria for consideration, but not the
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sole consideration in this regard. The maintainability, or
otherwise, of a writ petition in a High Court would depend
on whether the cause of action for filing the same arose,
wholly or in part, within the territorial jurisdiction of that
Court. The High Court would have jurisdiction if any part of
cause of action arises within the territorial limits of its
jurisdiction even though the seat of the Government or
authority or residence of person against whom direction,
order or writ is sought to be issued is not within the said
territory.
131.The expression “cause of action” has been understood
to be a bundle of facts which are required to be proved. The
entire bundle of facts pleaded, however, need not constitute
a cause of action as what would be necessary to be proved
would be the material facts on the basis of which a writ
petition can be allowed. It may also be considered as a
bundle of essential facts, which it is necessary for the
plaintiff to prove before he can succeed. The Court would be
required to take into consideration all the facts pleaded in
support of the cause of action without embarking upon an
enquiry as to the correctness or otherwise of the said facts.
The facts as pleaded in the petition may be considered, truth
or otherwise whereof being immaterial.
132.In legal parlance the expression “cause of action” is
generally understood to mean a situation or state of facts
that entitles a party to maintain an action in a Court or a
Tribunal; a group of operative facts giving rise to one or
more bases for suing; a factual situation that entitles one
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person to obtain the remedy in Court from another person.
133.The meaning of the expression “cause of action” as
distinct from “right of action”, as evolved in terms of the
precedents, would go to show that a right of action is a
remedial right affording a redress for the infringement of a
legal right and a right of action arises as soon as there is an
invasion of rights whereas a cause of action would refer to
the set of operative facts giving rise to such right of action. A
person residing anywhere in the country being aggrieved by
an order of the Government (Central or State), or authority
or person may have a right of action at law but the same can
be enforced by invoking the jurisdiction under Article 226 of
only that High Court, within whose territorial limits the
cause of action wholly or in part arises.
134.The “right of action” being the right to commence and
maintain an action is therefore distinguishable from “cause
of action” in that the former is a remedial right while the
latter would comprise the operative facts giving rise to such
remedial right. The former would be a matter of right and
would depend upon the substantive law whereas the latter
would be governed by the law of procedure.
135.It is, therefore, seen that a “cause of action” is the fact
or corroboration of facts which affords a party right to
judicial interference on his behalf. The “cause of action”
would be seen to comprise: (i) the plaintiff's primary right
and the defendant's corresponding primary duty; and (ii) the
delict or wrongful act or omission of the defendant, by which
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the primary right and duty have been violated. The term
“right of action” is the right to commence and maintain
action or in other words the right to enforce a cause of
action. In the law of pleadings, “right of action” can be
distinguished from “cause of action” in that the former is a
remedial right while the latter would comprise the operative
facts giving rise to such remedial right. The former would be
a matter of right and depend on the substantive law while
the latter would refer to the bundle of operative facts and
would be governed by the law of procedure.
136.A right of action, may therefore, be said to have arisen
upon the invasion of primary rights of the person residing
anywhere in the country being aggrieved by an act or
omission of the Government or authority or a person, but in
order to enforce the same, the jurisdiction under Article 226
of the Constitution of only that High Court can be invoked,
within whose territorial jurisdiction, on the basis of the
bundle of facts, the cause of action can be said to have arisen
wholly or in part.
137.The question as to whether any particular facts
constitute a cause of action or not has thus to be determined
with reference to the facts of each case taking into
consideration the substance of the matter rather than the
form of action. The cause of action must be antecedent to the
institution of the proceedings and before a petition can be
entertained the petitioner would be required to demonstrate
that one of the essential facts giving rise to the petition has
arisen within the territorial jurisdiction of the High Court.
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138.The powers to issue directions, orders or writs to any
government, authority or person, may be exercised, as per
terms of clause (2) of Article 226, by any High Court
exercising jurisdiction in relation to the territories within
which the cause of action, “wholly or in part”, arises. This
exercise of power, may be made notwithstanding that the
seat of such government or authority or residence of such
person is not within those territories.
