# Naik M.K. Moorthy v. The Chief of the Army Staff and others

- **Citation:** (2004) 2 ILRA 564
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-09-09
- **Case number:** Civil Misc. Writ Petition No.24623 of 2000
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naik-m-k-moorthy-v-the-chief-of-the-army-staff-and-others-40249
- **Pages:** 4

## Headnote

Constitution of India-Art. 226- Writ
order-Maintainability-
Order
of
punishment and served upon petitioner
in
Banglore-Statutory
representation
under Section 164 (2) of Army Act made
by petitioner from Bangalore-Same was
decided at new Delhi and Communicated
to petitioner at Tamilnadu-No cause of
action or part of it arose in State of U.P.-
Hence Allahabad High Court has no
Territorial jurisdiction to decide the
matter.

Held: Para 7 & 9

From the pleadings in the petition it is
clear that the order of punishment was
passed and served upon the petitioner in
Bangalore and that he made a statutory
representation under section 164 [2] of
the Army Act from Bangalore itself;
therefore, the cause of action arose only
at Bangalore. The representation under
section 164 [2] of the Act was decided at
New Delhi and communicated to the
petitioner in Bangalore. Therefore, no
cause of action or part of cause of action
arose in the State of U.P. and therefore,
this Court does not have any territorial
jurisdiction to decide the matter. The
mere fact that the petitioner was posted
at Allahabad does not give him any cause
of action to decide the petition at
Allahabad.

Words and Pharas-word-'may'-whether
directory or mandatory?
In my view, the word 'may' is only
directory and is not mandatory nor does
it give a right to the petitioner to sue the
Chief of the Army Staff anywhere in the
country according to his own choice,
whims or caprice. The chief of the Army
Staff can be sued anywhere in the
country, provided the cause of action or
a part of the cause of action arose in that
State.
Case law discussed:
2001 (2) UPLBEC 1275
AIR 1998 All 47
AIR 1988 All. 36
1997 (1) UPLBEC 236

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
564

8. In this view of the matter the
award is modified to the extent that
subject to petitioner's permitting the
workman concerned to join his duties
with effect from the coming crushing
season, the workman shall be entitled for
half of the emolument from the date of
termination till the date of reinstatement
in the coming season.

There shall be no orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.24623 of 2000

No.6920275-W Naik M.K. Moorthy

 ...Petitioner
Versus
The Chief of Army Staff and others
 ...Respondents

Counsel for the Petitioner:
Sri Colonel Ashok Kumar

Counsel for the Respondents:
Sri Subodh Kumar
S.C.

Constitution of India-Art. 226- Writ
order-Maintainability-
Order
of
punishment and served upon petitioner
in
Banglore-Statutory
representation
under Section 164 (2) of Army Act made
by petitioner from Bangalore-Same was
decided at new Delhi and Communicated
to petitioner at Tamilnadu-No cause of
action or part of it arose in State of U.P.-
Hence Allahabad High Court has no
Territorial jurisdiction to decide the
matter.

Held: Para 7 & 9

From the pleadings in the petition it is
clear that the order of punishment was
passed and served upon the petitioner in
Bangalore and that he made a statutory
representation under section 164 [2] of
the Army Act from Bangalore itself;
therefore, the cause of action arose only
at Bangalore. The representation under
section 164 [2] of the Act was decided at
New Delhi and communicated to the
petitioner in Bangalore. Therefore, no
cause of action or part of cause of action
arose in the State of U.P. and therefore,
this Court does not have any territorial
jurisdiction to decide the matter. The
mere fact that the petitioner was posted
at Allahabad does not give him any cause
of action to decide the petition at
Allahabad.

Words and Pharas-word-'may'-whether
directory or mandatory?
In my view, the word 'may' is only
directory and is not mandatory nor does
it give a right to the petitioner to sue the
Chief of the Army Staff anywhere in the
country according to his own choice,
whims or caprice. The chief of the Army
Staff can be sued anywhere in the
country, provided the cause of action or
a part of the cause of action arose in that
State.
Case law discussed:
2001 (2) UPLBEC 1275
AIR 1998 All 47
AIR 1988 All. 36
1997 (1) UPLBEC 236

(Delivered by Hon'ble Tarun Agarwala, J.)

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 affairs
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
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2 All] Naik M.K. Moorthy V. The Chief of the Army Staff and others
565
filed a statutory representation under
section 164 [2] of the Army Act 1950
before the G.O.C.-in-Command, Sadan
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 Director General Army Head
Quarter, New Delhi vide its letter dated
29.5.1998 to the petitioner 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 not 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 representation under
section 164 [2] of the Army Act, was also
represented
by
the
petitioner
from
Bangalore and that the order of dismissal
of his petition laws 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.

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.

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.

4. In Rakes 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.

5. In Daya Shanker Bhardwaj v.
Chief of the Air Staff, New Delhi and
others, AIR 1988 Allahabad 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 Art. 226 can be
invoked of that High Court only within
whose territorial limits the cause of
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
566
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."

