Madhya Pradesh High Court
M/S Shree Ram Agro Industries vs The State Of Madhya Pradesh on 3 August, 2021
Author: Sujoy Paul
Bench: Sujoy Paul
The High Court Of Madhya Pradesh, Bench At Indore
W.P No.11264/2021
(M/s Shree Ram Agro Industries Vs. State of MP) 1
INDORE; DATED - 03/08/2021
Shri Aditya Goyal, learned counsel for the petitioner.
Shri Pushyamitra Bhargav, learned AAG for the
respondent/State.
Learned counsel for the respondent/State raised an objection relating to maintainability of this petition filed under article 226 of the Constitution of India. It is urged that the petitioner's industry is situated at Khandwa. The search was conducted at petitioner's premises at Khandwa. Hence, the cause of action has arisen at Khandwa. As per Chapter 3 of High Court Rules, Khandwa is within the territorial jurisdiction of Principal Bench of this Court. Hence, this petition before Indore bench is not maintainable.
2. Shri Aditya Goyal, learned counsel for the petitioner contended that this petition at Indore bench can be entertained for twin reasons:-
(1) The respondent no.2/Commissioner, Commercial Tax Anti-Evasion Bureau is situated at Indore. The search/seizure etc takes place only upon issuance of direction by respondent no.2.
After search and seizure also certain proceedings are going on at Indore. Thus, some part of cause of action has arisen within the territorial jurisdiction of this bench. One such notice dated 30.03.2021 Annexure P/10 issued from Indore is relied upon to bolster the aforesaid submission.
(2) As per article 226 (1) of the Constitution of India, this petition can be entertained because respondent no.2 is stationed at Indore.
3. To support the said contention, learned counsel for the petitioner placed reliance on the historical backdrop of article 226 The High Court Of Madhya Pradesh, Bench At Indore W.P No.11264/2021 (M/s Shree Ram Agro Industries Vs. State of MP) 2 of the Constitution of India and urged that after Constitution (fifteenth) amendment Act, 1963, the accrual of cause of action became additional ground to confer jurisdiction to the High Court under article 226 of the Constitution of India. After this amendment, location is not the sole criteria and place of cause of action also confers jurisdiction. Statement of object and reasons behind bringing said constitutional amendment is relied upon by learned counsel for the petitioner. The key words used in the object and reasons are "only" and "may also", submits learned counsel for the petitioner which is pointer to the fact that the intention was to confer the jurisdiction based on accrual cause of action as well as location of the respondent.
4. Reliance is placed on the judgment of the Apex Court in (2020) 13 SCC 308 (Embassy Property Developments (P) Ltd. Vs. State of Karnataka). Relevant portion reads as under:-
"13. What is recognized by Article 226(1) is the power of every High Court to issue (i) directions, (ii) orders, or (iii) writs. They can be issued to (i) any person, or
(ii) authority including the Government. They may be issued (i) for the enforcement of any of the rights conferred by Part III, and (ii) for any other purpose.
But the exercise of the power recognized by clause (1) of Article 226 is restricted by the territorial jurisdiction of the High Court, determined either by its geographical location or by the place where the cause of action, in whole or in part, arose. While the nature of the power exercised by the High Court is delineated in clause (1) of Article 226, the jurisdiction of the High Court for the exercise of such power, is spelt out in both clauses (1) and (2) of Article 226.'' (emphasis supplied) The High Court Of Madhya Pradesh, Bench At Indore W.P No.11264/2021 (M/s Shree Ram Agro Industries Vs. State of MP) 3
5. In addition, (2007) 11 SCC 335 (Alchemist Ltd. Vs State Bank of Sikkim) is relied upon. It is apt to quote para 16:-
"16. It may be stated that by the Constitution (Forty- second Amendment) Act,1976, Clause (1-A) was renumbered as Clause (2). The underlying object of amendment was expressed in the following words:
"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 litigant 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 arises may also have jurisdiction to issue appropriate directions, orders or writs.""
(emphasis supplied)
6. ILR (2010) 1 Del 35 (Malini Mukesh Vora Vs. Union of India) is pressed into service to contend that the article 226 (1) of the Constitution of India empowers the High Court to issue writ to a person, authority and government located within its territorial limits irrespective of where cause of action arose. Thus for aforesaid twin reasons the writ petition is maintainable at Indore bench.
7. Sounding a contra note, learned counsel for the respondent/state reiterated his aforesaid objection and cited the following judgments of the Apex Court and judgment of this Court:- Kusum Ingots and Alloys Ltd Vs. Union of India and Ors reported in (2004) 6 SCC 254, Om Prakash Shrivastava Vs. Union of India and Ors reported in (2006) 6 SCC 207, Nawal Kishore Sharma Vs. Union of India reported in (2014) 9 SCC 329, Munni Lal Vs. State of MP passed in WP No.8228/2016 and Munni Lal s. State of MP passed in WA No.154/2017. The High Court Of Madhya Pradesh, Bench At Indore W.P No.11264/2021 (M/s Shree Ram Agro Industries Vs. State of MP) 4
8. Learned counsel for the respondent/State further submits that the search and seizure has taken place on the petitioner's industry at Khandwa. Section 67 of the relevant Act makes it obligatory for Officer not below the rank of Joint Commissioner to issue notice because of which notice dated 30.03.2021 Annexure P/10 was issued to the petitioner from Indore office. However, after collecting the material, the further proceedings will continue at Khandwa, and therefore, in view of judgment of the Apex Court in Kusum Ingots (supra) the petitioner may be relegated to approach the principal seat.
