# Forward Construction Co v. Prabhat

- **Citation:** (2012) 3 ILRA 1470
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-11
- **Case number:** Criminal Misc. Writ Petition No. 14978 of 2012
- **Bench:** Amar Saran, Anurag Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/forward-construction-co-v-prabhat-42326
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226Territorial Jurisdiction-in contravention
of COFEPOSA Act 1974-petitioner earlier
approached before Mumbai High Courtbeing
failure
present
petition
with
3 All] Brahm Pal Singh V. Union Of India Thru' Secy. & Others

1471
allegations
the
business
carried
at
Ghaziabad,
property
situated
at
Ghaziabad -petition before High Court
Allahabad
maintainable-heldmisconceived-in view of rule 7 of High
Court Rules 1952-dismissal of earlier
petition-operate as Resjudicata-second
petition not maintainable.

Held: Para-21

Rule 7 of the Allahabad High Court Rules,
1952, is crystal-clear which says that
second writ petition on the same facts
would be barred. The Apex Court in
Forward Construction Co. Vs. Prabhat
Mandal (Regd), Andheri, reported in AIR
1986 SC 391, was pleased to rule that
the orders dismissing the first writ
petition
operates
as
res
judicata
between the parties and no second
petition
on
the
same
facts
is
maintainable.
Case Law discussed:
AIR 2007 SC 1812; AIR 1986 SC 391

## Text

1470 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

documents. Their actions are not only
arbitrary but against the Rules. Their actions
caused Kunwar Pal Singh to remain in
custody from 9.2.2012 to 22.2.2012. This
period of confinement was definitely in
violation of Article 21 of the Constitution of
India as the Revenue Authorities, i.e.,
Tehsildar, Budaun and Collecting Amin,
Budaun appear completely encroaching
upon the personal liberties of Kunwar Pal
Singh and thereby they wrongfully confined
him into custody.

34. Now Kunwar Pal Singh has been
released. This information was placed
before this Court by an affidavit dated
2.4.2012 and the order drawn by this Court
on that date also records the fact subject to
the statement being verified by the C.J.M.,
Budaun. We do not have any other report
regarding the stand or information given to
the Court by the learned AGA. For the
illegal and wrongful confinement of
Kunwar Pal Singh, he deserves to be
compensated. If the wrongful confinement
was in the garb of compliance to Rules or
procedure the Court has always to put itself
on guard not only to secure the liberties of a
person, but also to properly compensate
such a person if it comes to a finding that
the personal liberty of such a person has
been violated and abused.

35. We are of the opinion that a
compensation of Rs. 50,000/- shall be
appropriate
under
the
facts
and
circumstances of the case which is required
to be paid by the State of U.P. to Kunwar
Pal Singh , the petitioner. We direct that the
above amount be paid to him within six
weeks
from
the
present
order
and
compliance to this order be reported by
filing an affidavit.

36. We make it clear that it shall be
the prerogative of the State and its
authorities to realize the compensation
amount from the concerned Tehsildar and
Collecting Amin in appropriate proportions.

37. We must record the meaningful
assistance rendered to the Court by Sri
Pradeep Kumar Rai, Advocate, who was
requested to assist as Amicus Curiae. We
direct that the High Court Legal Service
Committee pay him a fee of Rs.15,000/- for
assisting us.

38. This writ petition drawn suo-motu
by the Court is disposed of in the above
terms.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2012

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE ANURAG KUMAR, J.

Criminal Misc. Writ Petition No. 14978 of
2012

Brahm Pal Panchal

 ...Petitioner
Versus
Union of India Thru' Secy. & Others

 ...Respondents

Counsel for the Petitioner:
Sri Awadhesh Kumar Mishra
Sri Brijesh Upadhyay
Sri Dharampal Singh

Counsel for the Respondents:
A.S.G.I./2012/5374
A.G.A.

