9911796707
TMI Blog2007 (7) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... laced reliance on Sections 73 and 79 of the Railways Act, 1989. 2. The petitioners have also challenged para 1744 of the Indian Railways Commercial Manual as being vocative of Section 79 of the Railways Act, 1989 inasmuch as it virtually takes away the statutory right of re-weighment. The said Indian Railway Commercial Manual has been formulated by the Railway Board constituted under the Indian Railway Board Act, 1905. 3. The petitioners have, Therefore, essentially prayed for the quashing of the demand for punitive charges as well as for quashing of para 1744 of the Indian Railway Commercial Manual. On the other hand, the respondents have taken a strong objection to the maintainability of the present petitions on the ground that this Court lacks territorial jurisdiction to entertain these petitions. It is for this reason that the issue with regard to the territorial jurisdiction of this Court in these matters was heard as a preliminary issue and the same is being disposed of by the present judgment. 4. Ms Geetanjali Mohan, appearing on behalf of the respondents 2 to 4 (viz. the Railway authorities), referred to the jurisdiction paragraph in WP(C)2103/2007 to indicate as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as arisen within the territorial limits of this Court. 7. With regard to the challenge to para 1744 of the Indian Railway Commercial Manual, she submitted that although the same has been framed in Delhi by the Railway Board, this in itself would not give rise to a cause of action. The cause of action would arise only when and where the said paragraph effects a person. In other words, where the civil consequences are felt. Ms Mohan referred to the Supreme Court decision in the case of Union of India and Ors. v. Adani Exports Ltd and Anr. 2001(134)ELT596(SC) . With reference to para 17 of the said decision, she submitted that for the purposes of determining its jurisdiction to entertain a writ petition, a High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in part, arisen within its jurisdiction. The Supreme Court also held that each and every fact pleaded in the petition does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial limits unless the facts pleaded are such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Railway Board which formulated the said Manual is in Delhi. She finally referred to para 26 of the decision in Kusum Ingots (supra) wherein it is observed as under: ... In fact, a legislation, it is trite, is not confined to a statute enacted by Parliament or the Legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instructions issued in this behalf shall also come with within the purview thereof. Situs of office of the Parliament, Legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof. (underlining added) 9. She also made a passing reference to the decision of the Supreme Court in the case of Patel Roadways Limited v. Prasad Trading Company [1991]3SCR391 which pertains to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... local limits of the court. We have already noticed that expeditious disposal is one of the underlining features of the amended provisions of Article 226 and to ensure balancing of convenience between the parties to the lis, it may be appropriate that the courts determine the question of jurisdiction at the very threshold of the proceedings. Proper exercise of jurisdiction would ex facie take in its ambit remedies which are effective and efficacious. If both or any of these ingredients are not satisfied, it would be a factor which will tilt the view of the court against exercising its jurisdiction. The court is expected to deal with the issue of jurisdiction right at the initial stages and normally while taking the petition as framed to be correct. Article 226(2) opens with the words The power conferred by Clause (1) to issue directions... which clearly indicates amplification of jurisdiction and that the provision is meant to aid the powers vested in the High Court for issuance of writ, order or direction located within their territorial jurisdiction. The expression 'may also' would have to be given their true meaning while ensuring that such connotations are in consonanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only the Punjab High Court, at that time, which had the jurisdiction to issue writs to Union of India as had been held by the Supreme Court in the case of Election Commission, India, v. Saka Venkata Subba Rao [1953]4SCR1144 and K.S. Rashid and Son v. The Income Tax Investigation Commission, etc. [1954]25ITR167(SC) . At that time some of the High Courts were of the opinion that where the cause of action arose writ petition could be filed in those High Courts also. This view was not approved by the Supreme Court. Subsequently Article 226 was amended and Sub-article (2) was inserted. In the statement of objects and reasons as well as in the notes on clauses it was stated that the amendment was being made so that when any relief sought against any Government the High Court within whose jurisdiction the cause of action arose may also have jurisdiction to issue appropriate directions, writs or orders. It is for this reason that in Sub-article (2) the word used is also which clearly shows that the jurisdiction conferred by Sub-article (2) in addition to the jurisdiction conferred on the Courts under Article 226(1). In other words, with regard to writ petitions against the Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esidence or location within those territories. Mr Kaul submitted that the first limitation has been done away with, subsequently, by the introduction of Article 226(2) which introduces the element of cause of action. He submitted that prior to the 15th Amendment to the Constitution, the High Court could only issue writs to persons or authorities or Governments which were located within the territories of those High Courts, but after the 15th Amendment to the Constitution, High Courts could even issue writs to persons, authorities or governments which were not located within their territories provided the cause of action, in whole or in part, arose within the territory over which the High Courts normally exercised jurisdiction. He submitted that there is an apparent conflict between the decisions of the Supreme Court in the case of Kusum Ingots (supra) and Khajoor Singh (supra) but, this can be easily reconciled by reference to the decision of the Supreme Court in the case of Navinchandra Majithia (supra) which has clarified that the introduction of Article 226(2) is to be regarded as a widening of the arena of territorial jurisdiction of the High Courts. He further submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, 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 convenience. (See Bhagar Singh Bagga v. Dewan Jagbir Sawhany AIR 1941 Cal; Mandal Jalan v. Madanlal,; Bharat Coking Coal Limited v. Jharia Talkies and Cold Storage Pvt. Ltd.; S.S. Jain and Co. and Anr. v. Union of India and Ors. (1994) CHN 445; New Horizon Ltd. v. Union of India AIR1994Delhi126 ). In this context, she submitted that the entire record is with the South East Central Railway, the Headquarters of which are at Bilaspur, Chattisgarh. To this, Mr Kaul immediately retorted that the concept of forum convenience is also relatable to the situs of cause of action and Article 226(2), whereas he is invoking the jurisdiction of this Court on the basis of Article 226(1). 