NAWAL KISHORE SHARMA vs. UNION OF INDIA .

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7414 OF 2014 (arising out of SLP (C) No.19549 of 2013) Nawal Kishore Sharma ….Appellant(s) Versus Union of India and Others … Respondent(s) JUDGMENT M.Y. EQBAL, J. 1. Leave granted. 2. Aggrieved by the judgment and order dated JUDGMENT 16.4.2013 passed by learned Single Judge of Patna High Court dismissing appellant’s writ petition for want of territorial jurisdiction, this appeal by special leave has been preferred by the appellant, who in November, 1988 had joined the off-shore Department of the Shipping 1 Page 1 Corporation of India (in short, “the Corporation”) and after about eight years he was transferred from the off-shore duty to a main fleet in the Foreign Going Department. 3. It is the case of the appellant that he was found medically fit in the medical test conducted by the Marine Medical Services in February, 2009 and thereafter, on 29.9.2009, an agreement known as the articles of agreement for employment of seafarers was executed for appellant’s off-shore duty. On 18.6.2010, when the appellant reported sickness i.e. cough, abdominal pain, swelling in leg and difficulty in breathing, he was sent for medical treatment ashore at Adani, Mundra Port. The JUDGMENT Medical Officer ashore advised him for admission in the Hospital and accordingly he was signed off for further medical treatment. Thereafter, he was considered permanently unfit for sea service due to dilated cardiomyopathy (heart muscle disease) as per certificate dated 18.3.2011 issued by Corporation’s Assistant Medical 2 Page 2 Officer. Consequently, the Shipping Department of the Government of India, Mumbai issued order dated 12.4.2011 cancelling registration of the appellant as a Seaman. 4. It is contended by the appellant that after he settled at his native place Gaya, Bihar, he sent several letters/ representations from there to the respondents for his financial claims as per statutory provisions and terms of contract. On the disability compensation claim, Respondent no.2-Corporation communicated vide letter dated 7.10.2011 that since the appellant was declared unfit for sea service due to heart problem (organic JUDGMENT ailment) he will be entitled to receive severance compensation of Rs.2,75,000/-, which was although offered, but not accepted by the appellant. It was also informed that he is not entitled to receive disability compensation, which becomes payable only in case a seaman becomes incapacitated as a result of the injury. 3 Page 3 5. By filing a writ petition, the appellant approached Patna High Court under Article 226 of the Constitution of

compensation and pecuniary damages. However, at the time of hearing, respondents raised the question of maintainability of the writ petition on the ground that no cause of action or even a fraction of cause of action arose within the territorial jurisdiction of the Patna High Court and contended that the appellant was appointed by the Corporation on the post of Seaman for off-shore services and he discharged his duty outside the territory of the State of Bihar. It is the case of the respondent that the JUDGMENT order declaring the appellant permanently unfit as well as the letter/order dated 7.10.2011 was passed by an authority of the respondent Corporation at Mumbai. Per contra, it is the case of the appellant that he is a permanent resident of Bihar and he asserted his rights in the State of Bihar and all communications with respect to 4 Page 4 rejection of his claims were made at his residential address in the State of Bihar. 6. After hearing learned counsel appearing for the

learned Single Judge of the Patna High Court dismissed the writ petition of the appellant holding that no cause of action, not even a fraction of cause of action, arose within its territorial jurisdiction. Hence, the present appeal by special leave. 7. We have heard learned counsel appearing for the parties. 8. The short question that falls for consideration in the JUDGMENT facts of the present case is that as to whether the Patna High Court is correct in taking the view that it has no jurisdiction to entertain the writ petition. For answering the said question we would like to consider the provision of Article 226 of the Constitution as it stood prior to 5 Page 5 amendment. Originally, Article 226 of the Constitution read as under:-

JUDGMENT 9. While interpreting the aforesaid provision the Constitution Bench of this Court in the case of Election Commission, India vs. Saka Venkata Rao , AIR 1953 SC 210, held that the writ court would not run beyond the territories subject to its jurisdiction and that the person or the authority affected by the writ must be amenable to 6 Page 6 court’s jurisdiction either by residence or location within those territories. The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and

Constitution which makes no reference to any cause of action or where it arises but insist on the presence of the person or authority within the territories in relation to which High Court exercises jurisdiction. In another Constitution Bench judgment of this Court in K.S. Rashid and Son vs. Income tax Investigation Commission Etc. , AIR 1954 SC 207, this Court took the similar view and held that the writ court cannot exercise its power under Article 226 beyond its territorial jurisdiction. The JUDGMENT Court was of the view that the exercise of power conferred by Article 226 was subject to a two-fold limitation viz., firstly, the power is to be exercised in relation to which it exercises jurisdiction and secondly, the person or authority on whom the High Court is empowered to issue writ must be within those territories. These two 7 Page 7 Constitution Bench judgments came for consideration before a larger Bench of seven Judges of this Court in the case of Lt. Col. Khajoor Singh vs. Union of India and

aforementioned two Constitution Bench judgments and opined that unless there are clear and compelling reasons, which cannot be denied, writ court cannot exercise jurisdiction under Article 226 of the Constitution beyond its territorial jurisdiction. 10. The interpretation given by this Court in the aforesaid decisions resulted in undue hardship and inconvenience to the citizens to invoke writ jurisdiction. JUDGMENT As a result, Clause 1(A) was inserted in Article 226 by the th Constitution (15 ) Amendment Act, 1963 and subsequently renumbered as Clause (2) by the nd Constitution (42 ) Amendment Act, 1976. The amended Clause (2) now reads as under:- 8 Page 8