139.In determining the objection of lack of territorial
jurisdiction, the Court must, therefore, take all the facts
pleaded in support of the cause of action into consideration
without embarking upon an enquiry as to the correctness or
otherwise of the said facts. The question of territorial
jurisdiction thus must be decided on the facts pleaded in the
petition, the truth or otherwise, whereof being immaterial.
140.It may, however, be added as a caveat that if from the
averments of the petition, as they are, no part of cause of
action can be held to have arisen within the jurisdiction of a
High Court, that High Court cannot assume territorial
jurisdiction on the ground of residence of the petitioner or
the like.
141.The expression “in part” has been held to be
comprehensive and includes within its ambit even an
infinitesimal fraction of cause of action. The expression
“wholly or in part” used under clause (2) of Article 226
would therefore be referable entirely to the facts stated and
the grounds set forth in the petition as the cause of action
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has no relation to the defence set up or the objection raised
by the opposite party.
142.In order to invest the High Court with jurisdiction to
entertain a petition under Article 226, the transaction in
question must be an integral part of the cause of action
which must arise within its territorial jurisdiction, and would
depend upon the facts of the case and the nature of the order
impugned giving rise to the cause of action.
143.Notice may also be had to the fact that Article 226(1)
begins with a nonobstante clause and in terms thereof 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, for the enforcement of any other rights conferred by
Part III or for any other purpose. In terms of clause (2) of
Article 226 the power conferred by clause (1) may be
exercised by the High Court 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.
144.A plain reading of the two clauses of Article 226 makes
it 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
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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.
145.Article 226(1) states that every High Court shall have
power, throughout the territorial jurisdiction in relation to
which it exercises jurisdiction, to issue directions, orders or
writs to any person or authority, including in appropriate
cases, any Government, within those territories. The powers
so conferred under Article 226(1) have been further
amplified with the insertion of clause (1A), subsequently
renumbered as clause (2), which provides that the powers
conferred under clause (1) may also be exercised by the
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 powers, notwithstanding
that the seat of such Government or authority or the
residence of such person is not within those territories. It
provides an expansion to the normal rule of the respondent
being sued at his place of residence by providing for exercise
of jurisdiction “notwithstanding that the seat of such
Government or authority or the residence of such person is
not within those territories”. The nonobstante clause
appearing under clause (2) thus enlarges the scope of
jurisdiction which is primarily founded on the ground of
cause of action.
146.We may therefore observe that Article 226(1) provides
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the source of power of the High Court as well as its
territorial jurisdiction, whereas Article 226(2) amplifies the
jurisdiction in relation to a cause of action by providing that
the territorial jurisdiction would be exercisable in relation to
the territories within which the cause of action, arises,
wholly or in part. The cause of action would include material
and integral facts and accrual of even a fraction of cause of
action within the jurisdiction of the Court would provide
territorial jurisdiction for entertaining the petition.
147.The territorial jurisdiction is to be decided on the facts
pleaded in the petition and in determining the objection of
lack of territorial jurisdiction the Court would be required to
take into consideration all the facts pleaded in support of the
cause of action without embarking upon an enquiry as to the
correctness or otherwise of the said facts. The question
whether a High Court has territorial jurisdiction to entertain
a writ petition is to be answered on the basis of the
averments made in the petition, the truth or otherwise,
whereof being immaterial. The expression “cause of action”,
for the purpose of Article 226(2), is to be assigned the same
meaning as under Section 20(c) CPC, and would mean a
bundle of facts which are required to be proved. However,
the entire bundle of facts pleaded, need not constitute a
cause of action as what is necessary to be proved are
material facts on the basis of which a writ petition can be
allowed.
148.In order to confer jurisdiction on the High Court to
entertain a writ petition, the Court must be satisfied from the
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entire facts pleaded in support of the cause of action that
those facts constitute a cause so as to empower the Court to
decide a dispute which has, at least in part, arisen within its
jurisdiction. Each and every fact pleaded in the application
may not ipso facto lead to the conclusion that those facts give
rise to a cause of action within the Court's territorial
jurisdiction unless those facts are such which have a nexus or
relevance with the lis that is involved in the case. Facts,
which have no bearing with the lis or the dispute involved in
the case would not give rise to a “cause of action” so as to
confer territorial jurisdiction on the Court concerned, and
only those facts which give rise to a cause of action within a
Court's territorial jurisdiction which have a nexus or
relevance with the lis that is involved in that case, would be
relevant for the purpose of invoking the Court's territorial
jurisdiction, in the context of clause (2) of Article 226.