18. In the context of the arguments advanced by the counsel for the parties, it would be appropriate if the genesis of the High Courts& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers 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. The Supreme Court in respect of the first question observed as under: This brings us to the first question, namely, whether the Government of India as such can be said to be located at one place, namely, New Delhi. The main argument in this connection is that the Government of India is all-pervasive and is functioning throughout the territory of India and Therefore every High Court has power to issue a writ against it, as it must be presumed to be located within the territorial jurisdiction of all State High Courts. This argument in our opinion confuses the concept of location of a Government with the concept of its functioning. A Government may be functioning all over a State or all over India; but it certainly is not located all over the State or all over India. It is true that the Constitution has not provided that the seat of the Government of India will be at New Delhi. That, however, does not mean that the Government of India as such has no seat where it is located. It is common knowledge that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o confusion and conflict of jurisdictions.... The Supreme Court also observed as under: Therefore, the effect of an order by whomsoever it is passed can have no relevance in determining the jurisdiction of the High Court which can take action under Article 226. Now, functioning of a Government is really nothing other than giving effect to the orders passed by it. Therefore it would not be right to introduce in Article 226 the concept of the functioning of Government when determining the meaning of the words ``any person or authority within those territories'`. By introducing the concept of functioning in these words we shall be creating the same conflict which would arise if the concept of the place where the order is to have effect is introduced in Article 226. There can, Therefore, be no escape from the conclusion that these words in Article 226 refer not to the place 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo 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 Article 226 and doing away with an express limitation contained therein if the concept of cause of action were to be introduced in it.... ...The concept of cause of action cannot in our opinion be introduced in Article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Election Commission, India v. Saka Venkata Subba Rao (supra) and Khajoor Singh (supra) were rendered in the context of Article 226(1) and in the absence of any provisions of the nature of Article 226(2). The introduction of Article 226(2), as observed in the case of Navinchandra N. Majithia (supra) widened the width of the area in respect of writs issued by different High Courts. In fact, Article 226(2) can be construed as an exception to the limitations mentioned in Election Commission, India (supra) and approved in Khajoor Singh (supra). The power conferred on the High Courts under Article 226 could now be as well exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, in whole or in part, arose and it was no matter that the seat of the authority concerned was outside the territorial limits of the jurisdiction of that High Court. This distinction between the provisions of Article 226(1) and 226(2) has to be maintained. While Article 226(1) empowers a High Court to issue writs to a person, authority or government within its territorial limits de hors the question of where the cause of action arose, Article 226(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of State 'A' and of State 'B'. The High Court of State 'A' would have jurisdiction by virtue of Article 226(1) inasmuch as the location of the person, authority or government to whom the writ is to be issued is within that State. The High Court of State 'B' would have jurisdiction because, although the location of the person, authority or government is in State 'A', the cause of action (in whole or in part) has arisen in State 'B'. The next case is given under S. No. 3. Here the location of the person, authority or government is in State 'B', but the cause of action has arisen in State 'A'. In such a situation, both the High Courts of State 'A' and 'B' would have jurisdiction. But the High Court of State 'A' would have jurisdiction under Article 226(2) on account of cause of action and the High Court of State 'B' would have jurisdiction by virtue of Article 226(1) on account of location. Lastly, at S. No. 4 is a case which is the inverse of the situation in S. No. 1, both the location and the cause of action arise in State 'B'. Therefore, it would be the High Court of State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed on 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. (underlining added) 24. The above observations indicate three things. Firstly, the passing of a legislation does not in itself give rise to a cause of action. Secondly, no writ can be entertained and no constitutional question can be determined in a vacuum, that is to say, in the absence of a cause of action. Thirdly, an order passed in a writ petition questioning the constitutionality of a Parliamentary Act will have effect throughout the territory of India. No exception can be taken to these observations. But, they must be understood in the proper context. The first two observations indicate that before a petitioner approaches a High Court for the issuance