Delhi High Court
Manu Jain vs Smt. Neerja Shah & Ors. on 17 March, 2011
Author: Vikramajit Sen
Bench: Chief Justice, Vikramajit Sen, Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 23rd November, 2010
Date of decision: 17th March, 2011
+ 1. W.P.(C) No.6570/2010
M/s. Sterling Agro Industries Ltd. ... Petitioner
Through: Mr.M.P. Devnath with Mr. Manish
Panda, Mr. Abhishek Anand and Mr.
Tarun Jain, Advs.
Mr.Atul Nanda, Amicus Curiae.
Versus
Union of India & Ors. ... Respondents
Through: Mr.A.S. Chandhiok, ASG
with Ms. Sonia Sharma and
Ms.Sandeep Bajaj, Advs. for UOI.
Mr. Mukesh Anand with Mr. Shailesh
Tiwari, Mr. Sumit Batra & Mr.R.C.S.
Bhadoria, Advs. for R-2 & R-3.
2. W.P.(C) No.8399/2009
Jan Chetna ... Petitioner
Through: Mr. Sanjay Parikh with Mr.Ritwick
Dutta and Mr. Rahul Choudhary, Advs.
Versus
Ministry of Environment and Forests & Ors. ... Respondents
Through: Mr.D.K. Sharma, Adv. for R-1.
Ms. Yogmaya Agnihotri, Adv. for R-2.
Mr.Ashwani Mata, Sr. Adv. with
Mr.Akshay Ringe and Ms. Kanika
Agnihotri, Advs. for R-3.
Mr.A.S. Chandhiok, ASG with Mr.
Mukesh Anand, Mr. Shailesh Tiwari,
Mr. Sumit Batra, Mr.Rajesh Banati &
Ms. Sweta Kakkad, Advs.
W.P.(C) No.6570/2010 with connected matters Page 1 of 23
3. W.P.(C) No.2447/2010
Manu Jain ... Petitioner
Through: Mr. R. Santhanam with Mr.A.P. Sinha,
Advs.
Versus
Smt. Neerja Shah & Ors. ... Respondents
Through: Mr.A.S.Chandhiok, ASG with
Mr.Mukesh Anand and Mr.Shailesh
Tiwari, Advs.
4. W.P.(C) No.2448/2010
M/s Bafna Healthcare Pvt. Ltd. & Ors. ... Petitioners
Through: Mr. R. Santhanam with Mr.A.P. Sinha,
Advs.
Versus
Commissioner of Central Excise Delhi-IV & Ors. ... Respondents
Through: Mr.A.S.Chandhiok, ASG with
Mr.Mukesh Anand and Mr.Shailesh
Tiwari, Advs.
5. W.P.(C) No.6953/2010
The Commissioner of Trade Tax & Anr. ... Petitioners
Through: Mr.R.K. Singh Yadav with Mr. Amit
Upreti, Advs.
Versus
M/s. Ricoh India Ltd. & Ors. ... Respondents
Through: None.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE MANMOHAN
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? No
W.P.(C) No.6570/2010 with connected matters Page 2 of 23
DIPAK MISRA, CJ
Regard being had to the commonality of the primary controversy
relating to the jurisdiction of the High Court of Delhi being involved in these
writ petitions, they were heard analogously and the said issue is adverted to
and dealt with by a singular order. For the sake of clarity and convenience,
we shall adumbrate the facts in W.P.(C) No.6570/2010
2. Expressing doubt with regard to the correctness of the decision in New
India Assurance Company Limited v. Union of India and others, AIR 2010
Delhi 43 (FB), a Division Bench thought it appropriate to refer the matter for
reconsidered by a Full Bench and, accordingly, a Full Bench was constituted
and the matter has been placed before us for the aforesaid purpose.
3. Before we proceed to analyze and appreciate the ratio in New India
Assurance Company Limited (supra), we think it apposite to have a brief
resume of the necessitous facts in the present writ petition. As is evident, in
invocation of the jurisdiction under Article 226 of the Constitution of India,
the petitioner has called in question the legal defensibility of the order No.214
- 215/10-Cus dated 9.7.2010, Annexure-1, passed by the Revisionary
Authority, Government of India, Ministry of Finance, Department of
Revenue, whereby the revision application preferred by the petitioner has
been rejected concurring with the view of the Commissioner (Appeal-I),
Customs & Central Excise, Indore whereby the appellate authority has
affirmed the order passed by the Assistant Commissioner of Customs ICD,
W.P.(C) No.6570/2010 with connected matters Page 3 of 23
Malanpur who had expressed the view that no drawback facility is admissible
to the petitioner as it had, by way of procuring duty free inputs under Rule
19(2) of the Central Excise Rules, 2002, contravened clause (ii) of the second
proviso to Rule 3(1) of the Central Excise Drawback Rules, 1995 and also
condition No.7(F) of the notification No.68/2007-Cus (NT) and condition
No.8(F) of the notification No.103/2008-Cus (NT).
