IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : NDPS ACT Date of Decision: November 13, 2006 W.P.(C).No.23810/2005 Ravi Sharma... PETITIONER Through: Mr.Harjinder Singh, Sr. Advocate with Ms.Vandana Sharma, Advocate. Versus The Secretary... RESPONDENTS Ministry of Urban Development & others Through: Mr.Ravinder Bana, Advocate for respondent No.3. Anil Kumar, J. 1. The petitioner has prayed for issuance of a writ directing respondent no. 2, Competent Authority, to issue directions to the Estate Officer, respondent no.3, to waive the demand of Rs.10,36,788/- on account of extension fees and for setting aside the demand raised by respondent no. 3 vide letter dated 17.01.05 and for direction to respondent no. 3 to give the possession of plot SCO no.8, Sector 14, Gurgaon and also for registration and transfer of the said plot to the petitioner and a prohibition from realizing the amount of Rs 10,36,788/- demanded by letter dated 17.01.05 issued to the petitioner. 2. Brief facts to comprehend the controversies are that the petitioner was arrested on 11.10.87 in connection with seizure of heroine from one Mrs. Amar Sang who was going to Barcelona by flight number AZ-787 on 22.8.97 at IGI airport, New Delhi. In view of which a complaint dated 2.11.87 was filed against the petitioner under section 21, 25, 28 and 29 of NDPS Act, 1985 and subsequently an order for detention was passed against the petitioner by the joint Secretary, Ministry of Finance, the Department of revenue, New Delhi under section 3(1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988. 3. Against the detention order a writ petition was filed in this Court which was dismissed and subsequently the petitioner filed a Special Leave Petition being SLP (Crl.) No. 616 of 1989, which was also dismissed on 1.4.1991 as the period of detention was already over. 4. Thereafter a notice under section 68(H) (1) NDPS Act, 1985 dated 11.03.1993 was issued to the petitioner by the respondent no.2, to which a reply was filed by the
petitioner. A notice under section 68H (1) was also issued to the Chairman, HUDA in respect of the properties of the petitioner including at Commercial plot no. 8 in Sector 14, Urban Estate, Gurgaon, which was acquired from HUDA. It is asserted by the petitioner that during the period of notice any right of making construction or taking possession of the said property had ceased. While the matter was pending before the competent authority, the petitioner filed income tax record to show that the property was acquired lawfully and legally. However, a notice of attachment was issued to the Estate officer, respondent no. 3, by the Competent Authority, respondent no. 2. The petitioner contends that the issuance of notice under section 68-H of the NDPS act was sub judice as the petitioner has already filed a Writ petition challenging the detention order made by the respondent no.2. 5. According to the petitioner an order dated 12.1.2004, under section 68 1(1) (3) r/w section 68K of the NDPS Act, was passed by Respondent no. 2, forfeiting the aforesaid property of the petitioner and also an option for payment of fine of Rs. 14,90,000/- was made under Section 68 I (1) (3) r/w section 68 K of the NDPS act in lieu of forfeiture of the properties. The fine amount was deposited by the petitioner and an order for release of property was made by the respondent no. 2, Competent Authority, by order dated 9.6.2004. 6. The petitioner pleaded that he wrote a letter to respondent no. 3, Estate officer, HUDA, for executing the conveyance deed who instead asked the petitioner to take the possession of the property first and the petitioner applied for same on 23.12.2004. In the mean time the respondent no. 3 raised a demand of Rs. 10,36,788/- by letter dated 17.01.2005 on account of the extension fees up to 2005 for issuing possession certificate. 7. The letter dated 17.01.2005 of respondent no. 3 demanding Rs. 10,36,788/- on account of delayed construction has been impugned by the petitioner on the ground that it is illegal and without authority of law and has been issued malafidely and in abuse of the statutory authority. 8. The petitioner has relied upon (1998) 1 Supreme Court Cases 703 Aamenbai Tayebaly & Ors. Versus Competent authority and CWP No. 1274/2000 Smt Sudesh Ghai & Anr. Versus Union of India & Others to contend that since the petitioner was legally bound to comply with the terms of the notice so there was no fault on his part as the property was under attachment and so he is entitled for waiver of demand of Rs.10,36,788 which has however been declined illegally. 9. The petition is contested by the respondent no. 2 who filed the counter affidavit of Mr. Rajiv Ranjan, Assistant Commissioner refuting the averments made by the petitioner. The respondent contended that the petitioner purchased the property in 1984-85 and the notice was issued on 11.3.1993 and 8.7.1993 and therefore, the petitioner had all the opportunity of getting the property transferred in his own name and would have got the construction done during the period from 1984-85 to 1993. The respondent also averred that the property was never attached and was released soon after the petitioner deposited