Constitution
of
India,
Article
226Territorial Jurisdiction-in contravention
of COFEPOSA Act 1974-petitioner earlier
approached before Mumbai High Courtbeing
failure
present
petition
with
3 All] Brahm Pal Singh V. Union Of India Thru' Secy. & Others

1471
allegations
the
business
carried
at
Ghaziabad,
property
situated
at
Ghaziabad -petition before High Court
Allahabad
maintainable-heldmisconceived-in view of rule 7 of High
Court Rules 1952-dismissal of earlier
petition-operate as Resjudicata-second
petition not maintainable.

Held: Para-21

Rule 7 of the Allahabad High Court Rules,
1952, is crystal-clear which says that
second writ petition on the same facts
would be barred. The Apex Court in
Forward Construction Co. Vs. Prabhat
Mandal (Regd), Andheri, reported in AIR
1986 SC 391, was pleased to rule that
the orders dismissing the first writ
petition
operates
as
res
judicata
between the parties and no second
petition
on
the
same
facts
is
maintainable.
Case Law discussed:
AIR 2007 SC 1812; AIR 1986 SC 391

(Delivered by by Hon'ble Anurag Kumar, J.)

1. This writ petition by petitioner,
Brahma Pal Panchal, is filed for quashing
the
impugned
detention
order
dated
25.1.2012 passed by respondent no. 2,
namely, Principal Secretary (Appeals and
Security), Home Department, Government
of Maharashtra and Detenue Authority
Mantralaya, Mumbai, Maharashtra.

2. At the very outset, learned AGA
raised a preliminary objection regarding the
maintainability of this petition in this High
Court, contending that this Court has no
jurisdiction to hear the case, as the cause of
action arose in the Maharashtra and the
petitioner's son has already approached the
Bombay High Court, but has failed.

3. According to the petitioner, this
Court has full jurisdiction to entertain this
writ petition as he is the permanent resident
of Ghaziabad, U.P., and his office is at
Ghaziabad and his all business activities are
transacted here. His business premises at
Ghaziabad were also searched and the
seizure panchnama was also prepared at
Ghaziabad. On these grounds, learned
counsel for the petitioner asserted that this
Court has jurisdiction to hear and decide
this petition.

4. Before entering into the main
controversy, we feel it necessary that the
preliminary objection raised by the learned
AGA
regarding
jurisdiction
may
be
considered first and decided upon.

5. The factual matrix of the case is
that prior to 21.10.10, approximately 6500
second-hand cranes were imported at
Bombay Port by approximately 600
importers during the last five years. The
Director of Revenue Intelligence, Mumbai
Zonal, gathered an information that several
syndicates of crane importers were involved
in the evasion of customs duty by
undervaluing the said imports. Based on the
said intelligence, dated 21.10.10, several
simultaneous
search
operations
were
conducted by the Director, Revenue
Intelligence, Mumbai Zone, Union of India,
at different places, including the business
premises and workshops of the petitioner at
Ghaziabad.

6. Thereafter, summonses were issued
to the petitioner and proceedings under the
Customs Act initiated. Ultimately, the
impugned detention order was passed on
25.1.2012.

7. After issuance of the impugned
detention order, the petitioner's son, Pradeep
Panchal, filed a petition, being Crl. W.P.
No. 1368 of 2012, before the Bombay High
Court. In the said petition, various orders
1472 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

were passed but the arrest of the petitioner
was not stayed. On 7.9.12, the Bombay
High Court passed an order directing the
learned counsel for the petitioner of that
case to name the detenu himself as the
petitioner. As the necessary amendments
have not been carried, the said writ petition
has been dismissed for non-prosecution.

8. Learned counsel for the petitioner
submitted that this Court has jurisdiction to
entertain this writ petition, and in this regard
has relied upon the Full Bench decision of
the Rajasthan High Court, as reported in
1998 Crl.L.J. 0-3465: Umed Mal Vs. Union
of India. He also submitted that the cause of
action is a bundle of facts. Part of cause of
action or any portion of the cause of action
can give rise to the petitioner's right to file a
petition in this High Court. The cause of
action is to be seen from the pleadings of
the parties. When from the pleadings of the
petitioner, any part of the cause of action is
within the jurisdiction of this Court, then
this Court has every and full jurisdiction to
entertain the writ petition. The learned
counsel has also rlied on (2006) 6 SCC 207:
Om Prakash Srivastava Vs. Union of India.