4. It is undisputed that the petitioner industry is situate at Industrial Area,
Q-5-6, Ghirongi, Dist. - Bhind, Malanpur in the State of Madhya Pradesh.
The initial order was passed on 30.5.2009 by the Assistant Commissioner of
Customs ICD, Malanpur, Dist. Bhind (M.P.). The appellate order was passed
by the Commissioner (Appeals)-I, Customs : Central Excise & Service Tax at
Indore. The petitioner, as is evident, has knocked at the doors of this Court
for exercise of its inherent jurisdiction solely on the ground that the revisional
authority, the Joint Secretary to the Government of India, is in Delhi and,
therefore, this Court has the territorial jurisdiction to deal with the lis in
question. It is urged in the petition that it is the Joint Secretary who is
answerable to justify his order and, hence, this Court can dwell upon the
controversy. In the grounds of the writ petition, reliance has been placed on
New India Assurance Company Limited (supra).
5. We have heard the learned counsel for the parties and Mr. Atul Nanda,
learned counsel as Amicus Curiae.
6. Before we scan the ratio laid down in New India Assurance Company
W.P.(C) No.6570/2010 with connected matters Page 4 of 23
Limited (supra) by the Full Bench in its exactitude, it is apposite to refer the
history of Article 226 of the Constitution of India. Initially, Article 226 of the
Constitution of India 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.
7. On the basis of the aforesaid constitutional provision, a strict
construction was placed and the plea of cause of action or forum conveniens
was not given acceptance by the Apex Court in Election Commission India v.
Saka Venkata Rao, AIR 1953 SC 210. Their Lordships opined in the said
case as follows:
"The rule that cause of action attracts jurisdiction in suits
is based on statutory enactment and cannot apply to writs
issuable under Article 226 which makes no reference to
any cause of action or where it arises but insists on the
presence of the person or authority "within the
territories" in relation to which the High Court exercises
jurisdiction."
8. In Ltd. Col. Khajoor Singh v. Union of India, AIR 1961 SC 532, a
Division Bench of Jammu and Kashmir High Court had upheld the
W.P.(C) No.6570/2010 with connected matters Page 5 of 23
preliminary objections raised before it and had held that it had no jurisdiction
to issue a writ against the Union of India and to arrive at the said conclusion,
the High Court had placed reliance on the decisions in Saka Venkata Rao
(supra) and K.S. Rashid and Son v. The Income Tax Investigation
Commission etc., AIR 1954 SC 207. It was contended before the Apex
Court that the aforesaid two decisions were distinguishable from the factual
matrix therein inasmuch as in the earlier cases, the Election Commission and
the Income Tax Investigation Commission were statutory bodies which have
their location in Delhi and, therefore, the view was expressed in that manner.
The majority posed two questions, namely, (i) whether the Government of
India as such can be said to have a location in a particular place, that is, New
Delhi, irrespective of the fact that its authority extends over all the States and
its officers function throughout India; and (ii) whether there is any scope for
introducing the concept of cause of action as the basis of exercise of
jurisdiction under Article 226. Their Lordships, while dealing with the first
aspect, opined thus:
"It would, therefore, in our opinion be wrong to introduce
in Article 226 the concept of the place where the order
passed has effect in order to determine the jurisdiction of
the High Court which can give relief under Article 226.
The introduction of such a concept may give rise to
confusion and conflict of jurisdiction."
9. Thereafter, it has been held as follows:
"There can, therefore, be no escape from the conclusion
that these words in Article 226 refer not to the place
W.P.(C) No.6570/2010 with connected matters Page 6 of 23
where the Government may be functioning but only to
the place where the person or authority is either resident
or is located. So far therefore as a natural person is
concerned, he is within those territories if he resides there
permanently or temporarily. So far as an authority (other
than a Government) is concerned, it is within the
territories if its office is located there. So far as a
Government is concerned it is within the territories only
if its seat is within those territories."