the fine imposed by order dated 9.6.2004 and that HUDA was restrained from transferring the plot only till the proceedings under the NDPS Act were not over. 10. The respondent no. 3 also filed a short reply to the petition raising a preliminary objection of maintainability of the writ petition on the ground of lack of territorial jurisdiction as the property is situated in State of Haryana and was allotted pursuant to an auction held in Haryana and that cause of action had arisen at Haryana and not in Delhi therefore the High Court at Delhi has no jurisdiction to entertain the petition. 11. The petitioner filed a rejoinder to the Counter affidavit of Respondent no.2 however no rejoinder has been filed to the reply filed by the respondent no. 3 despite number of opportunities being given. 12. I have heard the learned Counsel for the parties and have perused the petition, counter affidavit, rejoinder affidavit and the documents filed with them. Before going into the merits of the case, first consider the preliminary issue as has been raised by the respondent no. 3 which is whether no cause of action has arisen at Delhi and therefore, the Court at Delhi should not exercise jurisdiction. The petitioner in the writ petition had contended that since the competent authority has made attachment of the property and notices were also issued by the Competent Authority to the petitioner and the respondent no. 3 and the adjudication proceedings also took place at Delhi and also the competent authority issued the letters of attachment from Delhi to the respondent no. 3, therefore, the cause of action has arisen in Delhi, therefore, the Court at Delhi has jurisdiction to entertain the same. 13. For exercising power under Article 226 of the Constitution of India the Court must have requisite territorial jurisdiction in absence of which a writ petition should not be entertained. In Kusum Ingots and Alloys Ltd. v. Union of India and Anr. reported in MANU/SC/043/2004, a issue was raised before the Supreme Court as to whether the High Court of Delhi would have the requisite territorial jurisdiction to entertain a writ petition and the Supreme Court referred to the provisions of Article 226(2) of the Constitution of India as also Section 20(c) of Code of Civil Procedure. 14. After setting out the said provisions, it was held in para 9 of the said judgment by the Supreme Court as follows:- 9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to a 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) of CPC shall apply to the writ proceedings. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a case cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material fact is also known as integral facts.
15. In para 10 of the Kusum ingots (supra), it was held by the Supreme Court that 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 a Court, that court will have jurisdiction in the matter. The aforesaid conclusion was arrived at by the Supreme Court upon discussion of various earlier decisions of the Supreme Court, which were referred to and discussed in the said judgment. 16. Thus a Court will have jurisdiction under Article 226 of the Constitution of India if the cause of action in wholly or in part arises within its jurisdiction. As to what all constitutes a cause of action for invoking the jurisdiction of a Court? In legal parlance the expression cause of action is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal. It implies a right to sue. The material facts imperative for the suitor to allege and prove constitute the cause of action. However, every fact pleaded is not a material fact but only those facts which, if pleaded, the petitioner can obtain a decree is a material fact and not other facts. It is an integral fact. Facts pleaded must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. It not only means infraction of right but infraction coupled with right itself. In Union of India v. Adani Exports Ltd. MANU/SC/0696/2001, the Apex Court held that each and every fact pleaded will not give rise to a cause of action. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action within the Court s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. 17. The question as to whether the Court has territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. In order to confer the jurisdiction on the High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action to constitute a cause so as to empower the Court to decide the dispute and that the entire or a part of it arose within its jurisdiction. 18. Even if a small cause of action has arisen in the territorial jurisdiction of the High Court then also the High Court will have jurisdiction in the matter however it cannot be a determinative factor compelling the court to decide the matter on merit. Cause of Action must help the petitioner in obtaining a decree. When an order, is made by a court or an executive authority under the provisions of a statute or otherwise then a part of the cause of action arises at that place provided that the cause of action has arisen because of that order.
