Article 226 of Constitution of India confers a power of judicial review on all the High Courts of India. It enables them to issue to any person or authority, including in appropriate cases any Government, Directions, Orders or Writs, including Writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari, for the enforcement of any of the rights conferred by Part III of Constitution of India and for any other purpose, i. e for the enforcement of any other legal right. The power conferred on the High Court under Article 226 (1) of Constitution of India can, in a proper case, be exercised even against the legislature.

The five Writs specifically mentioned in Article 226 of Constitution of India are known in English Law as prerogative Writs, for they had originated in the King's prerogative power of superintendence over the due observance of law by his Officers and Tribunals. The prerogative Writs are extraordinary remedies intended to be applied in exceptional cases in which ordinary legal remedies are not adequate.

Article 226 Before Its Amendment

Firstly, the legislative history of Article 226 of Constitution of India is required to be examined. It originally read thus:

226. (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by part III and for any other purpose.

(2) The power conferred on a High Court by Clause (1) shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32.

Khajoor Singh Judgment And Amendment

Interpreting this Article 226, as it stood then, the Supreme Court in Lt. Col. Khajoor Singh Vs Union of India, AIR 1961 SC 532, held that there is two-fold limitation on the power of the High Court to issue Writ under Article 226 of Constitution of India, namely:

1. the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction', that is to say, the Writs issued by the Court cannot run beyond the territories subject to its jurisdiction, and
2. the person or authority to whom the High Court is empowered to issue such Writs must be ``within those territories'` which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories.

The Court, in Khajoor Singh further held that the place where the cause of action arose had no relevance for determining the territorial jurisdiction of the High Court. This ruling made the Parliament to amend Article 226 (2) which reads as follows (15th Amendment to the Constitution of India introduced Clause (1-A) to Article 226 which was subsequently renumbered as Clause (2) by the Constitution 42nd Amendment):
226 (2): The power conferred by Clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

Delhi HC's Illustration Of Scope Of Amended Article 226

Justice Badar Durrez Ahmed of Delhi High Court in Jayaswals Neco Limited v/s Union of India, illustrated the effect of this amendment by giving a simple illustration:

The Judge further explains:

An explanation of the above table is necessary. For the purpose of demonstrating the territorial jurisdiction of two High Courts in State A and State B, there are four possible situations which have been set out in the table above. At S. No. 1, the person, authority or government to whom the writ is to be issued is located in State A. The cause of action has also arisen in whole or in part in State A.

Therefore, it is the High Court of State A alone which has jurisdiction both under Article 226 (1) as well as under Article 226 (2). In the case of S. No.2, the person, authority or government is located in State A, but the cause of action has arisen (in whole or in part) in State B, the territorial jurisdiction for the filing of a writ petition would lie both with the High Court of State A and of State B. The High Court of State A would have jurisdiction by virtue of Article 226 (1) inasmuch as the location of the person, authority or government to whom the writ is to be issued is within that State.

The High Court of State B would have jurisdiction because, although the location of the person, authority or government is in State A, the cause of action (in whole or in part) has arisen in State B. The next case is given under S. No. 3. Here the location of the person, authority or government is in State B, but the cause of action has arisen in State A. In such a situation, both the High Courts of State A and B would have jurisdiction. But the High Court of State A would have jurisdiction under Article 226 (2) on account of cause of action and the High Court of State B would have jurisdiction by virtue of Article 226 (1) on account of location. Lastly, at S. No. 4 is a case which is the inverse of the situation in S. No.1, both the location and the cause of action arise in State B.

Therefore, it would be the High Court of State B alone which would have jurisdiction to entertain the writ petition both under Article 226 (1) and 226 (2).. This clarifies the position with regard to the territorial jurisdiction of a High Court in respect of a writ petition.

The Judge also referred to the Statement of Objects and Reasons appended to the Constitution (Fifteenth Amendment) Bill, 1962, which read as follows:
Under the existing Article 226 of the Constitution, the only High Court which has jurisdiction with respect to the Central Government is the Punjab High Court.

This involves considerable hardship to litigants from distant places. It is, therefore, proposed to amend Article 226 so that when any relief is sought against any Government, authority or person for any action taken, the High Court within whose jurisdiction the cause of action arise may also have jurisdiction to issue appropriate directions, orders or writs.

The Judge observed:
The crucial words are only and may also. The object was not to take away the jurisdiction of the High Court's which they had prior to the introduction of the amendment but, to enable other High Courts to also have jurisdiction provided the cause of action arose within their normal jurisdictional precincts.

[Supreme Court of India in Alchemist Limited Vs State Bank of Sikkim, (2007) 11 SCC 23] observed that the effect of the amendment was that the accrual of cause of action was made an additional ground to confer jurisdiction on a High Court under Article 226 of the Constitution. It observed thus:
The legislative history of the constitutional provisions, therefore, make it clear that after 1963, cause of action is relevant and germane and a Writ Petition can be instituted in a High Court within the territorial jurisdiction of which cause of action in whole or in part arises.

What is Cause of Action?

In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Cause of Action can be defined as every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in cause of action. Cause of action implies a right to sue. [Om Parkash Srivastava v/s Union of India & Anr,, (2006) 6 SCC 207].

In [Oil & Natural Gas Commission v/s Utpal Kumar Basu & Ors., (1994) 4 SCC 711], it was observed that in determining the objection of lack of territorial jurisdiction the Court must take 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. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition.

Some Case Laws
Let us look at some case laws, which illustrate the application of Article 226 (2) of Constitution of India.