10. Thereafter, their Lordships answered the second question in the
following terms:
"16. Article 226 as it stands does not refer anywhere to
the accrual of cause of action and to the jurisdiction of
the High Court depending on the place where the cause
of action accrues being within its territorial jurisdiction.
Proceedings under Article 226 are not suits; they provide
for extraordinary remedies by a special procedure and
give powers of correction to the High Court over persons
and authorities and these special powers have to be
exercised within the limits set for them. These two
limitations have already been indicated by us above and
one of them is that the person or authority concerned
must be within the territories over which the High Court
exercises jurisdiction. Is it possible then to overlook this
constitutional limitation and say that the High Court can
issue a writ against a person or authority even though it
may not be within its territories simply because the cause
of action has arisen within those territories? It seems to
us that it would be going in the face of the express
provision in Art. 226 and doing away with an express
limitation contained therein if the concept of cause of
action were to be introduced in it. Nor do we think that it
is right to say that because Art. 300 specifically provides
for suits by and against the Government of India, the
proceedings under Art. 226 are also covered by Art. 300.
It seems to us that Art. 300 which is on the same line as
S.176 of the Government of India Act, 1935, dealt with
suits as such and proceedings analogous to or consequent
upon suits and has no reference to the extraordinary
remedies provided by Art. 226 of the Constitution. The
concept of cause of action cannot in our opinion be
W.P.(C) No.6570/2010 with connected matters Page 7 of 23
introduced in Art. 226, for by doing so we shall be doing
away with the express provision contained therein which
requires that the person or authority to whom the writ is
to be issued should be resident in or located within the
territories over which the High Court has jurisdiction. It
is true that this may result in some inconvenience to
person residing far away from New Delhi who are
aggrieved by some order of the Government of India as
such, and that may be a reason for making a suitable
constitutional amendment in Art. 226."
11. After the said decision came into the field, the Parliament brought the
15th Amendment and inserted Clause (1A) in the Constitution by the 15th
Amendment Act, 1963. Clause (1A) read as follows:
"(1A) 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."
12. By the 42nd constitutional amendment, clause (1A) was renumbered as
Clause (2) and in the present incarnation, it reads as follows:
"(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."
13. From the aforesaid chronological narration of the growth of Article 226
W.P.(C) No.6570/2010 with connected matters Page 8 of 23
of the Constitution, the concept of cause of action arising wholly or in part
came into existence for exercise of power under the said Article.
14. Presently, we shall refer to the decision of the Full Bench in New India
Assurance Company Limited (supra) to perceive how it has dealt with the
concept of jurisdiction regard being had to the concept of cause of action and
the appreciation of the ratio by the Full Bench of various citations referred to
by it. It is worth noting that the matter travelled to the Full Bench by
reference made by the Division Bench while hearing a letters patent appeal
from an order of the single Judge who had dismissed the writ petition
summarily on the ground that significant part of the cause of action could not
have been said to have arisen within the territorial jurisdiction of this Court
and merely because the order under challenge had been passed by the
appellate authority located within the territorial jurisdiction, the same could
not be sufficient enough for conferment of jurisdiction. The learned single
Judge, to arrive at the said conclusion, had placed reliance on the decisions in
Ambica Industries v. Commissioner of Central Excise, 2007 (213) ELT
323(SC), Bombay Snuff (P) Ltd. v. Union of India, 2006 (194) ELT 264
(Del), Rajkumar Shivhare v. Assistant Director of Enforcement, Mumbai
154 (2008) DLT 28 and West Coast Ingots (P) Ltd. v. Commissioner of
Central Excise, New Delhi, 2007 (209) ELT 343 (Del). The Full Bench
referred to the arguments canvassed at the Bar, took note of the legislative
history of Article 226 of the Constitution of India and referred to the decisions
of the Apex Court in Collector of Customs, Calcutta v. East India
W.P.(C) No.6570/2010 with connected matters Page 9 of 23
Commercial Co. Ltd., Calcutta and others, AIR 1963 SC 1124, Kishore
Rungta and ors. v. Punjab National Bank and ors., 2003 (151) ELT 502
(Bom), Indian Institute of Technology v. P.C. Jain and Ors., 45 (1991)
DLT42 and Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC
254 and expressed the view that it affirms the view taken in Sri Nasiruddin v.