19. In Oil and Natural Gas Commission v. Utapl Kumar Basu and Ors. MANU/SC/0759/1994 the Supreme Court had held: "Under Article 226 a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purposes if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ it issued is not within the said territories. The expression "cause of action" means that bundle of facts which the petitioner must prove, it traversed to entitle him to a judgment in his favour by the Court. Therefore, in determining the objection of lack of territorial jurisdiction the court must taken 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. Thus the question of territorial jurisdiction must be decided on the facts pleaded in the petition the truth or otherwise of the averments made in the petition being immaterial." 20. It is expressly argued by the petitioner that since the notices and the letter of attachment were issued by the Competent authority from Delhi, therefore, Delhi Courts will have jurisdiction. This plea is not sustainable in the present facts and circumstances as the relief claimed is against the respondent no.3. In ONGC case(supra) it was held by the Supreme Court that mere sending and receiving of fax messages at Calcutta would not constitute an integral part of cause of action and therefore, Court will not have jurisdiction. In (1985) 3 Supreme Court Cases 217 State of Rajasthan v. Swaika properties the Supreme Court held that mere service of notice would not give rise to any cause of action unless service of notice was an integral part of the cause of action. The notice was issued under section 68(H) (1) NDPS Act, 1985. The notices and the letter of attachment were issued in the proceedings under the NDPS Act which are independent proceedings against the petitioner. The cause of action for instituting the present petition did no arise because of the order of attachment which was made by the respondent no. 2 in a proceeding under the NDPS Act. The cause of action for instituting the writ arose from the order of the Estate Officer refusing to give possession of the property unless demand amount is paid. Thus issuance of notice and letter of attachment do not therefore form an integral part of the cause of action which fact is indispensable for invoking the jurisdiction of the Court as on the basis of notice issued no relief, as claimed, can be granted. 21. The other fact for cause of action asserted by the petitioner is that the orders were made at Delhi by Competent authority. The orders sought to be impeached are the orders made by respondent no. 3 and not those made by the respondent no. 2. Merely because certain orders of attachment were made by respondent no. 2, the Competent Authority, which is at Delhi would not give jurisdiction to Delhi Court. In para 23 Kusum Ingots (supra) judgment, it was held that a writ petition, questioning the constitutionality of a Parliamentary Act shall not be maintainable in the High Court of Delhi only because the seat of the Union of India is in Delhi. While coming to the aforesaid conclusion the Supreme Court relied upon and referred to the decision of the Calcutta High Court in Abdul Kafi Khan v. Union of India and Ors. reported in AIR 1979 Calcutta 354 were it
was held that when admittedly neither cause of action nor any part there of ever arose or accrued within territorial jurisdiction and orders sought to be impeached passed by authorities outside territorial jurisdiction then the Court had no jurisdiction in view of Article 226 (1). Just because competent authority under another Act is at Delhi and the orders were made at Delhi against the petitioner, will not confer jurisdiction to Delhi Courts as those orders are not sought to be impeached by the petitioner in the present petit_on and the cause of action for instituting the present proceeding does not arise from those orders made by the respondent no.2. 22. Adjudication proceedings took place at Delhi but the proceedings were not pertaining to the rights and title of the property but were under NDPS Act. In para 18 of the Kusum Ingots judgement (supra) it was observed by the Supreme Court that the facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court. The proceeding under the NDPS Act has no relation, whatsoever, with the prayer made by the petitioner for possession of his plot of land which is also not situated in Delhi, from respondent no.3 who also does not have his office at Delhi. 23. All reliefs are sought from respondent no. 3, Estate Officer, HUDA and court at Delhi cannot issue directions to a body situated in some other State which is not within its jurisdiction in the present facts and circumstances of this case. 24. The choice of forum cannot be left at the whims and fancies of the litigants/parties. Jurisdiction of the court is attracted only by reason of entire cause of action or a part of cause of action arising within its territorial jurisdiction. Therefore merely because the notice and letter of attachment were issued from Delhi and another Competent authority is at Delhi which does not have to give relief sought by the petitioner, will not give jurisdiction to the Delhi Courts. 25. In Sarwan Singh Versus Union of India and ors. MANU/DE/8772/2006 the division bench of this Court, after citing the settled case laws on the issue of territorial jurisdiction, held that if no part of the cause of action has arisen within the territorial jurisdiction of this court, in that case the court shall not entertain the writ petition, as this court shall have no jurisdiction to entertain such writ petitions. 26. A bare perusal of the petition and the prayer sought would clearly go on to show that the entire cause of action has arisen within the jurisdiction of the Court at Haryana and it is that court which will have jurisdiction to adjudicate the disputes raised by the petitioner in the matter. The facts pleaded by the petitioner for the relief claimed do not show that even a part of cause of action has arisen at Delhi within the jurisdiction of this Court. The property is situated in Haryana, the auction was also held in Haryana, possession is sought from HUDA who is also at Haryana and it is the order of Estate Officer, HUDA which is sought to be impeached. Therefore Courts of Haryana will only have jurisdiction. Merely because another Competent Authority is at Delhi which had given a notice to respondent no.3 will not give jurisdiction to this Court.