9. Learned AGA submitted that the
cause of action in the present case arose
within the jurisdiction of the Bombay High
Court and the petitioner has approached the
said Hon'ble Court; but when he did not
succeed in obtaining any relief therefrom,
he has approached this Court. In view of
this, it is not open to the petitioner to
approach this Court once he has failed to get
relief from the Bombay High court, having
jurisdiction in the matter. The petitioner
cannot create the jurisdiction of this Court
by merely asserting on the residence or the
search operations in Ghaziabad. It is true
that the cause of action is a bundle of facts,
which means every fact, which is important
for any cause of action and in the absence of
such fact, the cause of action comes to an
end.In support of his submission, learned
AGA has relied on AIR 2007 SC 1812:
Alchemist Ltd. Vs. State Bank of Sikkim.

10. After considering the arguments of
both the sides, now we consider the factum
of jurisdiction of this Court.

11.

Before
entering
into
the
controversy in the present case, we may
examine the legal position regarding the
jurisdiction.

12. In Black's Law Dictionary, Ninth
edition, at page 251, the phrase 'cause of
action' is defined as "...(1) 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...

13. According to Edwin E. Bryant,
The Law of Pleading Under the Codes of
Civil Procedure 170 (2d ed. 1899):

"What is a cause of action? Jurists
have found it difficult to give a proper
definition. It may be defined generally to be
a situation or state of facts that entitles a
party to maintain an action in a judicial
tribunal. This state of facts may be - (a) a
primary right of the plaintiff actually
violated by the defendcant; or (b) the
threatened violation of such right, which
violation the plaintiff is entitled to restrain
or prevent, as in case of actions or suits or
injunction; or (c) it may be that there are
doubts as to some duty or right, or the right
beclouded by some apparent adverse right
or claim, which the plaintiff is entitled to
have cleared up, that he may safely perform
his duty, or enjoy his property.".
3 All] Brahm Pal Singh V. Union Of India Thru' Secy. & Others

1473

14. Article 226 of the Constitution of
India, as originally it stood, had two-fold
limitations on the jurisdiction of a High
Court
with
regard
to
its
territorial
jurisdiction. Firstly, the power could be
exercised by it throughout the territories in
relation to which it exercises jurisdiction,
i.e. the writs issued by the court could not
reach beyond the territory subject to its
jurisdiction. Secondly, the person or the
authority, to whom the High Court is
empowered to issue such writs, must be
"within those territories" which clearly
implies that this must be within its
jurisdiction, either by residence or location
of his jurisdictional territories. However, by
the Constitution (42nd) Amendment Act,
1976, it has been provided that the High
Court within the territorial jurisdiction of
which a cause of action, wholly or in part
arises, shall exercise the power conferred by
clause (1) of Article 226, irrespective of
whether the State, a government, or an
authority to which the writ be issued or the
residences of the persons claiming relief is
constituted within the territories of that
High Court or no. A bare reading of Article
226 shows that the jurisdiction of the High
Court depends upon the accrual of the cause
of action, wholly or in part, within the
territorial jurisdiction of the court.

15. In Umed Mal (supra), the Full
Bench of the Rajasthan High Court laid
down that if the service of the detention
order is within the territories of the State of
Rajasthan, the Rajasthan High Court will
have the territorial jurisdiction to entertain
the writ petition. Hon'ble the Supreme Court
in Alchemist Ltd. (supra), relying on the
State of Rajasthan Vs. M/s. Swaika
Properties, reported in AIR 1995 SC 1285
[in which it was held that mere service of
notice on the petitioner at Calcutta under the
Rajasthan Urban Employment Act, 1959,
could not give rise to a cause of action
unless such notice was integral to the cause
of action]. In this case, the facts are that the
appellant-company had its registered office
at Chandigarh. Negotiations took place at
Chandigarh.
Letter
of
proposal
and
acceptance, and also its rejection thereafter,
was communicated at Chandigarh. But the
proposal of the appellant-company was not
accepted by the State Government at
Sikkim it was held that the grounds on
which
the
petitioner
claiming
the
jurisdiction at Punjab and Haryana High
Court, is not an integral part or material
facts so as to constitute the part of action
within the meaning of Article 226 of the
Constitution.