State Transport Appellate Tribunal, (1975) 2 SCC 671 and further placing
reliance on the decision in Navinchandra N. Majithia (supra) eventually held
thus:
"29. As held in Nasiruddin's case, even where part of
the cause of action arose, it would be open to the litigant,
who is the dominus litis to have his forum conveniens. In
the present case, since the Appellate Authority is situated
at New Delhi, the Delhi High Court has the jurisdiction
under Article 226 of the Constitution of India and,
therefore, there was no occasion for the learned single
Judge to apply the principle of forum conveniens to refuse
to exercise the jurisdiction. The principle of forum
nonconveniens originated as a principle of international
law, concerned with Comity of Nations. A domestic court
in which jurisdiction is vested by law otherwise ought not
to refuse exercise of jurisdiction for the reason that under
the same law some other courts also have jurisdiction.
However, the remedy under Article 226 being
discretionary, the court may refuse to exercise jurisdiction
when jurisdiction has been invoked mala fide. There is no
such suggestion in the present case. Nothing has been
urged that it is inconvenient to the contesting respondent
to contest the writ before this Court. The counsel for the
contesting respondent has not disputed the jurisdiction of
this Court; his main contention is of possibility of conflict.
We do not find any merit in this contention of the counsel
for the contesting respondent. First, that is not the case in
hand. The contesting respondent is not aggrieved by the
order of the appellate authority and has not assailed the
same before any High Court. Thus, there is no possibility
of conflicting judgments or confusion in the present case.
Secondly, even if in a given case such a situation were to
arise, the same is bound to be brought to the notice of the
W.P.(C) No.6570/2010 with connected matters Page 10 of 23
court and the likelihood of both courts proceeding with
the writ petition and conflicting judgments is remote. In
such a situation, following the principle in Section 10 of
the Code of Civil Procedure, the subsequently filed
petition may be stayed in view of the earlier petition
entailing similar questions or the court may ask the
petitioner to approach the High Court where the earlier
petition has been filed. In our opinion, it will be
inappropriate to refuse to exercise jurisdiction merely on
the basis of possibility of conflict of judgments,
particularly in view of the clear language of Article
226(2).
30. Having held that this Court has jurisdiction, it
cannot be said that only a insignificant or miniscule part
of the cause of action has accrued within the jurisdiction
of this Court or that the substantial cause of action has
accrued within the jurisdiction of the High Court of
Andhra Pradesh. In fact, the sole cause of action for the
writ petition is the order of the appellate authority and
which cause of action has accrued entirely within the
jurisdiction of this Court and this Court would be failing
in its duty/function if declined to entertain the writ
petition on the ground of the contesting respondent being
situated within the jurisdiction of the High Court of
Andhra Pradesh. Though the petition has been filed under
Article 226 of the Constitution, it cannot be lost sight of
that jurisdiction in such cases under Article 226 is
overlapping with Article 227. Article 227 is clear in this
regard. The power of superintendence over Tribunals is
vested in the High Court within whose jurisdiction the
Tribunal is situated. In that light of the matter also, it
cannot be said that only insignificant or miniscule part of
the cause of action has accrued within the jurisdiction of
this Court. The appellate authority in the present case
having passed the order which is impugned in the petition,
being situated within the jurisdiction of this Court, even if
the cause of action doctrine were to be invoked,
substantial part of the cause of action has accrued within
the jurisdiction of this Court only. Even the language of
the impugned order giving rise to the cause of action in
the writ petition, discloses significant cause of action to
have accrued within the jurisdiction of this Court. This
Court while deciding this writ petition is not required to
issue any direction, order or writ to any person outside its
jurisdiction. Section 110H of the Insurance Act provides
W.P.(C) No.6570/2010 with connected matters Page 11 of 23
for appeal to the Central Government, seat whereof is
admittedly within the jurisdiction of this Court.
CONCLUSION
31. For the foregoing reasons, we hold that where an
order is passed by an appellate authority or a revisional
authority, a part of cause of (sic action) arises at that
place. When the original authority is situated at one place
and the appellate authority is situated at another, a writ
petition would be maintainable at both the places. As the
order of 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 petitioner is dominus litis to choose his
forum, and that since the original order merges into the
appellate order, the place where the appellate authority is
located is also forum conveniens."
