Allahabad High Court
C/M Shri Paras Nath Anusuchit Prathmik ... vs State Of U.P. Thru. Addl. Chief Secy. ... on 31 May, 2023
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:39303 AFR Reserved Case :- WRIT - C No. - 747 of 2023 Petitioner :- C/M Shri Paras Nath Anusuchit Prathmik Pathshala Thru. Its Manager Sri Rajesh Kumar And 3 Others Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Social Welfare Lko. And 3 Others Counsel for Petitioner :- Girish Chandra Verma Counsel for Respondent :- C.S.C. Hon'ble Vivek Chaudhary, J.
1. The petitioners, two educational institutions, which are running primary schools, have approached this Court for a mandamus commanding State respondents i.e. Additional Chief Secretary/Principal Secretary, Department of Social Welfare, U.P., Lucknow to issue order for grant-in-aid as per decision dated 20.9.2019 taken by respondent no.1 and by Minister of the department.
2. The facts of case including previous litigation between parties, in brief, are that petitioner nos.1 and 3, which are educational societies established in the years 1971 and 1981 respectively, claimed that their institutions are entitled to be brought under grant-in-aid list. The institutions run by them were in District Gorakhpur, which was later on bifurcated and now institutions are in newly created District Maharajganj. The said institutions were recognized since the years 1982 and 1986 respectively. Since their representations were not being decided, hence, they filed Writ-C No.62957 of 2017 "Committee of Management Shri Paras Nath Anusuchit Prathmik Pathshala and another vs. State of U.P. and others" at Allahabad. The said writ petition was disposed of by order dated 5.1.2018, requiring respondent-authority to decide representation of petitioners. Since the said direction was not being complied with by respondents and representation of petitioners remained pending, petitioners filed Contempt Application (Civil) No.6170 of 2019 "Committee of Management Shri Paras Nath Anusuchit Prathmik Pathshala and another vs. Sri Manoj Singh, Secretary, Social Welfare Department, Government of U.P." again at Allahabad. The Court issued contempt notices against the respondents. It appears that thereafter respondents proceeded to consider the case of petitioners and administrative approval was also granted by Principal Secretary concerned on 20.9.2019 and it also appears that the same was also approved by the Minister concerned. Thereafter, Principal Secretary on 24.1.2020 passed an order rejecting the claim of petitioners directing the office not to issue a final order on the basis of earlier administrative order. Against the said order dated 24.1.2020, petitioners filed Writ-C No.7120 of 2020 again at Allahabad.
3. The petitioners claim that they were not aware about order dated 20.9.2019 and on gaining knowledge of the said fact, they moved an application for withdrawal of Writ-C No.7120 of 2020 filed at Allahabad. The said petition was dismissed as withdrawn on 14.7.2022. Thereafter, petitioners preferred present writ petition before this Court at Lucknow on becoming aware of order dated 20.9.2019. Present writ petition before this Court was filed on 23.1.2023.
4. In the given circumstances, at the very outset, learned Standing Counsel raises preliminary objections that since petitioners had filed their earlier three petitions at Allahabad and has thus chosen the jurisdiction at Allahabad, it was not open for them to file their 4th petition at Lucknow, therefore, this Court should refuse to exercise its discretionary jurisdiction on the principles of forum non conveniens. He further submits that prayers and orders of earlier petition are not before this Court, more particularly whether earlier petition was withdrawn with any liberty or not, and thus, this Court should not entertain the present petition.
5. Replying the same, Sri G.C. Verma, learned counsel for petitioners submits that petitioners are master of their petition. The petitioners' institutions are situated at District Maharajganj, which falls within the jurisdiction of High Court sitting at Allahabad while State Government is at Lucknow, therefore, for a mandamus to the respondent authorities, which are having their office at Lucknow, cause of action has to be treated as arising at both the places and thus, being dominus litis, it is the sole discretion of petitioners where they desire to file their writ petition. In support of his submissions, he has placed reliance upon following cases:
(i) Sri Nasiruddin vs. State Transport Appellate Tribunal (1975) 2 SCC 671;
(ii) U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow vs. State of U.P. and others (1995) 4 SCC 738;
(iii) Navinchandra N. Majithia vs. State of Maharashtra and others (2000) 7 SCC 640;
(iv) Rajendran Chingaravelu vs. R.K. Mishra, Additional Commissioner of Income Tax and others (2010) 1 SCC 457;
(v) Nawal Kishore Sharma vs. Union of India and others (2014) 9 SCC 329;
(vi) Nitya Nand Tiwari vs. State of U.P. and others (1994) LCD 1181; and
(vii) Ashok Kumar Arora vs. State of U.P. (Special Appeal No.285 of 2021) decided on 19.8.2021.
6. Learned Standing Counsel, opposing the writ petition, submits that principles of dominus litis would not apply in the present case. He places reliance upon following cases:
(i) Kusum Ingots & Alloys Ltd. vs. Union of India and another (2004) 6 SCC 254; and
(ii) Krishna Veni Nagam vs. Harish Nagam, (2017) 4 SCC 150.