16. In Om Prakash (supra), Hon'ble
Apex Court says that if High Court refuses
to consider writ petition by merely
observing that though it may have
jurisdiction but another High Court deal
with the matter more effectively was not a
correct way to deal with the writ petition it
should hold that no part of the cause of
action arose within its territorial jurisdiction.

17. In the present case also, the notice
to detain was issued by the authorities of
Maharashtra Government from Mumbai
and the cause of action to issue the notice
also arose at Mumbai where the cranes
regarding which the notices were being
issued, were imported, i.e. at Mumbai port.
The contention of the petitioner that he is
residing at Ghaziabad and his premises
were also searched at Ghaziabad and the
detention order was also issued against him
and served upon him at Ghaziabad. In our
view, these are not the integral parts of the
cause of action.

18. The cause of action is only at
Bombay, where the cranes arrived from the
1474 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

outside, regarding which it is alleged that
they were undervalued and not paid the
proper custom duty and was guilty under
the COFEPOSA Act, 1974. Any person can
have houses and offices at different States.
Because a person carries out the business at
Ghaziabad, would not create a jurisdiction
of this Court. This should not be treated as
an integral part of the cause of action.
Therefore, the jurisdiction lies only with the
Bombay
High
Court,
within
whose
jurisdiction the cause of action arose and
lies.

19. In view of the aforesaid, we find
no force in the submissions of the
petitioner's learned counsel.

20. Here it is also important to
reiterate that the petitioner's son has already
approached the Bombay High Court
regarding the detention order, where he did
not succeed. Only thereafter, the petitioner
has approached this Court.

21. Rule 7 of the Allahabad High
Court Rules, 1952, is crystal-clear which
says that second writ petition on the same
facts would be barred. The Apex Court in
Forward Construction Co. Vs. Prabhat
Mandal (Regd), Andheri, reported in AIR
1986 SC 391, was pleased to rule that the
orders dismissing the first writ petition
operates as res judicata between the parties
and no second petition on the same facts is
maintainable.

22. In the result, we find that this
Court has no jurisdiction to entertain this
petition which is hereby dismissed on the
ground of jurisdiction alone at the
preliminary stage.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 16972 of 2000

Smt.Sajarunnisha & another

 ...Petitioners
Versus
The D.J. Siddarth Nagar and Others

 ...Respondents

Counsel for the Petitioner:
Sri Jokhan Prasad
Sri S.N. Yadav

Counsel for the Respondents:
C.S.C.
Sri D.K. Srivastava

Constitution of India, Article 226-suit for
cancellation of sale deed-on ground of
being illiterate lady by playing fraud got
execution-Trial Court held-suit before
Civil Court maintainable rejecting the
objection of defendants regarding ban of
Section 49 of U.P. Consolidation of
Holding Act-Revisional Court reversed
the same by wrongly placing reliance of
case law contrary to view of Full Bench
decision of Ram Padarath-Trial Court
rightly held the suit maintainable before
Civil Court.

Held: Para-10

Thus
in
view
of
the
above
legal
preposition settled by the Full Bench of
the Allahabad High Court in the case of
Ram Padarath (supra) which has been
followed by the various other court and
has also been affirmed by the Supreme
Court in the case of Shri Ram (supra),
the suit filed by Masammat Aisha,
mother of the petitioners for cancellation
of the sale deed before the civil court
seeking the relief of cancellation of the
sale deed on the ground that the same