[Emphasis added]
15. On a keen perusal of the decision of the Full Bench, it is clear as day
that it has expressed the view which can be culled out in seriatim as follows:
(i) Once the Court comes to hold that it has jurisdiction, the plea
that only an insignificant or miniscule part of the cause of action
has accrued within the jurisdiction of the Court or that the
substantial cause of action has accrued in another State is
inconsequential.
(ii) The sole cause of action emerges when an order by the appellate
authority situated within the territorial jurisdiction of Delhi is
passed and when the sole cause of action accrues entirely within
the jurisdiction of this Court, declining to entertain the writ
petition would amount to failure of duty of the Court.
(iii) This Court has jurisdiction under Article 227 since it has the
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power of superintendence over tribunals situated within its
jurisdiction and judged in that light, it cannot be said that only
insignificant or miniscule part of the cause of action has accrued
within the jurisdiction of this Court.
(iv) Even if the doctrine of cause of action is adopted or invoked, the
substantial part of the cause of action arises because the order
under assail is that of the appellate authority / tribunal which is
situated in Delhi.
(v) The petitioner is dominus litis to choose the forum. The place
where the appellate forum is situated is also the forum
conveniens.
(vi) The remedy under Article 226 being discretionary, the Court
may refuse to exercise jurisdiction when jurisdiction has been
invoked malafide.
16. Presently, we shall proceed to advert to the authorities that have been
referred to and relied upon by the Full Bench for the simon pure reason that
understanding of the principles exposited therein would enable us to
appreciate the enunciation of the law by the Full Bench.
17. In East India Commercial Co. Ltd. (supra), the Apex Court had opined
that on principle when once an order of an original authority is taken in
appeal to the appellate authority which is located beyond the territorial
jurisdiction of the High Court, it is the order of the latter authority which is
the operative order after the appeal is disposed of; and as the High Court
W.P.(C) No.6570/2010 with connected matters Page 13 of 23
cannot issue a writ against the appellate authority for want of territorial
jurisdiction, it would not be open to it to issue a writ to the original authority
which may be within its territorial jurisdiction once the appeal is disposed of,
though it may be that the appellate authority has merely confirmed the order
of the original authority and dismissed the appeal. The Constitution Bench
opined that it is the appellate order which is the operative order after the
appeal is disposed of as the order on the principle as a decree of the lower
court merges in the decree of the appellate court whether there is reversal or
modification or mere confirmation.
18. It is worth noting that the aforesaid decision was rendered on 30.4.1962
prior to the 15th Amendment to the Constitution of India had come into force.
19. In the case of Sri Nasiruddin (supra), it has been held thus:
"...the expression "cause of action" in an application
under Article 226 would be as the expression is
understood and if the cause of action arose because of the
appellate order or the revisional order which came to be
passed at Lucknow then Lucknow would have jurisdiction
though the original order was passed at a place outside the
areas in Oudh. It may be that the original order was in
favour of the person applying for a writ. In such case an
adverse appellate order might be the cause of action. The
expression "cause of action" is well-known. If the cause
of action arises wholly or in part at a place within the
specified Oudh areas, the Lucknow Bench will have
jurisdiction. If the cause of action arises wholly within the
specified Oudh areas, it is indisputable that the Lucknow
Bench would have exclusive jurisdiction in such a matter.
If the cause of action arises in part within the specified
areas in Oudh it would be open to the litigant who is the
dominus litis to have his forum conveniens. The litigant
has the right to go to a Court where part of his cause of
action arises. In such cases, it is incorrect to say that the
litigant chooses any particular Court. The choice is by
reason of the jurisdiction of the Court being attracted by
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part of cause of action arising within the jurisdiction of
the Court..."
20. In Kishore Rungta and ors. (supra), a writ petition was filed
challenging the order passed by the Debt Recovery Appellate Tribunal,
Mumbai dismissing an order of the Debt Recovery Appellate Tribunal, Jaipur.
A preliminary objection was raised to the jurisdiction of the High Court of
Bombay. The Division Bench referred to the decisions in East India
Commercial Co. Ltd., Calcutta and others (supra), Damomal Kausomal
Raisinghani v. Union of India, AIR 1967 Bom 355, Navinchandra N.
Majithia v. State of Maharashtra, AIR 2000 SC 2966 and Sita Ram
Singhania v. Bank of Tokyo-Mitsubishi Ltd. and ors, AIR 2000 SC 2180
and came to opine thus:
"16. Mr. Tulzapurkar lastly submitted that a part of the
cause of action having arisen in Mumbai, this Court has
jurisdiction to entertain the Petition in view of Article
226(2) of the Constitution. We are in agreement with Mr.