149.The situs of the office of the respondent would not be
relevant for the purposes of territorial jurisdiction in the
context of Article 226(2), and a place where appellate or
revisional order is passed may give rise to a part of the cause
of action although the original order was made at a place
outside the said area, and a writ petition would be
maintainable in the High Court within whose jurisdiction it is
situate, having regard to the fact that the order of the
appellate authority may also be required to be set aside since
the order of the original authority has merged with that of
the appellate authority. In such cases, where a part of a
cause of action arises within one or the other High Court, it
would be for the litigant who is the dominus litis to have his
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forum conveniens. In such cases, it would not be wholly
correct to say that the litigant chooses a particular Court; the
choice, would be by reason of the jurisdiction of the Court
being attracted by part of cause of action arising within the
jurisdiction of that Court, and it would ultimately be upon
the Court to find out in each case whether the jurisdiction of
the Court is rightly attracted by the alleged cause of action.
150. The doctrine of forum conveniens can be invoked only
where the Court having jurisdiction decides not to exercise
jurisdiction by invoking the doctrine forum conveniens. The
invocation of doctrine of forum conveniens or forum non
conveniens presupposes that the Court refusing to entertain
a case on the basis of this doctrine, otherwise has
jurisdiction. The argument of forum non conveniens cannot
be raised in conjunction with the argument of lack of
jurisdiction or forum non competens. The doctrine would be
available only in a case where although the Court has
jurisdiction but an adequate alternative forum is also
available.
151.It may also be added that where a small fraction of
cause of action accrues within the jurisdiction of a Court,
although it may have jurisdiction in the matter, but the same
by itself may not be considered to be a determinative factor
compelling the Court to decide the matter on merits and in
appropriate cases the Court may refuse to exercise its
discretionary jurisdiction by invoking the doctrine of forum
conveniens.
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152.The question whether or not cause of action, wholly or
in part, has arisen within the territorial limits of any High
Court is to be decided in the light of the nature and character
of the proceedings and in order to maintain the writ petition,
the petitioner would be required to establish that the legal
right claimed by him has prima facie either been infringed or
is threatened to be infringed by the respondent within the
territorial limits of the Court's jurisdiction causing him actual
injury or threat thereof.
153.The accrual of cause of action having been made an
additional ground to confer jurisdiction on the High Court
after the Constitution (Fifteenth) Amendment, cause of
action would be a relevant and germane factor for
determination of the jurisdiction of a High Court under
Article 226 and a writ petition can be instituted in a High
Court, within territorial jurisdiction of which, cause of
action, in whole or in part, arises.
154.As to whether the facts averred by the writ petitioner,
in a particular case, constitute a part of cause of action, has
to be determined, on the basis of the test whether such facts
constitute a material, essential or integral part of the lis
between the parties; if it is, it forms a part of cause of action
and if it is not, it does not form a part of cause of action. In
determining the said question the substance of the matter
and not the form thereof has to be considered, and even if a
small fraction of cause of action arises within the jurisdiction
of the Court, it would have territorial jurisdiction to
entertain the petition.
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155.In dealing with the cases relating to forces operating
under special statutes, as is the case from which the present
reference has arisen which pertains to the C.R.P.F. Act, we
may take notice of the fact that these special statutes have an
inbuilt provision for filing statutory appeals/revisions and
representations. In the event the statutory
appellate/revisional authority is located beyond the
territorial jurisdiction of the Court and the petitioner has
availed such remedies, the jurisdiction of the Court cannot
be invoked on the ground that the head office of the
department is located within the jurisdiction of the Court.
From a practical stand point also, this would be a more
acceptable view for the reason that records of all the
authorities whose jurisdiction might have been invoked
during the pendency of departmental proceedings would be
available at the offices of the authorities, which would be
beyond the territorial limits of the Court.