7. I have heard learned counsel for parties and perused the record.
8. So far as judgments relied upon by learned counsel for petitioners are concerned, all of them are on the issue that where jurisdiction lies at more than one places, it is the discretion of petitioners being master of proceedings to file a petition at a place of their choice. Suffice is to refer to the judgment of Supreme Court in Sri Nasiruddin (supra). Relevant Paragraphs 24, 25, 37, 38 and 39 of the said judgment read:
"24. The fourth question on which the High Court expressed its opinion is on the meaning of "cases arising in such areas in Oudh". The High Court expressed the following views. A distinction arises between criminal cases on the one hand and writ petitions under Article the other. The contention based on Article 225 that Lucknow Bench will not have jurisdiction under Article 226 is wrong because the jurisdiction of the High Court is not only the jurisdiction exercisable before the Constitution came into force but also the jurisdiction which could be on the High Court in future. The Lucknow Bench, therefore, jurisdiction under Article 226.
25. Though the Lucknow Bench can exercise jurisdiction under Articles 226, 227 and 228, there is limitation on such jurisdiction as far as the Lucknow Bench is concerned. The Lucknow Bench will have jurisdiction under Article 226 only in cases where the right of the petitioner arose first within the Oudh areas. Where an original order passed outside the Oudh areas has been reversed or modified or confirmed at a place within the Oudh areas it is not the place where the ultimate or the appellate order is passed that will attract jurisdiction of the Lucknow Bench. In most cases where an appeal or revision will lie to the State Government, the order will be made at Lucknow. In all such cases, if it be held that the place where a case can be said to arise is where the ultimate or appellate order is passed by the authority, the Judges at Lucknow would then have jurisdiction even though the controversy originally arose and the original order was made by an authority outside the specified Oudh areas. In all cases a writ petition filed in the High Court would be a case arising at Lucknow. It is on this reasoning that the High Court strictly confined the jurisdiction of the Lucknow Bench under Article 226 to the right which the petitioner pursues throughout the original proceedings, the appellate proceedings and thereafter in the High Court. The right of the petitioner is the right which first arose and if the place where the right first arose will be within the Oudh areas then the Lucknow Bench will have jurisdiction.
37. The conclusion as well as the reasoning of the High Court is incorrect. It is unsound because 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 part of cause of action arising within the jurisdiction of the court. Similarly, if the cause of action can be said to have arisen partly within specified areas in Oudh and partly outside the specified Oudh areas, the litigant will have the choice to institute proceedings either at Allahabad or Lucknow. The court will find out in each case whether the jurisdiction of the court is rightly attracted by the alleged cause of action.
38. To sum up. Our conclusions are as follows. First, there is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the Order. Second, the Chief Justice of the High Court has no power to increase or decrease the areas in Oudh from time to time. The areas in Oudh have been determined once by the Chief Justice and, therefore, there is no scope for changing the areas. Third, the Chief Justice has power under the second proviso to para 14 of the Order to direct in his discretion that any case or class of cases arising in Oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in Oudh areas shall be instituted or filed at Allahabad, instead of Lucknow is wrong. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to para 14 of the Order be directed to be heard at Allahabad. Fourth, the expression "cause of action" with regard to a civil matters means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arises when the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction, it may arise in either place.
39. Applications under Article 226 will similarly lie either at Lucknow or at Allahabad as the applicant will allege that the whole of cause of action or part of the cause of action arose at Lucknow within the specified areas of Oudh or part of the cause of action arose at a place outside the specified Oudh areas."
9. Rest of the judgments relied upon by learned counsel for petitioners also follow the same principles. No doubt, it is settled that when cause of action arises at more than one place, it is the plaintiff/petitioner, who has a discretion to choose the place where he desires to file petition. However, the said discretion cannot be said to be absolute. Exception is drawn to the same on the principles of forum non conveniens.
10. In Kusum Ingots & Alloys Ltd. (supra), the Supreme Court while dealing with the issue of cause of action, in Para 30 held:
"Forum conveniens
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 Sawhney [AIR 1941 Cal 670 : ILR (1941) 1 Cal 490] , Madanlal Jalan v. Madanlal [(1945) 49 CWN 357 : AIR 1949 Cal 495] , Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd. [1997 CWN 122] , S.S. Jain & Co. v. Union of India [(1994) 1 CHN 445] and New Horizons Ltd. v. Union of India [AIR 1994 Del 126]."
11. In Krishna Veni Nagam (supra), the Supreme Court in Para 13 held:
"13. We have considered the above suggestions. In this respect, we may also refer to the doctrine of forum non conveniens which can be applied in matrimonial proceedings for advancing interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice. In Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd. [Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd., (2003) 4 SCC 341] this Court observed : (SCC pp. 356-57, para 19) "19. In Spiliada Maritime case [Spiliada Maritime Corpn. v. Cansulex Ltd., (1986) 3 All ER 843 : 1987 AC 460 : (1986) 3 WLR 972 (HL)] the House of Lords laid down the following principle : (All ER p. 844a) 'The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in which the case could be tried more suitably for the interests of all the parties and for the ends of justice....' The criteria to determine which was a more appropriate forum, for the purpose of ordering stay of the suit, the court would look for that forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business. If the court concluded that there was no other available forum which was more appropriate than the English court, it would normally refuse a stay. If, however, the court concluded that there was another forum which was prima facie more appropriate, the court would normally grant a stay unless there were circumstances militating against a stay. It was noted that as the dispute concerning the contract in which the proper law was English law, it meant that England was the appropriate forum in which the case could be more suitably tried."