Tulzapurkar. The 15th amendment to the Constitution
which introduced clause 2 in Article 226 was intended to
widen the ambit of the area for reaching the writs issued
by the High Court. Clause 2 of Article 226 is as under :
"(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."
In this connection Mr. Tulzapurkar relied upon the
judgment of the Supreme Court in the case of
Navinchandra N. Majithia v. State of Maharashtra, The
W.P.(C) No.6570/2010 with connected matters Page 15 of 23
Supreme Court held that the power conferred on the High
Courts under Article 226 could as well be exercised by
any High Court exercising Jurisdiction in relation to the
territories within which the cause of action, wholly or in
part arises and it is no matter that the seat of the Authority
concerned is outside the territorial limits of the
jurisdiction of that High Court. The Supreme Court
further held that the amendment was aimed at widening
the width of the area for reaching the writs issued by
different High Courts. The Supreme Court also held that
the words "cause of action wholly or in part arises" seem
to have been lifted from Section 20 of the Code of Civil
Procedure, which section also deals with the jurisdictional
aspect of the Courts."
21. In Alchemist Ltd. and Anr. v. State Bank of Sikkim and ors., (2007)
11 SCC 335, after referring to the decisions in A.B.C. Laminart (P) Ltd. v.
A.P. Agencies, AIR 1989 SC 1239, Union of India v. Oswal Woollen Mills
Ltd., (1984) 2 SCC 646, State of Rajasthan v. Swaika Properties, AIR 1985
SC 1289, Oil and Natural Gas Commission v. Utpal Kumar Basu and
others, (1994) 4 SCC 711, CBI, Anti-Corruption Branch v. Narayan
Diwakar, (1999) 4 SCC 656, Union of India v. Adani Exports Ltd., (2002) 1
SCC 567, Kusum Ingots & Alloys Ltd. (supra) and National Textile Corpn.
Ltd. v. Haribox Swalram, (2004) 9 SCC 786, the Bench expressed the view
as follows:
"37. From the aforesaid discussion and keeping in view
the ratio laid down in a catena of decisions by this Court,
it is clear that for the purpose of deciding whether facts
averred by the appellant- petitioner would or would not
constitute a part of cause of action, one has to consider
whether such fact constitutes a material, essential, or
integral part of the cause of action. It is no doubt true that
even if a small fraction of the cause of action arises within
the jurisdiction of the court, the court would have
territorial jurisdiction to entertain the suit/petition.
Nevertheless it must be a "part of cause of action",
nothing less than that.
W.P.(C) No.6570/2010 with connected matters Page 16 of 23
38. In the present case, the facts which have been
pleaded by the Appellant Company, in our judgment,
cannot be said to be essential, integral or material facts so
as to constitute a part of "cause of action" within the
meaning of Article 226(2) of the Constitution. The High
Court, in our opinion, therefore, was not wrong in
dismissing the petition."
22. Be it noted that we have been commended at the Bar to certain
authorities which have dealt with the facet of cause of action. We think it
apposite to notice a few of them. In Utpal Kumar Basu and others (supra), a
three-Judge Bench of the Apex Court, while dealing with the territorial
jurisdiction in the backdrop of Article 226(2), has opined thus:
"5. Clause (1) of Article 226 begins with a non-
obstante clause-notwithstanding anything in Article 32 -
and provides that 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, for the enforcement
of any of the rights conferred by Part III or for any other
purpose. Under clause (2) of Article 226 the High court
may exercise its power conferred by clause (1) if the
cause of action, wholly or in part, had arisen within the
territory over which it exercises jurisdiction,
notwithstanding that the seat of such Government or
authority or the residence of such person is not within
those territories. On a plain reading of the aforesaid two
clauses of Article 226 of the Constitution it becomes clear
that 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 purpose 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 is issued is not within the said
territories. In order to confer jurisdiction on the High
Court of Calcutta, NICCO must show that at least a part
of the cause of action had arisen within the territorial
W.P.(C) No.6570/2010 with connected matters Page 17 of 23
jurisdiction of that Court. That is at best its case in the
writ petition.