27. In Sector Twenty-one Owners Welfare Association v. Air Force Naval Housing Board, 65 (1997) DLT 81 (DB), a Division Bench of this Court has held that a trivial or insignificant part of the cause of action arising at a particular place would not be enough to confer writ jurisdiction on the Court to entertain the lis and deduced from various precedents that the emphasis has shifted from the residence or location of the person or authority sought to be proceeded against, to the situs of the accrual of cause of action. There is no reason why the observations pertaining to writ petitions should not be extrapolated and inter- changed between suits and writ petitioners. The Bench held as follows: 13. The law as reflected by the abovesaid decisions is that the emphasis has shifted from the residence or location of the person or authority sought to be proceeded against to the situs of the accrual of cause of action wholly or in part. It is also clear that a trivial or insignificant part of the cause of action arising at a particular place would be not enough to confer writ jurisdiction; it is the cause of action mainly and substantially arising at a place which would be determinating factor of territorial jurisdiction. So also it shall have to be kept in view who are the real persons or authorities sought to be proceeded against or against whom the writ to be issued by the Court would run. Joining to proforma or anciliary parties and certainly not the joining of unnecessary parties, would be relevant for the purposes of Article 226(1). 28. Primacy has been given to the place where the cause of action has substantially arisen, as is evident from the decision of the Supreme Court in South East Asia Shipping Co. Ltd v. Nav Bharat Enterprises Pvt. Ltd., (1996) 3 SCC 443. In this case the admitted position was that performance of the obligations and liabilities under the contract was to be carried out in Bombay. The Apex Court found it wholly irrelevant that the subject Bank Guarantee had been executed at Delhi and transmitted for performance to Bombay and held that Delhi Courts did not possess jurisdiction to decide the dispute. An analysis of the various pronouncements of the Supreme Court reveals that even though the express terms of Section 20 of the CPC permit the filing of a suit against a Corporation at its principal office, primacy and pre-eminence has been accorded to the place where the cause of action had substantially arisen, as against those places where it has incidentally or partially arisen. Whilst the Supreme Court has indubitably enumerated in ABC Laminart v. A.P. Agencies, AIR 1989 SC 1239 = 1989(2) SCC 163 the several places where the cause of action could be seen to have arisen, this was done primarily to investigate and determine whether the place to which jurisdiction had been restricted, by ousting all others, itself enjoyed jurisdiction. Otherwise, as is trite, such a clause would become legally unefficacious since it is not possible to infuse by contract jurisdiction on Court which does not otherwise possess it. The position that obtains today is that primacy is accorded to the place where the cause of action substantially arises. The following passage of ABC Laminart is quite instructive: 15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach
occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a Court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have (been) performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors. 29. This question has also been considered in detail by the Supreme Court in Union of India v. Adani Exports Ltd.,AIR 2002 SC 126. In _ts opinion each and every fact pleaded in the 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 pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. 30. For the reasons aforementioned, I am of the opinion that this Court has no jurisdiction to adjudicate the relief prayed by the petitioner in this writ petition. The writ petition is therefore, dismissed. The petitioner, however, would have liberty to file the petition in the appropriate Court having jurisdiction in the facts and circumstances of the case. Parties are also left to bear their own costs SD./- November 13, 2006 ANIL KUMAR J.