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TMI Blog2012 (6) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 Alchemist Ltd. (2007 (3) TMI 382 (SC)). 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. 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. 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 power under Article 226 being discretionary cannot be limited or restricted to the ground of mala fide alone. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction of the High Court of Delhi being involved in these writ petitions, they were heard analogously and as the said issue is the only question of reference, it is being adverted to and dealt with by a singular order. For the sake of convenience, we shall adumbrate the facts in W.P. (C) No. 6570/2010. 2. Expressing doubt with regard to the correctness and soundness 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 reconsideration by a Full Bench and, accordingly, a Full Bench was constituted and the Full Bench thought it appropriate that the matter should be considered by a Larger Bench and, accordingly, the Larger Bench has been constituted and the matter has been placed before us for the aforesaid purpose. 3. Before we proceed to analyze and appreciate the ratio decidendi in New India Assurance Company Limited (supra), it is seemly to exposit the necessitous primary facts averred in the present writ petition. The petitioner, in invocation of the jurisdiction under Article 226 of the Constitution of India, has called in question the legal substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding 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. 8. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdships then 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution, the concept of cause of action arising wholly or in part came into existence for the exercise of power under the said Article. 15. Regard being had to the aforesaid historical backdrop, we shall presently proceed to deal with the Full Bench decision in New India Assurance Company Limited (supra) to perceive how it has dealt with the concept of jurisdiction in the context of the conception of cause of action and the appreciation of the ratio of various citations by the Full Bench 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 Amb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 an insignificant or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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] 16. On a nuanced scrutiny 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 power of superintendence over Tribunals situate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 19. 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 regarding the jurisdiction of the High Court of Bombay. The Division Bench of the High Court of Bombay 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 (supra) 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 jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34. In Kusum Ingots Alloys Ltd. v. Union of India, (2004) 6 SCC 254 : JT (2004) Supp 1 SC 475, the appellant was a Company registered under the Companies Act having its head office at Mumbai. It obtained a loan from the Bhopal Branch of the State Bank of India. The Bank issued a notice for repayment of loan from Bhopal under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The appellant Company filed a writ petition in the High Court of Delhi which was dismissed on the ground of lack of territorial jurisdiction. The Company approached this Court and contended that as the constitutionality of a parliamentary legislation was questioned, the High Court of Delhi had the requisite jurisdiction to entertain the writ petition. 35. Negativing the contention and upholding the order passed by the High Court, this Court ruled that passing of a legislation by itself does not confer any such right to file a writ petition in any Court unless a cause of action arises therefor. The Court stated: (Kusum Ingots case, SCC p. 261, para 20) 20. A distinction between a legislation and executive action should be borne in mind while de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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] 26. At this juncture, we may profitably refer to the decision in Adani Exports Ltd. (supra) wherein their Lordships, after referring to the decision in Utpal Kumar Basu and Others (supra), have held thus : 17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition before it. The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in relation to the territories within which the cause of action arises wholly or in part, will have jurisdiction. This would mean that even if a small fraction of the cause of action (that bundle of facts which gives a petitioner, a right to sue) accrued within the territories of Andhra Pradesh, the High Court of that State will have jurisdiction. 10. In this case, the genesis for the entire episode of search, seizure and detention was the action of the security/intelligence officials at Hyderabad Airport (in Andhra Pradesh) who having inspected the cash carried by him, alerted their counterparts at Chennai Airport that the appellant was carrying a huge sum of money, and required to be intercepted and questioned. A part of the cause of action therefore clearly arose in Hyderabad. It is also to be noticed that the consequential income tax proceedings against him, which he challenged in the writ petition, were also initiated at Hyderabad. Therefore, his writ petition ought not to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt 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. 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. 32. The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Article 226 if only the jurisdiction is invoked in a mala fide manner is too restricted/constricted as the exercise of 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 scrutinized by the High Court depending upon the factual matrix of each case in view of what has been stated in Ambica Industries (supra) and Adani Exports Ltd. (supra). (g) The conclusion of the earlier decision of the Full Bench in New India Assurance Company Limited (supra) 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. 34. Ex consequenti, we answer the reference by partially overruling and clarifying the decision in New India Assurance Company Limited (supra) in the above terms. Matters be listed before the appropriate Division Bench for appropriate consideration. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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