(emphasis in original) Though these observations have been made in the context of granting anti-suit injunction, the principle can be followed in regulating the exercise of jurisdiction of the court where proceedings are instituted. In a civil proceeding, the plaintiff is the dominus litis but if more than one court has jurisdiction, court can determine which is the convenient forum and lay down conditions in the interest of justice subject to which its jurisdiction may be availed [Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254, para 30] ." (emphasis added)
12. From the aforesaid judgments in Kusum Ingots & Alloys Ltd. (supra) and Krishna Veni Nagam (supra), Supreme Court has held that plaintiff/petitioner alone does not have exclusive discretion to choose jurisdiction when the same lies at multiple places. In appropriate cases, Court can exercise its inherent jurisdiction and fix jurisdiction taking into consideration the convenience of parties, witnesses, Court and any other relevant factors, which would impact the proceedings.
13. In the present case, petitioners could approach either High Court at Allahabad or at Lucknow. In earlier three proceedings, petitioners chose High Court at Allahabad for filing their writ petitions and contempt application and last petition filed at Allahabad was withdrawn by them. It is not clear as to under what circumstances and with what liberty, if any, said petition was permitted to be withdrawn.
14. The unique position with regard to High Court Allahabad is that under Clause 14 of the United Provinces High Court (Amalgamation) Order, 1948, the Chief Justice while sitting at Lucknow can transfer a writ petition from Lucknow to Allahabad. However, neither under the High Court Rules nor under the United Provinces High Court (Amalgamation) Order, 1948, the Chief Justice is having any power to transfer a case from Allahabad to Lucknow.
15. In the present case, this Court is not in a position to summon the files/records from Allahabad. The petitioners have not filed details of prayers made in their earlier petitions, withdrawal application filed by them in Writ-C No.7120 of 2020 and ground taken therein, and order passed in earlier writ petition. In absence of the same, this Court is unable to decide as to whether withdrawal of earlier writ petition is in circumstances in which present writ petition can be filed or present writ petition would be barred by withdrawal of earlier writ petition, and without deciding the same, this Court cannot proceed. Court is also unable to peruse orders and pleadings of petitioners' other two petitions.
16. This type of disputes are frequently occurring before this Court. The difficulty faced by the Court, in the aforesaid circumstances, where a case cannot be transferred from Allahabad to Lucknow while they can be transferred from Lucknow to Allahabad only when Chief Justice of High Court sitting at Lucknow passes an order under Clause 14 of the United Provinces High Court (Amalgamation) Order, 1948, creates unnecessary hurdle in disposal of cases, if jurisdiction is changed from one place to another by the parties to the dispute. It needs to be solved.
17. Merely because petitioners have a right to file writ petition before any Court of their choice either at Allahabad or Lucknow, it does not give them a kangaroo right to hop around jurisdiction at their whims. It is not only their convenience, which is to be looked into, but convenience of all related is also relevant, including that of Court. Facts of this case are a glaring example of the same. The difficulty being faced by this Court is created by petitioners only.
18. The petitioners have a choice to invoke jurisdiction of the Court either at Allahabad or at Lucknow and once they have exercised the said choice, parties should restrict themselves to their initial choice of forum while filing later petitions. Hopping around forum would be highly inconvenient to the working of the Court as in the present case. Once petitioners choose jurisdiction, out of many available, in normal course, they should stick to the same, unless they can explain reasons for changing the same.
19. It was repeatedly put to learned counsel for petitioners to explain as to why after repeatedly choosing High Court at Allahabad, petitioners have chosen Lucknow for filing present writ petition. Learned counsel for petitioners only replied that it is the discretion and choice of petitioners and this Court cannot interfere in the same. This Court is not satisfied with the reply of learned counsel for petitioners.
20. In the given facts and circumstances where it is not clear to this Court as to whether primary question with regard to maintainability is involved in view of withdrawal of earlier writ petition, which appears to be without any liberty, this Court finds it appropriate to refuse to exercise its discretionary jurisdiction in permitting the petitioners to maintain present writ petition at Lucknow and finds Allahabad as appropriate forum for this petition.
21. It was also offered to learned counsel for petitioners if he would like to get the matter listed before the Chief Justice under Clause 14 of the United Provinces High Court (Amalgamation) Order, 1948 for transfer of present petition to Allahabad. Learned counsel for petitioners refused the offer and again reiterated that it is petitioners' right to choose jurisdiction and they cannot be forced out of Lucknow.
22. Since this Court is not inclined to entertain this writ petition at Lucknow, therefore, present writ petition is dismissed. It shall, however, be open for petitioners, in case they so desire, to file a petition at Allahabad.
[Vivek Chaudhary, J.] Dated: May 31, 2023 Sachin