[C.B.I. Anti - Corruption Branch Vs. Narayan Diwakar, AIR 1999 SC 2362]

Narayan Diwakar was an Officer of the Indian Administrative Service, who was officiating as Collector of Daman and then transferred to Arunachal Pradesh. Even prior to the transfer, three First Information Reports were lodged by the Central Bureau of Investigation, at Bombay. The Superintendent of Police, CBI, Anti - Corruption Bureau, Bombay, issued a wireless message to the Chief Secretary, Arunachal Pradesh to advise the IAS Officer to meet the Inspector of Police, CBI, ACB, Bombay, in connection with the investigation of one of the FIRs. The IAS Officer challenged the same before the High Court at Gauhati, which invoked its jurisdiction under Art.226 (2) and quashed the summons. The Supreme Court held that the Gauhati High Court was clearly in error in deciding the question of jurisdiction in favour of the officer.

Reading of an advertisement in a place will not give rise to cause of action

In [Oil & Natural Gas commission Vs. Utpal Kumar Basu & Ors, (1994) 4 SCC 711], ONGC brought out an advertisement calling for tenders to set up a Kerosene Recovery Processing Unit at Hazira Complex in Gujarat. The respondent, based in Calcutta, came to know of the floating of such tender from a newspaper circulated within the Territorial jurisdiction of the Calcutta High Court; applied for the same and later on being denied of consideration, approached the Calcutta High Court against the grant sought to be made in favour of another tenderer. Assuming jurisdiction, the High Court passed an order in favour of the Petitioner, which was challenged by the ONGC before the Supreme Court.

The SC held that the fact that the advertisement was read in Calcutta and that the tender and related messages were sent from Calcutta were found to be irrelevant insofar as considering the issue raised in the lis.

The Apex Court expressed the view that none of the facts pleaded to invoke the jurisdiction constituted facts forming an integral part of the cause of action.

Facts having no bearing on the dispute are not part of cause of action.

In [Union of India Vs. Adani Exports, (2002) 1 SCC 567], Adani Exports Ltd invoked the jurisdiction of the Gujarat High Court, claiming the benefit of a Scheme introduced under the Import Export Policy on grounds that they carried on the business from Ahmedabad.
The SC held that each and every fact pleaded in an application does not ipso facto lead to a conclusion that those facts give rise to a cause of action unless those facts are facts which have a nexus or relevance with the lis 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, the SC held.
Jurisdiction of HC cannot be invoked by challenging constitutionality of a statute in vacuum.

In [Kusum Ingots & Alloys Ltd. Vs. Union of India, (2004) 6 SCC 254], a Company having its Registered Office at Mumbai, obtained a loan from Bhopal and challenged the vires of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act) before the Delhi High Court when proceedings were taken by the creditor Bank under the said Act. The jurisdiction of the Delhi High Court was invoked on the ground that the seat of the Union Government was in Delhi and the High Court of Delhi has the requisite jurisdiction. The Supreme Court found that the jurisdiction of a High Court cannot be invoked to determine a Constitutional question in a vacuum and the same has to be agitated before the High Court, within whose Territorial jurisdiction, the injury was occasioned. [Nawal Kishore Vs Union of India, (2014) 9 SCC 329]

In this case, the appellant was a seaman, registered as such by the Department of Shipping, Government of India, at Mumbai. He was declared unfit for sea faring activities due to his heart condition and his registration was cancelled. On being so discharged, the appellant settled down at his native place, within the State of Bihar, and made representations raising financial claims, as per the statutory provisions and the terms of the contract.

The disability compensation claim was answered by the Official Respondents pointing out his entitlement to severance compensation; but declining any disability compensation, as such, which, according to the Official Respondents, was an entitlement to persons who were disabled in the course of seafaring activities. The dismissal of the Writ Petition by the High Court of Patna was found to be bad, on the specific facts arising in the aforesaid case.

Cause of action arises at the place where order is passed.

In Kusum Ingots, the SC also held that cause of action arises at the place where the order was passed.
When an order, however, is passed by a Court or Tribunal or an executive authority whether under provisions of a Statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the Appellate Authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the Appellate Authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the Appellate Authority is also required to be set aside and as the order of the original authority merges with that of the Appellate Authority.

Mere service of order not a part of cause of action

J&K High Court in [Atal Bihari Vs Union of India & Ors., 2008 (1) JKJ 53] while following the law laid down by various judgments of Hon'ble Supreme Court of India including that of [State of Rajasthan Vs Swaika Properties, (1985) 3 SCC 217] holding that a mere communication of a notice would not give rise to any cause of action unless service is notice was integral part of cause of action. Likewise in [Aligarh Muslim University Vs Vinay Engineering Enterprises (P) Limited, (1994) 4 SCC 710 and [National Textile Corporation Ltd. Vs Haribox Sawalram & Ors., JT 2004 (4) SC 508], it has been observed that mere fact that the writ petitioner received reply to the correspondence made by it at Calcutta would not constitute the integral part of cause of action, therefore, Calcutta High Court did not have the jurisdiction to maintain the writ petition. In case of [Union of India Vs Adani Exports Ltd. & Anr., AIR 2002 SC 126], similar question arose which was answered in the same manner holding that entire facts pleaded in support don't give rise to cause of action as within court's territorial jurisdiction.

A Full Bench of the High Court of Kerala held that mere service of order at a place is not sufficient to give rise to cause of action for assuming territorial jurisdiction under Article 226 (2) of Constitution of India. [Registrar, Indian Maritime University Vs Dr. K. G. Vishwanathan & Anr., 2014 (4) KHC 451 (FB)]

The Full Bench overruled the view expressed by a Division Bench in Writ Petition No. 1549 of 2006 titled [Selvin Abraham Vs Punjab and Sind Bank, decided on 28.06.2013] that service of notice of dismissal is an integral part of cause of action.

Written by: Dinesh Singh Chauhan, Advocate, J&K High Court of Judicature, Jammu.
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