JUDGMENT 11. On a plain reading of the amended provisions in Clause (2), it is clear that now 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 9 Page 9 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

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. 12. The term ‘cause of action’ as appearing in Clause (2) came for consideration time and again before this Court. JUDGMENT 13. In the case of State of Rajasthan and Others vs . M/s Swaika Properties and Another , (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 10 Page 10 acquisition of land under Rajasthan Urban Improvement Act, 1959. Notice was duly served on the Company at its registered office at Calcutta. The Company, first

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:- JUDGMENT “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- 11 Page 11

“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 18-B, 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 JUDGMENT 12 Page 12

JUDGMENT 14. This provision was again considered by this Court in the case of Oil and Natural Gas Commission vs . Utpal Kumar Basu and others , (1994) 4 SCC 711. In this case the petitioner Oil and Natural Gas Commission (ONGC) through its consultant Engineers India Limited 13 Page 13 (EIL) issued an advertisement in the newspaper inviting tenders for setting up of Kerosene Recovery Processing Unit in Gujarat mentioning that the tenders containing

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 :- JUDGMENT “ 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 14 Page 14

15. In Kusum Ingots & Alloys Ltd . vs. Union of India and Another , (2004) 6 SCC 254, this Court elaborately discussed Clause (2) of Article 226 of the Constitution, particularly the meaning of the word ‘cause of action’ with reference to Section 20(c) and Section 141 of the JUDGMENT Code of Civil Procedure and observed:- “ 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 15 Page 15

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.” Their Lordships further observed as under:- “ 29. In view of clause (2) of Article 226 of the Constitution of India, now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh has, thus, no application. 30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.” JUDGMENT 16 Page 16 16. In the case of Union of India and others vs. Adani Exports Ltd . and another , (2002) 1 SCC 567, this Court held that in order to confer jurisdiction on a

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. 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 i.e. involved in the case. This Court observed: JUDGMENT “ 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 17 Page 17

17. In Om Prakash Srivastava vs. Union of India and Another (2006) 6 SCC 207, answering a similar question this Court observed that on a plain reading of Clause(2) of Article 226 it is manifestly clear that the High JUDGMENT Court can exercise power to issue direction, order or writs for the enforcement of any of the fundamental rights or for any other purpose if the cause of action in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of 18 Page 18 the person against whom the direction, order or writ is issued is not within the said territory. In para 7 this Court observed:-

18. In the case of Rajendran Chingaravelu vs. R.K. Mishra, Additional Commissioner of Income JUDGMENT Tax and Others, (2010) 1 SCC 457 , this Court while considering the scope of Article 226(2) of the Constitution, particularly the cause of action in maintaining a writ petition, held as under: “ 9. The first question that arises for consideration is whether the Andhra Pradesh 19 Page 19

xxxxxx 11. Normally, we would have set aside the order and remitted the matter to the High Court for decision on merits. But from the persuasive submissions of the appellant, who appeared in person on various dates of hearing, two things stood out. Firstly , it was clear that the main object of the petition was to ensure that at least in future, passengers like him are not put to unnecessary harassment or undue hardship at the airports. He wants a direction for issuance of clear guidelines and instructions to the inspecting officers, and introduction of definite and efficient verification/investigation procedures. He wants changes in the present protocol where the officers are uncertain of what to do and seek instructions and indefinitely wait for clearances from higher-ups for each and every routine step, resulting in the detention of passengers JUDGMENT 20 Page 20

19. 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 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 JUDGMENT territorial limit of the Court’s jurisdiction. 20. 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 21 Page 21 of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the respondent

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 JUDGMENT 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 22 Page 22 representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those

address in Bihar. Admittedly, 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. JUDGMENT 21. 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 23 Page 23 issued. Pursuant to the said notice, the respondents appeared and participated in the proceedings in the High Court. It further reveals that after hearing the counsel

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 JUDGMENT action, has arisen within its territorial jurisdiction. 22. 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 24 Page 24 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

on the ground that the writ petitioner-appellant 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. 23. 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 JUDGMENT writ petition on merits. …………………………….J. (Ranjan Gogoi) 25 Page 25 …………………………….J. (M.Y. Eqbal) New Delhi, August 7, 2014. JUDGMENT 26 Page 26