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Territorial jurisdiction for HC to entertain writ must be answered on averments in petition: SC

Shanti Devi @ Shanti Mishra v. Union of India and Ors.

Civil Appeal No.3630 of 2020 (Arising out of SLP(c)No.18375 of 2018), 05 November, 2020.

The Hon’ble Supreme Court comprising of Justice Ashok Bhushan, Justice M.R.Shah and Justice Subhash Reddy reiterated in a case that 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 husband of the appellant Shri Bashishtha Narayan Mishra was employed in Coal India Limited. Late B.N.Mishra, husband of the appellant, did not apply for the pension scheme under 1998 pension scheme. Later he applied for pension under the notification dated 9.1.2002, which amended the coal mines pension scheme, 1998 by inserting paragraph 2A in the Scheme providing that an employee, who had not opted for the Coal Mines Family Pension Scheme, 1971 but is covered by the Provident Fund Scheme may opt for pension within a period of nine months.

The pension was sanctioned to Shri Mishra after about 14 months from retirement, thereafter, he started receiving pension w.e.f. May, 2005. Late Shri B.N. Mishra being native of Village Bhuskol, Police Station, Darbhanga, District Darbhanga, he had claimed payment for pension from Darbhanga, State of Bihar. Pension started in account of Late Shri B.N. Mishra with State Bank of India, Darbhanga, and State of Bihar.

A Writ Petition No. 13955 of 2006 was filed by late Shri B.N. Mishra in Patna High court where he prayed for grant of refund of Rs.1,33,559/-, which was wrongly withheld/ illegally deducted from the writ petitioner. The said writ petition was dismissed on 08.02.2013 on the ground of lack of territorial jurisdiction.

Subsequently, late Shri B.N. Mishra filed Writ Petition No. 4930 of 2013 in Jharkhand High Court for the relief which he had claimed in the Writ Petition No.13955 of 2006 before Patna High Court. When notice of the writ petition filed by late Shri B.N. Mishra in Jharkhand High Court was received by office of Regional Provident Fund Commissioner, Asansol, a letter dated 07.10.2013 was issued to the husband of the appellant at his place of residence, i.e., Village Bhuskol, Police Station Darbhanga, District Darbhanga, State of Bihar stating that Shri B.N. Mishra having not opted initially for pension scheme in pursuance of 1998 notification, he could not have opted for pension in the year 2002. It was stated that Pension of Shri B.N. Mishra was erroneously settled by Regional Commissioner, hence, Rs.8,01,334/- is to be recovered towards pension payment from May, 2005 to September, 2013. By further letter dated 06.11.2013 issued by Regional Commissioner, Coal Mines Provident Fund, Region-1, Asansol, he was directed to refund amount of Rs.8,09,268/- and entire pension contribution alongwith interest. He was communicated that it has been decided to stop payment of monthly pension w.e.f. November, 2013.

A Writ Petition No. 5999 of 2014 was filed by late Shri B.N. Mishra in Patna High Court where he challenged the letter dated 07.10.2013 and 06.11.2013 and also sought direction for payment of pension to the petitioner with interest. Learned Single Judge noticed the earlier order of the High Court dated 08.02.2013 by which his earlier Writ Petition No.13955 of 2006 was dismissed on the ground of lack of territorial jurisdiction. A LPA No.1265 of 2017 was filed against the judgment of learned Single Judge dated 04.08.2017. During the pendency of writ petition, Shri B.N. Mishra died and his wife Shanti Devi was substituted as writ petitioner. LPA was filed before the Division Bench against the judgment of learned Single Judge, which has been dismissed by the impugned judgment, aggrieved by which order, this appeal has been filed.

The questions of law framed and answered by the Court were:

(i) Whether the writ petition filed by late Shri B.N. Mishra being Writ Petition No. 5999 of 2014 is similar to Writ Petition No. 13955 of 2006 and the Patna High Court had territorial jurisdiction to entertain the writ petition?
(ii) Whether part of cause of action for filing the Writ Petition No. 5999 of 2014 arose within the territorial jurisdiction of Patna High Court?