6. It is well settled that the expression "cause of
action" means that bundle of facts which the petitioner
must prove, if traversed, to entitle him to a judgment in
his favour by the Court. In Chand Kour v. Partab Singh
ILR (1889) 16 Cal 98, 102 Lord Watson said:
"...the cause of action has no relation whatever to
the defence which may be set up by the defendant,
nor does it depend upon the character of the relief
prayed for by the plaintiff. It refers entirely to the
grounds set forth in the plaint as the cause of
action, or, in other words, to the media upon which
the plaintiff asks the Court to arrive at a conclusion
in his favour."
Therefore, 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 being immaterial.
To put it differently, the question of territorial jurisdiction
must be decided on the facts pleaded in the petition.
Therefore, the question whether in the instant case the
Calcutta High Court had jurisdiction to entertain and
decide the Writ Petition in question even on the facts
alleged must depend upon whether the averments made in
paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to
establish that a part of the cause of action had arisen
within the jurisdiction of the Calcutta High Court."
23. In Kusum Ingots & Alloys Ltd. (supra), the Apex Court posed the
question whether the seat of Parliament or the legislature of a State would be
a relevant factor for determining the territorial jurisdiction of a High Court to
entertain a writ petition under Article 226 of the Constitution of India. Their
Lordships not only referred to the clause (2) of Article 226 of the Constitution
W.P.(C) No.6570/2010 with connected matters Page 18 of 23
of India but also to the facet of cause of action as have been stated in Chand
Kour v. Partab Singh ILR (1887-88) 15 IA 156, Utpal Kumar Basu and
others (supra), Swaika Properties (supra), Aligarh Muslim University v.
Vinay Engg. Enterprises (P) Ltd., (1994) 4 SCC 710, Union of India v.
Adani Exports Ltd., (2002) 1 SCC 567 and Haribox Swalram (supra) and
came to hold as follows:
"19. Passing of a legislation by itself in our opinion
does not confer any such right to file a writ petition unless
a cause of action arises therefor.
20. A distinction between a legislation and executive
action should be borne in mind while determining the said
question.
21. A parliamentary legislation when receives the
assent of the President of India and is published in the
Official Gazette, unless specifically excluded, will apply
to the entire territory of India. If passing of a legislation
gives rise to a cause of action, a writ petition questioning
the constitutionality thereof can be filed in any High
Court of the country. It is not so done because a cause of
action will arise only when the provisions of the Act or
some of them which were implemented shall give rise to
civil or evil consequences to the petitioner. A writ court, it
is well settled would not determine a constitutional
question in a vacuum.
22. The court must have the requisite territorial
jurisdiction. An order passed on a writ petition
questioning the constitutionality of a parliamentary Act,
whether interim or final keeping in view the provisions
contained in clause (2) of Article 226 of the Constitution
of India, will have effect throughout the territory of India
subject of course to the applicability of the Act."
24. Thereafter, in paragraphs 27 and 29, their Lordships stated thus:
"27. 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
W.P.(C) No.6570/2010 with connected matters Page 19 of 23
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.
X X X X
29. In view of clause (2) of Article 226 of the
Constitution of India, now if a part of cause of action
arises outside the jurisdiction of the High Court, it would
have jurisdiction to issue a writ. The decision in Khajoor
Singh (supra) has, thus, no application."
25. After so stating, in paragraph 30, their Lordships held thus:
"30. We must, however, remind ourselves that even if a
small part of cause of action arises within the territorial
jurisdiction of the High Court, the same by itself may not
be considered to be a determinative factor compelling the
High Court to decide the matter on merit. In appropriate
cases, the Court may refuse to exercise its discretionary
jurisdiction by invoking the doctrine of forum conveniens.
[See Bhagat Singh Bugga v. Dewan Jagbir Sawhany, AIR
1941 Cal 670, Madanlal Jalan v. Madanlal, AIR 1949 Cal
495, Bharat Coking Coal Limited v. Jharia Talkies &
Cold Storage (P) Ltd., 1997 CWN 122, S.S. Jain & Co. v.
Union of India, (1994) 1 CHN 445 and New Horizon Ltd.
v. Union of India, AIR 1994 Del 126."
[Emphasis supplied]
26. In Ambica Industries (supra), their Lordships have expressed thus:
"40. Although in view of Section 141 of the Code of
Civil Procedure the provisions thereof would not apply to
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) CPC shall apply to the
writ proceedings also. Before proceeding to discuss the
matter further it may be pointed out that the entire bundle
of facts pleaded need not constitute a cause of action, as
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what is necessary to be proved, before the petitioner can
obtain a decree, is material facts. The expression material
facts is also known as integral facts.
