Ruchita Kaushik vs Indian Railway Welfare Organisation on 27 September, 2024

[Cites 10, Cited by 0]

Delhi High Court - Orders

Ruchita Kaushik vs Indian Railway Welfare Organisation on 27 September, 2024

1. Present appeal has been filed challenging the impugned judgement dated 21st August, 2024 passed by the learned Single Judge in W.P.(C) 11553/2024 whereby the writ petition filed by the Appellant challenging the communication dated 08th May, 2024 issued by the Respondent, was dismissed on the ground of lack of territorial jurisdiction and liberty was granted to the Appellant to approach the jurisdictional High Court.

2. Learned counsel for the Appellant states that that the entire cause of action as well as the material, essential and integral part of the cause of action which has a bearing on the lis arose within the jurisdiction of this This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/09/2024 at 21:59:42 Court. He states that the application for grant of 'No Objection Certificate' (NoC) from the Respondent was filed by the Appellant at Respondent's office in Delhi and the communication dated 08th May, 2024 was also issued in Delhi, i.e. within the jurisdiction of this Court. He further states that the Head office of the Respondent is situated within the territorial jurisdiction of this Court. He also stated that this Court in Kumud Mohan & Anr. Vs. Indian Railway Welfare Organisation & Anr. in W.P. (C) 3795/2018 has allowed a similar petition.

3. It is trite to mention that vide impugned communication dated 08th May, 2024, the Appellant's application for issuance of NOC for transfer of Flat No. 16, Block A-4, Type IV, Rail Vihar, Indirapuram, Ghaziabad was rejected on the ground that the probate order was not furnished.

4. The flat in question is situated in Ghaziabad, Uttar Pradesh and the Appellant resides in Noida, Uttar Pradesh. The effect of the impugned communication dated 08th May, 2024 is also felt by the Appellant outside the territorial jurisdiction of this Court. In essence, the material, essential and integral part of cause of action which has a bearing on the instant lis does not arise within this Court's jurisdiction.

5. The five Judges Bench of this Court in Sterling Agro Industries Ltd. Vs. Union of India, (2011) 181 DLT 658 (LB) has held as under:

32. From the aforesaid pronouncements, the concept of forum conveniens gains signification. In Black's Law Dictionary, forum conveniens has been defined as follows :

"The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses."

33. The concept of forum conveniens fundamentally means that it is obligatory on the part of the court to see the convenience of all the parties This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/09/2024 at 21:59:42 before it. The convenience in its ambit and sweep would include the existence of more appropriate forum, expenses involved, the law relating to the lis, verification of certain facts which are necessitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of. Be it noted, the apex court has clearly stated in the cases of Kusum Ingots and Alloys Ltd. v. Union of India (2004) 120 C-C 672; (2004) 6 SCC 254, Musaraf Hossain Khan v. Bhagheeratha Engg. Ltd. (2006) 130 C-C 390; (2006) 3 SCC 658 and Ambica Industries v. CCE (2007) 213 ELT 323; [2009] 20 VST 1 (S.C.), about the applicability of the doctrine of forum conveniens while opining that arising of a part of cause of action would entitle the High Court to entertain the writ petition as maintainable.

34. The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the court would not itself constitute to be the determining factor compelling the court to entertain the matter. While exercising jurisdiction under articles 226 and 227 of the Constitution of India, the court cannot be totally oblivious of the concept of forum conveniens. The Full Bench in New India Assurance Co. Ltd. v. Union of India, AIR 2010 Delhi 43; (2011) 166 Comp Cas 87 (Delhi), has not kept in view the concept of forum conveniens and has expressed the view that if the appellate authority who has passed the order is situated in Delhi, then the Delhi High Court should be treated as the forum conveniens. We are unable to subscribe to the said view.

35. In view of the aforesaid analysis, we are inclined to modify the findings and conclusions of the Full Bench in New India Assurance Co. Ltd. v. Union of India, AIR 2010 Delhi 43; [2011] 166 C-C 87 (Delhi) and proceed to state our conclusions in seriatim as follows :

(a) The finding recorded by the Full Bench that the sole cause of action emerges at the place or location where the Tribunal/appellate authority/revisional authority is situate and the said High Court (i.e., Delhi High Court) cannot decline to entertain the writ petition as that would amount to failure of the duty of the court cannot be accepted inasmuch as such a finding is totally based on the situs of the Tribunal/appellate authority/revisional authority totally ignoring the concept of forum conveniens.

(b) Even if a minuscule part of cause of action arises within the jurisdiction of this court, a writ petition would be maintainable before this court, however, the cause of action has to be understood as per the ratio laid down in the case of This is a digitally signed order.

(c) An order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated. Yet, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

(d) The conclusion that where the appellate or revisional authority is located constitutes the place of forum conveniens as stated in absolute terms by the Full Bench is not correct as it will vary from case to case and depend upon the lis in question.

(e) The finding that the court may refuse to exercise jurisdiction under article 226 if only the jurisdiction is invoked in a mala fide manner is too restricted/constricted as the exercise of the power under article 226 being discretionary cannot be limited or restricted to the ground of mala fide alone.

(f) While entertaining a writ petition, the doctrine of forum conveniens and the nature of cause of action are required to be scrutinised by the High Court depending upon the factual matrix of each case in view of what has been stated in Ambica Industries v. CCE (2007) 213 ELT 323; [2009] 20 VST 1 (S.C.) and Union of India v. Adani Exports Ltd. (2002) 1 SCC 567.

(g) The conclusion of the earlier decision of the Full Bench in New India Assurance Co. Ltd. v. Union of India, AIR 2010 Delhi 43; (2011) 166 C-C 87 (Delhi) (page 115):"... that since the original order merges into the appellate order, the place where the appellate authority is located is also forum conveniens" is not correct.

(h) Any decision of this court contrary to the conclusions enumerated hereinabove stands overruled."

6. Keeping in view the aforesaid fact that the Head office of the Respondent is situated within the territorial jurisdiction of this Court cannot be the sole determinative factor to entertain the writ petition.

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/09/2024 at 21:59:43

7. Accordingly, the present appeal is disposed of with liberty to the appellant to file proceedings before the jurisdictional High Court. Pending applications are also disposed of.

ACTING CHIEF JUSTICE TUSHAR RAO GEDELA, J SEPTEMBER 27, 2024 kct This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 28/09/2024 at 21:59:43

Unlock Advanced Research with PRISMAI

Delhi High Court - Orders