6. In Chabi Nath Rai v. Union of
India and others, 1997[1] UPLBEC-236
a Division Bench of this Court held-
"The mere fact that he sent a
representation from Allahabad and the
decision on his representation was
communicated at Allahabad did not
give any cause of action at Allahabad.
In Special Appeal No.300 of 1995, Sipoy
Ranchhor Singh v. Union of India and
others, it was held that -- "merely
because the delinquent served the
sentence in district Jail, the cause of
action does not arise at the place where
he is serving the sentence, but it is the
place where the person is tried,
sentence and convicted. The Court
declined to issue a writ of mandamus to
decide the representation by the Chief
of Army Staff at New Delhi."

In Lt. Col. [Mrs.] Saroj Mahanta
v. Union of India and others, 2003 [3]
ACJ 2511 a Division Bench of this Court
held "thus in view of the above we are of
the considered opinion that in order to
determine as to whether the writ Court
has a jurisdiction to entertain a petition
the pleadings in the petition have to be
examined and opinion is to be formed as
to whether a cause of action partly or fully
has arisen or the respondents reside or
have
office
within
the
territorial
jurisdiction of the Court. In absence
thereof if the view is taken that petition is
to be entertained on merit without
considering as to whether such prerequisite
conditions
are
there
the
provisions of clauses [1] and [2] of
Article 226 of the Constitution would
render nugatory."

7. From the pleadings in the petition
it is clear that the order of punishment
was passed and served upon the petitioner
in Bangalore and that he made a statutory
representation under section 164 [2] of the
Army
Act
from
Bangalore
itself;
therefore, the cause of action arose only at
Bangalore.
The
representation
under
section 164 [2] of the Act was decided at
New Delhi and communicated to the
petitioner in Bangalore. Therefore, no
cause of action or part of cause of action
arose in the State of U.P. and therefore,
this Court does not have any territorial
jurisdiction to decide the matter. The
mere fact that the petitioner was posted at
Allahabad does not give him any cause of
action to decide the petition at Allahabad.

8. The learned counsel for the
petitioner contended that the Chief of the
Army Staff could be sued anywhere in the
country. In this regard, the learned
counsel has placed reliance upon the
judgment of the Supreme Court in Dinesh
Chandra Gahtori [supra].

The aforesaid decision has been
considered by a Division Bench of this
Court in Lieutenant Colonel [Mrs.] Saroj
Mahanta v. Union of India and others
[supra] in paragraph 50 of the judgment
a Division Bench of this Court held -

"From the above it is evident that the
Hon'ble
Supreme
Court
in
Dinesh
Chandra Gahotri [supra] has not laid
down any law of universal application.
The observations have been made to meet
a particular situation where the case
remain pending for about a decade."
Thus, the direction issued therein if
considered in the light of other judgments
referred to above does not seem to have a
binding effect."

9. Further, I find that the Supreme
http://www.allahabadhighcourt.nic.in
2 All] M/s LML Ltd. V. Union of India and others
567
Court
in
Dinesh
Chandra
Gahotri
judgment [supra] had held " that the Chief
of the Army Staff may be sued anywhere
in the country."

In my view, the word 'may' is only
directory and is not mandatory nor does it
give a right to the petitioner to sue the
Chief of the Army Staff anywhere in the
country according to his own choice,
whims or caprice. The chief of the Army
Staff can be sued anywhere in the
country, provided the cause of action or a
part of the cause of action arose in that
State.

10. In view of the aforesaid it is
clear that the Court has no territorial
jurisdiction to decide the writ petition.
There is another aspect of the matter, the
writ petition is also liable to be dismissed
on the ground of laches. From the
averments made in the writ petition it is
clear that the order of punishment was
passed on 21.7.1997 and the statutory
petition of the petitioner under section
164
[2]
was
rejected
on
24.2.98.
According to the petitioner he was
transferred and posted to Allahabad in
April 1999 and thereafter filed the writ
petition in May 2000 before this Court.
No explanation has been given as to why
the petitioner could not file a writ petition
between the period 24.2.1998 and April
1999 i.e. from the date of rejection of the
petition under section 164[2] of the Army
Act and his posting at Allahabad. Further,
the explanation given by the petitioner for
the period April 1999 to May 2000 is
vague
and
does
not
inspire
any
confidence. The explanation given seems
to be an afterthought in order to cover up
the delay.

11. Accordingly, I find that the
petitioner
is
not
entitled
to
any
discretionary relief from this Court. The
writ petition is dismissed with cost on the
ground of laches as well as on the ground
of lack of territorial jurisdiction.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.8.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Writ Petition No. 33645 of 2004

M/s L.M.L. Limited, Kanpur ...Appellants
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri V.B. Singh

Counsel for the Respondents:
Sri K.C. Sinha, S.S.C.
Sri Rajesh Tewari
Sri Md. Khursheed Alam

Constitution of India-Art. 226-Premature
stage-Writ
against
order
asking
Petitioner to produce certain documentsheld, premature-Moreover, alternative
remedy available under S. 75 of ESI-Act,
if any adverse order is passed Petition
held not maintainable.

Held: Para 3 & 4

We have perused the impugned orders.
These
orders
have
only
asked
the
petitioner to produce certain documents.
In our opinion, these notices do not
amount to any adverse order against the
petitioner.
Hence
the
petition
is
premature. Moreover, if any adverse
order is passed against the petitioner, he
has an alternative remedy to approach
the E.S.I. Court under Section 75 of the
E.S.I. Act. In Special Director and
another Vs. Mohd. Ghulam Ghouse and
another 2004 A.I.R. S.C.W. 416, the
Supreme Court deprecated the practice