The counsel for the Appellant submitted that (i) The earlier Writ Petition No.13955 of 2006 was filed on different cause of action where the substantial prayer was for refund of the amount illegally deducted whereas Writ Petition No.5999 of 2014 was on entirely different cause of action. (ii) Late Shri B.N. Mishra was receiving pension at Darbhanga, which pension having been stopped from November, 2013, the cause of action arose within the territorial jurisdiction of Patna High Court.

Counsels for the respondents submitted that (i) Shri B.N. Mishra after dismissal of his earlier writ petition filed Writ Petition No.4930 of 2013 before the Jharkhand High Court at Ranchi, which clearly proves that Shri B.N. Mishra had accepted the jurisdiction of Jharkhand High Court and pursued his writ petition there. The mere fact that letters dated 07.10.2013 and 06.11.2013 were received at Darbhanga, the Patna High Court shall have no territorial jurisdiction to entertain the writ petition. (ii) Also submitted that on the principle of forum conveniens, the writ petition could not have been entertained at Patna and the writ petition ought to have been prosecuted in the Jharkhand High Court

The court while explaining the term “cause of action”, among other things. referred to Mulla on code of civil procedure, Halsburys law of England, black laws dictionary and the judgments of the Supreme Court in Navinchandra N. Majithia Vs. State of Maharashtra and Ors., (2000) 7 SCC 640 and Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and Ors., (2004) 3 SCC 277,. The Court also reproduced the relevant part of the judgment from Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Ors., (1994) 4 SCC 711.

In the above regard, the court observed the following:

“Form the facts of the present case, we are of the considered opinion that part of cause of action has arisen within the territorial jurisdiction of Patna High Court. The deceased petitioner was continuously receiving pension for the last 08 years in his saving bank account in State Bank of India, Darbhanga. The stoppage of pension of late B.N. Mishra affected him at his native place, he being deprived of the benefit of pension which he was receiving from his employer. The employer requires a retiring employee to indicate the place where he shall receive pension after his retirement. Late Shri B.N. Mishra had opted for receiving his pension in State Bank of India, Darbhabga, State of Bihar, which was his native place, fromwhere he was drawing his pension regularly for the last 08 years, stoppage of pension gave a cause of action, which arose at the place where the petitioner was continuously receiving the pension. We, thus, are of the view that the view of the learned Single Judge as well as the Division Bench holding the writ petition not maintainable on the ground of lack of territorial jurisdiction was completely erroneous and has caused immense hardship to the petitioner.” (Para 29)

Answering the second contention of the respondent counsels, the court referred to its judgment in Kusum Ingots & Alloys Ltd. Vs. Union of India and Anr., (2004) 6 SCC 254 and noted the following :

As noted above, the cause of action for filing the Writ Petition No. 5999 of 2014 was entirely different. Stoppage of pension and asking for refund of more than Rs. 08 lakhs amount had serious adverse effect on the petitioner, who was staying at his native place Darbhanga. A retired employee, who is receiving pension, cannot be asked to go to another court to file the writ petition, when he has a cause of action for filing a writ petition in Patna High Court. For a retired employee convenience is to prosecute his case at the place where he belonged to and was getting pension. The submission of the learned counsel for the respondent Nos.1 to 3 on principle of forum non conveniens has no substance. (Para 33)

In view of the above observations the Court set aside the judgment of the Patna high court and held that the Patna High Court has the jurisdiction in the matter.

Concluding, the court held:

“We are also of the view that appellant is entitled for an interim order in the writ petition for her sustenance. The appellant’s husband, who had filed the writ petition, had died during the pendency of the writ petition. After his death, the appellant, the widow was substituted. Six years have passed after filing of the writ petition wherein stoppage of pension was questioned. Appellant being the widow is also entitled for pensionary benefit for her sustenance since her husband was receiving pension. We are of the view that during the pendency of the writ petition the appellant is entitled to be paid provisional pension which shall be subject to final decision in the writ petition. We, therefore, direct respondent Nos.4 to 8 to ensure that provisional pension to the appellant is paid from the month of December, 2020, which shall be subject to final orders passed in the writ petition. The appeal is allowed accordingly.” (Para 35)

Kalidharun K M



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