41. Keeping in view the expression "cause of action"
used in Clause (2) of Article 226 of the Constitution of
India, indisputably even if a small fraction thereof accrues
within the jurisdiction of the Court, the Court will have
jurisdiction in the matter though the doctrine of forum
conveniens may also have to be considered."
[Emphasis added]
27. It is worth noting that after referring to paragraphs 12, 13 and 14 of the
said decision, the Full Bench has expressed the view in the following terms:
"26. ...The Court made it clear that in a case of this
nature, the doctrine of cause of action may not be
invoked. The tests which are relevant to petitions under
Articles 226 and 227 cannot be applied when the appellate
court exercises its jurisdiction over a tribunal situated in
more than one State. In such a situation, the High Court
situated in the State where the first court is located should
be considered to be the appropriate appellate authority.
The Code of Civil Procedure did not contemplate such a
situation. It was further observed that in Nasiruddin‟s
case (supra) and in Kusum Ingots case (supra), the Court
was not dealing with a question of this nature. Therefore,
the same are not authorities for the proposition that the
High Court, which is situated at the same place as the
situs of the tribunal, alone will have jurisdiction. If the
cause of action doctrine is given effect to, invariably more
than one High Court may have jurisdiction, which is not
contemplated.
27. In the light of the above discussion, it is clear that
the decision of the Supreme Court in Ambica Industries
and also of this Court in Bombay Snuff (P) Ltd. have no
bearing in deciding the territorial jurisdiction of the High
Court under Article 226(1) and (2) of the Constitution of
India. The distinction between statutory appeals to the
High Court and petitions under Article 226 has been
carved out by the Apex Court itself. The law laid down
with respect to statutory appeals in Ambica Industries
case is thus not applicable to writ petitions arising out of
orders of Tribunals."
W.P.(C) No.6570/2010 with connected matters Page 21 of 23
28. The two aspects which immediately emerge to the surface on an
apposite understanding of paragraph 30 in Kusum Ingots & Alloys Ltd.
(supra) and paragraph 41 of Ambica Industries (supra) are that a small part of
cause of action may confer the territorial jurisdiction on the High Court but
the same is not to be considered as the determining factor to compel the High
Court to decide the case and the High Court may refuse to exercise the
discretionary jurisdiction by invoking the doctrine of forum conveniens.
Emphasis has been laid on the concept of forum conveniens and the miniscule
part of the cause of action. Similarly, in Alchemist Ltd. and Anr. (supra),
while dealing with the facet of part of cause of action, it has been observed
that the court is to consider whether such fact constitutes a material, essential,
or integral part of the cause of action. In the said case, it has been opined that
even if a small fraction of the cause of action arises within the jurisdiction of
the court, the court would have territorial jurisdiction to entertain the petition,
nevertheless, it may and must be a "part of cause of action", nothing less than
that. The facts pleaded must show the essential, integral or material facts so
as to constitute a part of "cause of action" within the meaning of Article
226(2) of the Constitution of India.
29. Analyzed on the aforesaid backdrop, the principles that have been
culled out by the Full Bench especially the principles, namely, once the court
comes to hold that only an insignificant or miniscule part of the cause of
action has accrued within the jurisdiction of this Court or that the substantial
cause of action has accrued within the jurisdiction of another High Court is
W.P.(C) No.6570/2010 with connected matters Page 22 of 23
inconsequential, the sole cause of action arises because of the order passed by
the appellate authority which has the situs in Delhi; the denial of interference
would tantamount to failure in exercising its duty / function, and the
conclusion that the interpretation placed by it on the facet of dominus litis and
the forum conveniens are all encompassing.
30. In our considered view, the statement of law with regard to „cause of
action‟, „sole cause of action‟, „forum conveniens‟ and „the imposition of
limitation for exercise of jurisdiction under Article 226 and discretionary
exercise of power‟ have been too broadly stated in all encompassing manner
and, therefore, we are of the view that the said decision requires to be
reconsidered by a Larger Bench.
31. Let the matter be listed before the Hon‟ble Chief Justice for
constitution of appropriate Larger Bench.
CHIEF JUSTICE
VIKRAMAJIT SEN, J.
MANMOHAN, J. MARCH 17, 2011 dk W.P.(C) No.6570/2010 with connected matters Page 23 of 23