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2004 Supreme(All) 1632
HIGH COURT OF ALLAHABAD
Tarun Agarwala, J.
No.6920275-W Naik M.K. Moorthy, Muthani Thevar
Versus
Chief of the Army Staff
Civil Misc. Writ Petition 24623 of 2000
Decided On : 09 September 2004
Civil Misc. Writ Petition 24623 Of 2000
ASHOK KUMAR, SUBODH KUMAR,
Territorial jurisdiction is essential for a court to entertain a petition, and delay in filing a petition can lead to its dismissal.
Headnote:
JURISDICTION - Army Act - Section 164[2] - Summary Court Martial proceedings, order of penalty, and petition under Section 164[2] of the Army Act - The court held that the cause of action arose only at Bangalore, and therefore, the court did not have territorial jurisdiction to decide the matter. The court also dismissed the writ petition on the ground of laches and lack of territorial jurisdiction.
Fact of the Case:
The petitioner, an army officer, filed a writ petition before the Allahabad High Court seeking to quash the Summary Court Martial proceedings, the order of penalty, and the order passed in the petition under Section 164[2] of the Army Act. The respondents raised a preliminary objection regarding the territorial jurisdiction of the court.
Finding of the Court:
The court found that the cause of action arose only at Bangalore, and therefore, the court did not have territorial jurisdiction to decide the matter. The court also dismissed the writ petition on the ground of laches and lack of territorial jurisdiction.
Issues: Territorial jurisdiction, laches
Ratio Decidendi: The court held that the cause of action arose only at Bangalore, and therefore, the court did not have territorial jurisdiction to decide the matter. The court also dismissed the writ petition on the ground of laches and lack of territorial jurisdiction.
Final Decision: The writ petition was dismissed with cost on the ground of laches as well as on the ground of lack of territorial jurisdiction.
( 1 ) THE petitioner was enrolled in the Indian Army in 1994. The petitioner was posted at bangalore and pursuant to an incident dated 30. 7. 1994, he was chargesheeted for using criminal force against his superior officers. The Summary Court Martial proceedings were held at bangalore in July 1999 in which an order dated 21. 7. 97 was passed imposing minor punishment of reduction in rank and three months rigorous imprisonment. The petitioner thereafter filed a statutory representation under Section 164[2] of the Army Act 1950 before the g. O. C.-in-Command, Head Quarter Southern Command, Pune. The said representation was rejected by the competent authority on 24. 2. 1998 and a communication to this effect was sent by the office of the Additional Directorate General, Discipline and Vigilance [dv-3] Adjutant generals Branch, Army Head quarters, New Delhi vide its letter dated 29. 5. 1998 to the petitioners address in Tamilnadu. The petitioner has now filed the present writ petition before this Court at Allahabad for quashing of the Summary Court Martial proceedings, the order of penalty as well as the order passed in the petition under Section 164[2] of the Army Act.
( 2 ) A preliminary objection has been raised by the respondents that this Court does riot have the territorial jurisdiction to hear the petition, inasmuch as no cause of action arose in the State of u. P. and therefore, no writ could be issued by this Court. It was contended that the petitioner was posted at Bangalore, the incident occurred at Bangalore and that the Court Martial proceedings were also conducted at Bangalore and that the order of punishment was also passed at Bangalore. Not only this, the petitioner under Section 164 (2) of the Army Act was also remitted by the petitioner from Bangalore and that the order of dismissal of his petition was communicated to the petitioner in Tamilnadu and therefore, no cause of action wholly or in part arose in the State of U. P.
( 3 ) HEARD Colonel Ashok Kumar, the learned Counsel for the petitioner and Sri Subodh Kumar, the learned Counsel for the respondents.
( 4 ) THE learned Counsel for the petitioner submitted that the Chief of the Army Staff could be sued anywhere in the country as held by the Supreme Court in Dinesh Chandra Gahotri v. Chief of the Army Staff 2001[2] UPLBEC 1275. The petitioner was posted in Ordinance Depot at allahabad in the month of April 1999 and therefore, he was entitled to file a writ petition before the Allahabad High Court.
( 5 ) THE submission of the learned Counsel for the petitioner is wholly devoid of any merit and is liable to be rejected. The mere fact that the petitioner was posted at Allahabad does not give him any cause of action to file a petition at Allahabad.
( 6 ) IN Rakesh Dhar Tripathi v. Union of India AIR 1998 Alld. 47 a division bench of this Court held that since all the respondents were residing at New Delhi and that the cause of action arose only in New Delhi, the mere fact that the petitioner was residing at Allahabad would not entitle him to file a writ petition at Allahabad. The Court held that it had no territorial jurisdiction.
( 7 ) IN Daya Shanker Bhardwaj v. Chief of the Air Staff, New Delhi and Ors. AIR1988 All 36 , a division bench of this Court held-A right of action arises as soon as there is an invasion of right. But cause of action and right of action. . . are not synonymous or interchangeable. A right of action is the right to enforce a cause of action (American Jurisprudence 2nd Edition vol. I.) A person residing anywhere in the country being aggrieved by an order of government Central or State or authority or person may have a right of action at law but it can be enforced or the jurisdiction under Article 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 aggri