9. Learned counsel for the respondent/State further contends that since office of Commissioner/respondent no.2 is situated at Indore, the necessary directions for every search/seizure etc needs to be issued from Indore. Such directions covers the entire state. For example, if a search/seizure has take place at Shahdol or Datia, the necessary directions will indeed to be issued from Indore. The entire exercise thereafter will take place at respective place. Thus, merely because the necessary directions were issued from Indore, the petitions at Indore may not be entertained otherwise it will open a flood gate at Indore.
10. In rejoinder submissions, learned counsel for the petitioner placed reliance on the Delhi High Court judgment Malini Mukesh Vora (supra) to clarify the judgment of the Apex Court in Kusum Ingots (supra). It is urged that Kusum Ingots (supra) was relating to the case where challenge was made to a legislation. There exists a difference when challenge is made to the legislation and a challenge made to an executive action.
The High Court Of Madhya Pradesh, Bench At Indore W.P No.11264/2021 (M/s Shree Ram Agro Industries Vs. State of MP) 5
11. No other point is pressed by the learned counsel for the parties on the question of maintainability.
12. The following portion of judgment of Kusum Ingots (supra) is relied upon by the learned counsel for the respondent/State:-
"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 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.
28. Lt. Col. Khajoor Singh Vs. The Union of India and Another [(1961) 2 SCR 828] whereupon the learned counsel appearing on behalf of the appellant placed strong reliance was rendered at a point of time when clause (2) of Article 226 had not been inserted. In that case the Court held that the jurisdiction of the High Court under Article 226 of the Constitution of India, properly construed, depends not on the residence or location of the person affected by the order but of the person or authority passing the order and the place where the order has effect. In the latter sense, namely, the office of the authority who is to implement the order would attract the territorial jurisdiction of the Court was considered having regard to Section 20(c) of the Code of Civil Procedure as Article 226 of the Constitution thence stood stating :
"...The concept of cause of action cannot in our opinion be 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 The High Court Of Madhya Pradesh, Bench At Indore W.P No.11264/2021 (M/s Shree Ram Agro Industries Vs. State of MP) 6 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. But the argument of inconvenience, in our opinion, cannot affect the plain language of Art. 226, nor can the concept of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it."
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.
30. Forum Conveniens 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 Bhagar Singh Bagga v. Dewan Jagbir Sawhany, AIR 1941 Cal; Mandal Jalan v. Madanlal, (1945) 49 CWN 357; Bharat Coking Coal Limited v. M/s Jharia Talkies & Cold Storage Pvt. Ltd. (1997) CWN 122; S.S.Jain & Co. & Anr. v. Union of India & Ors. (1994) CHN 445; M/s. New Horizon Ltd. v. Union of India, AIR 1994 Delhi 126) "
(emphasis supplied)
13. A conjoint reading of the judgments cited by learned counsel for the petitioner and the judgment of Kusum Ignots (supra) leaves no room for any doubt that even if a minuscule part of cause of action has arisen within the territory of this bench, the petition is The High Court Of Madhya Pradesh, Bench At Indore W.P No.11264/2021 (M/s Shree Ram Agro Industries Vs. State of MP) 7 maintainable before this bench under article 226 (2) of the Constitution of India. The issuance of direction to search/seizure by respondent no.2 certainly provides a minuscule part of cause of action and hence it cannot be said that the petition at Indore is not maintainable.
14. The concept of form convenience makes it clear that if a small part of cause of action has arisen within the territorial jurisdiction of the High Court, it is not determinative factor to compel the High Court to entertain the petition on merits. The judgment of Kusum Ignots (supra) and other relevant judgments were considered by a special bench of five judges of Delhi High Court. Dipak Misra, CJ (as his lordship then was) speaking for the bench opined as under:-
"31. 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 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 (supra), Mosaraf Hossain Khan (supra) and Ambica Industries (supra) 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."
(emphasis supplied)
15. In addition, in para 33 (f) is noteworthy:-
"(f) While entertaining a writ petition, the doctrine of forum conveniens and the nature of cause of action are required to be scrutinized by the High Court The High Court Of Madhya Pradesh, Bench At Indore W.P No.11264/2021 (M/s Shree Ram Agro Industries Vs. State of MP) 8 depending upon the factual matrix of each case in view of what has been stated in Ambica Industries (supra) and Adani Exports Ltd. (supra). "
(emphasis supplied)
16. A plain reading of this judgment makes it clear that in order to decide the forum, the court is required to see the convenience of the parties, existence of more appropriate forum, expenses involved for the parties etc. Khandwa is geographically near to Indore, in comparison to the Principal Seat, it will be very convenient for both the parties to contest their matter before Indore bench. It will be financially less burdensome, in term of traveling expenses etc. The balance of convenience also suggest that this matter may be entertained at Indore. Thus, in the peculiar facts of this case, in our opinion, the petition at Indore bench is maintainable/ entertainable. It will be open for this Court depending upon the facts and circumstances of each case whether the litigant of this nature coming from other districts based on its factual backdrop should be entertained or not. So far this case is concerned, preliminary objection regarding maintainability deserves to be overruled.
17. We order accordingly.
18. This order will govern the question of maintainability (if any) in WP No.1884/2021.
19. List the matter for admission in the next week alongwith WP No.1884/2021.
(Sujoy Paul) (Anil Verma)
Judge Judge
sourabh
Digitally signed by SOURABH
YADAV
Date: 2021.08.05 10:14:05 +05'30'