156.The intent of the Parliament to grant territorial
jurisdiction to the High Court within whose jurisdiction the
entire or part of cause of action has arisen may be seen to
have a nexus to the expeditious disposal of the proceedings.
The exercise of jurisdiction under Article 226 would, in our
view, take within its ambit remedies which are effective and
efficacious.
157.Keeping in mind the objective of expeditious disposal
of the proceedings and the need to balance the convenience
between the parties to the lis it may be appropriate for the
Courts to determine the question of jurisdiction at the very
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threshold. The doctrine of forum conveniens may be
considered while determining the issue of jurisdiction. The
petitioner no doubt is the dominus litis but the rights in this
regard would be subject to the law of jurisdiction. In a case
where the necessary ingredients of the territorial jurisdiction
are not satisfied the Court may not assume jurisdiction
merely on the ground of the residence. The doctrine of
forum conveniens and forum non conveniens would be a
relevant factor for the Court to examine whether the claim
should or should not be entertained for the reason that there
is another forum which is more appropriate. This doctrine
would, however, not be the determinative factor and in a
case where no fraction or even an infinitesimal part of the
cause of action as arisen within its territorial limits the
jurisdiction of the Court may not be invoked.
158.The aforementioned propositions broadly set out the
contours with regard to the position of law in respect of the
territorial jurisdiction of the High Courts under Article 226 of
the Constitution of India. We may add that though an
attempt has been made to cover the expanse of the
precedents which are available, the discussion in the
preceding paragraphs, is by no means exhaustive, in view of
wide expanse of the scope and the varying interpretations
rendered by the Courts keeping in view the complexities
which arise in the interpretation of the scope of the writ
jurisdiction of the High Courts.
159.We may now come back to the question referred to this
Bench, which is in the following terms:
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“whether the observations of the Supreme Court in the case
of Nawal Kishore Sharma (supra) in paragraph 17 can be
said to be a binding precedent on this Court to entertain
the above writ petitions or whether the observations of
paragraph 17 were in the peculiar facts and circumstances
of the case of Nawal Kishore Sharma (supra) in view of
paragraphs 18 and 19 of the said judgment?
OR
In the alternative whether the judgment of the Full Bench
in Rajendra Kumar Mishra (supra) and Constable Lalji
Pandey (supra) can be said to still lay down the correct law
in view of the judgment of the Supreme Court in Nawal
Kishore Sharma (supra)?”
160.Insofar as the question regarding the observations
made in paragraph 17 of the judgment in the case of Nawal
Kishore Sharma, we may state that a judgment is required
to be read in its entirety in order to understand the facts on
which the decision was given and to appreciate the ratio of
the judgment and the law laid down.
161.In the case of Nawal Kishore Sharma, the question
which had fallen for consideration before the Supreme Court
was as to whether in the facts of the case, the High Court
was correct in taking the view that it had no jurisdiction to
entertain the writ petition.
162.While considering the aforesaid question, the Court
noticed the provisions under clause (1A) inserted in Article
226 by the Constitution (Fifteenth) Amendment Act, 1963,
subsequently renumbered as clause (2) by the Constitution
(Fortysecond) Amendment Act, 1976, and held that on a
plain reading of the amended provisions in clause (2), it was
clear that the High Court could now issue a writ when the
person or the authority against whom the writ is issued is
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located outside its territorial jurisdiction, if the cause of
action wholly or partially arises within the Court’s territorial
jurisdiction. It was stated that cause of action for the purpose
of Article 226(2), for all intent and purpose must be assigned
the same meaning as envisaged under Section 20(c) of the
CPC. It was also taken note of that the expression “cause of
action” having not been defined either in the Code of Civil
Procedure or the Constitution, the same would be referable
to a bundle of facts which is necessary for the plaintiff to
prove in the suit before he can succeed.
163.Referring to the decisions on the point it was observed
that in order to confer jurisdiction on a High Court to
entertain a writ petition it must disclose that the integral
facts pleaded in support of the cause of action do constitute a
cause so as to empower the Court to decide the dispute and
the entire or part of it arose within its jurisdiction. It was
also taken note of that each and every fact pleaded by the
respondents in their application does not ipso facto lead to
the conclusion that those facts give rise to a cause of action
within the Court’s territorial jurisdiction unless those facts
are such which have a nexus or relevance with the lis
involved in the case.
