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2017 Supreme(J&K) 393
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA, JJ.
Jaswant Singh - Appellants
Vs.
U.O.I. and others - Respondents
LPASW No. 82 of 2017, MP No. 1 of 2017
Decided on : 11-08-2017
For the Appellants :Mr. Sunil Sethi, Sr., Mr. Nitin Parihar, Advocate
For the Respondents: Mr. Ravinder Gupta, CGSC
The filing of a mercy petition within the territorial jurisdiction of a court does not automatically confer jurisdiction under Article 226 if it does not constitute an integral part of the cause of action.
Headnote:
Jurisdiction - Writ Petition - BSF Act - Article 226 - [MERCY PETITION] - [JURISDICTION] - [BSF Act, Section 117] - The court discussed the jurisdiction of the High Court under Article 226 in relation to the filing of a mercy petition within its territorial jurisdiction. It referred to relevant case law and legal provisions to determine the accrual of cause of action and held that the filing of a mercy petition alone does not confer jurisdiction on the court.
Fact of the Case:
The appellant, a Border Security Force officer, filed a writ petition challenging the dismissal of his representation and mercy petition. The court dismissed the petition on the ground of lack of jurisdiction, as the events leading to the petition occurred outside the court's territorial jurisdiction.
Finding of the Court:
The court found that the filing of a mercy petition from within the territorial jurisdiction of the court did not confer jurisdiction under Article 226, as it did not constitute an integral part of the cause of action.
Issues: Jurisdiction under Article 226, accrual of cause of action, filing of mercy petition
Ratio Decidendi: The court held that the mere filing of a mercy petition within the court's territorial jurisdiction does not confer jurisdiction under Article 226, as it does not constitute an integral part of the cause of action.
Final Decision: The court dismissed the appeal, upholding the writ court's decision that it lacked territorial jurisdiction.
1. This Letters Patent Appeal has been preferred against the judgment and order dated 01.03.2017 passed in SWP No.1932/2013, whereby the writ petition filed by the appellant has been dismissed on the ground of lack of jurisdiction.
2. Briefly stated the material facts are as under:
3. On 15.02.2000, the appellant herein during the course of patrolling in District Manipur fired a bullet from his 9MM carbine, which hit one Constable Girish Chand, who as a consequence suffered grievous injuries. A Court of enquiry was held, which according to the appellant concluded that the firing of gun shots from the weapon of the appellant was not intentional but accidental.
4. In the year 2003, after a lapse of more than three years, the Commandant, 64th Bb. at Dholchera, District Assem sought trial of the appellant by General Security Force Court on the same allegations. The General Security Force Court was convened, which charged the appellant and vide order dated 09.02.2004 sentenced him with the following punishments:
(a) To take rank and precedence as if his rank and appointment as Sub-Inspector bore the date 2nd November, 2001 and not 2nd November, 1998.
(b) To forfeit three years past service for the purpose of pension.
(c) To be severely reprimanded.
5. The Inspector General, Border Security Force, Tripura then vide his order dated 24.04.2004 appears to have confirmed the order passed by the General Security Force Court. A post-confirmation petition under section 117 of the BSF Act was also filed by the appellant before the Director General, Border Security Force, New Delhi.
6. The appellant claims that a representation dated 10.02.2005 was also filed by him against rejection of the post-confirmation petition under Section 117 of the BSF Act, to which according to the appellant there was no response.
7. A mercy petition then appears to have been filed by the appellant on 17.07.2008, addressed to Director General, Border Security Force seeking review of the earlier order passed upon confirmation. This mercy petition is claimed to have been submitted by the appellant in the State of Jammu & Kashmir and according to the appellant was received in the State.
8. The entire sequence of events appeared to have occurred outside the state of Jammu & Kashmir except the factum of filing of the mercy petition and a representation from the State of Jammu & Kashmir, which fact too has been denied by the respondents in their counter affidavit before the writ Court. As contained in paragraph 15 to the effect that no such mercy petition had been received by them.
9. The writ Court by virtue of order dated 01.03.2017 proceeded to dismiss the petition on the ground that no cause of action or part thereof had arisen within the territorial jurisdiction of the Court. It is in those circumstances that the present Letters Patent Appeal has been filed on the ground that a part of cause of action had infact accrued within the State of Jammu & Kashmir, inasmuch as, a representation and a mercy petition had been filed by the appellant in Jammu, which had been duly received in the office of the respondents.
10. Reliance was also placed upon “Nawal Kishore Sharma V/s Union of India & ors” 2014 AIR (SC) 3607 to bring home the point that the part of the cause of action can be said to accrue to a person from the place where he initiates or submits representation or receives the order of rejection.
11. Heard learned counsel for the parties.
12. The short question that falls for our consideration is whether in the facts and circumstances of the present case mere filing of of a mercy petition from within the territorial jurisdiction of this court seeking review of the rejection of the post-confirmation petition would confer jurisdiction on this Court under Article 226.
13. After the amendment of the Article 226 by the Constitution (15th) Amendment Act, 1963, whereby Clause 1(A) was inserted in Article 226 and subsequently renumbered as Clause (2) by the Constitution (42