164.The Supreme Court in the judgment of Nawal Kishore
Sharma, upon an extensive discussion based on the earlier
precedents, held that there could not be any doubt that the
question whether or not cause of action wholly or in part for
filing the writ petition has arisen within the territorial limit
of any High Court has to be decided in the light of the nature
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and character of the proceedings under Article 226 of the
Constitution, and in order to maintain a writ petition the
petitioner has to establish that a legal right claimed by him
has been infringed by the respondents within the territorial
limit of the Court's jurisdiction. It was thereafter that the
judgment, in paragraph 17, refers to the facts of the case,
and records its conclusion that upon a consideration of all
the facts together, a part of fraction of cause of action had
arisen within the jurisdiction of the High Court in question.
165.It is therefore seen that though the observations made
in the judgment in the case of Nawal Kishore Sharma, in
paragraph 17, were on the facts of the case, the ratio of the
judgment and the law laid down, is to be culled out upon
reading the judgment in its entirety, and the observations
made in its paragraphs, which we have referred to above.
166.As regards the alternative question posed in the
referring order as to whether the judgment of the Full Bench
in Rajendra Kumar Mishra and the judgment in the
Constable Lalji Pandey can be said to still lay down the
correct law in view of the judgment of the Supreme Court in
Nawal Kishore Sharma, we may take notice of the fact that
the question considered by the Full Bench was as to whether
the Court had jurisdiction to decide the petition at hand, and
based on the facts of the case, it had expressed a view that
since no part of the cause of action in the case had arisen in
State of Uttar Pradesh the writ petition was not maintainable
before the Court.
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167.As we have noticed earlier, the judgment in the case of
Constable Lalji Pandey was in respect of a Constable in the
Central Reserve Police Force posted at Hyderabad, had
absented himself without leave, and therefore the
departmental proceedings were conducted against him and
an order of dismissal was passed. The appeal and revision
filed thereagainst were also rejected. The orders of the
dismissal as well as the appellate and revisional orders were
passed outside the territorial jurisdiction of this Court. It was
in the light of the aforesaid facts that the Division Bench
following the judgment of the Full Bench in the case of
Rajendra Kumar Mishra (supra) held that mere
communication of the orders at the residential address of the
respondent at district Bhadohi would not confer territorial
jurisdiction to this Court. It would therefore be seen that the
decision in the case of Constable Lalji Pandey was based on
its own facts.
168.It may be taken note of that while considering the
question with regard to jurisdiction of the Court to decide
the petition at hand, the Full Bench in Rajendra Kumar
Mishra, after referring to earlier judgments on the point
made an observation that 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 although without embarking upon an enquiry
as to the correctness or otherwise of the said facts. The Full
Bench further reiterated that a 'cause of action' is bundle of
facts, which taken with the law applicable, gives the plaintiff
right to relief against the defendant.
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169.We may therefore observe that in both the Full Bench
judgment of this Court in the case of Rajendra Kumar
Mishra and the judgment of the Supreme Court in the case
of Nawal Kishore Sharma, it has been held that the
question as to whether cause of action, wholly or in part, had
arisen within the territorial jurisdiction of a High Court,
would have to be determined in each case on its own facts
and in the light of the nature and character of the
proceedings under Article 226.
170.Thus there does not seem to be any apparent conflict of
opinion in the two views. However, the broad propositions
which we have attempted to cull out from the precedents
which are available, may be taken as reference points while
deciding the question of territorial jurisdiction under Article
226 of the Constitution of India, which are stated to be
coming up in a fairly large number of matters.
171.The reference is accordingly answered in the manner
as aforesaid.
172.The papers relating to individual cases may now be
placed before the appropriate Bench having jurisdiction in
the matter.
Order Date : 01.05.2020
Pratima/Shahroz
(Dr. Y.K. Srivastava,J.) (Anjani Kumar Mishra,J.) (Sunita Agarwal,J.)
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