of a writ, he must have a cause of action. The mere passing of a legislation does not provide a cause of action in itself. Unless the effect of the legislation is felt by the petitioner in the form of some consequences perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India is in Delhi, a writ petition cannot be filed in the Delhi High Court challenging the constitutionality of a Central Act unless a cause of action has arisen for the same. As I see it, it does not matter where the cause of action arises. Once it arises, Delhi High Court would have territorial jurisdiction. It is of course true that if the cause of action arises (in whole or in part) in another State, the Central Act could be challenged in the High Court of that State also. 27. With regard to the 'conflict', as Mr Kaul termed it, between Kusum Ingots (supra) and Khajoor Singh (supra), there is no doubt that if there were such a 'conflict', the decision in Khajoor Singh (supra) would prevail as it was of a larger bench. But, it must be remembered that what Khajoor Singh (supra) held with regard to the place where an order has effect was in the context of the 'cause of action' argument. Clearly, the place where the cause of action arose was not a relevant consideration then (i.e., prior to the 15th Amendment). That part of Khajoor Singh (supra) with regard 'the place of cause of action' argument has no relevance now in view of Article 226(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of India: H.M. Seervai: Fourth Edition: Volume 2, pages 1598: The newly added Sub-article (1A) to Article 226 226 introduces an additional basis of jurisdiction, namely, the whole or in part of a cause of action arising within the jurisdiction of a court. This is clear from the use of the words, 'the power conferred by Clause (1) ... may also be exercised....' Therefore jurisdiction to issue writs can be exercised (i) by a court within whose jurisdiction a person or authority (including, in appropriate cases, any government) resides or is located, and (ii) also by a court within whose jurisdiction the cause of action wholly or in part arises, notwithstanding that the seat of such government or authority or the residence of such person is not within those territories. 30. Recently in Alchemist Limited and Anr. v. State Bank of Sikkim and Ors. AIR2007SC1812 , the Supreme Court traced the legislative history of Article 226(2) of the Constitution. It observed that the effect of the decisions in the case of Election Commission, India v. Saka Venkata Rao (supra) and Khajoor Singh v. Union of India (supra) was that no High Court other than the High Court of Punjab (before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot necessarily the sole jurisdiction as other High Courts where the cause of action arose would also have jurisdiction. So, Navinchandra N. Majithia (supra), Kusum Ingots (supra), Mosaraf Hossain Khan (supra) and Alchemist Limited (supra) all say that Article 226(2) is an extension of or in addition to the jurisdiction conferred under Article 226(1). The discordant note that was sought to be highlighted by counsel in the case of Kusum Ingots (supra) is only virtual, not real. Its true meaning having been explained in Mosaraf Hossain Khan (supra). 32. The decision of a Division Bench of this Court in the Case of GD Vinod Kumar (supra) has to be read in the light of the interpretation of Article 226(1) and 226(2) as given by the Supreme Court. That interpretation has already been explained above. It may also be pointed out that Mr Kaul was right in submitting that the said decision turned on its own facts and was inapplicable to the situation at hand. This would be clear from examining para 15 of the said decision which has been extracted earlier in this judgment wherein the Division Bench observed that they were dealing with cases where the forces were operating under special s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... safely said that Kusum Ingots (supra), was definitive with regard to the following: (1) Passing of a legislation by itself does not confer any right to file a writ petition unless a cause of action arises therefore. 4 [See: Kusum Ingots (supra): para 19]. (2) Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action. 5 [See Kusum Ingots (supra): para 26]. (3) The High Court within whose jurisdiction a legislation is passed, would not have the sole territorial jurisdiction but all the High Courts where cause of action arises, will have jurisdiction. [See: Mosaraf Hossain Khan (supra): para 26]. (4) The question as to whether the court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. [See: Kusum Ingots (supra): para 12 with reference to ONGC v. Utpal Kumar Basu (1994)4SCC711 . (5) When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum. [See: Kusum Ingots (supra): para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bert 330 U.S. 501 that Indeed, the doctrine of forum non convenience can never apply if there is absence of jurisdiction or mistake of venue . In this very decision (viz. Gulf Oil Corp.) the doctrine is stated as follows: The principle of forum non convenience is simply that a court may resist imposition upon its jurisdiction even where jurisdiction is authorised by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself. 37. From the above discussion, it is clear that the doctrine of forum non convenience can only be invoked where the court deciding not to exercise jurisdiction, has jurisdiction in the strict sense. So, if the Supreme Court directs the High Courts as it did in the case of Kusum Ingots (supra) and Mosaraf Hossain Khan ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l provisions. 39. In the light of the discussion above, it has now to be determined as to whether in the present case this Court has territorial jurisdiction to entertain the writ petitions. As noticed above, the question as to whether the Court has territorial jurisdiction to entertain a writ petition has to be arrived at on the basis of the averments made in the petition, the truth or otherwise thereof being immaterial. [see Kusum Ingots (supra) and ONGC v. Utpal Kumar Basu (supra)]. It has been averred in the petitions that paragraph 1744 of the Indian Railways Commercial Manual, which is an executive instruction issued by the Railway Board, is the root cause for the raising of the punitive demands, which are challenged in this petition. Mr Kaul submitted that if paragraph 1744 had not existed then the demands challenged herein would not have been raised. He submits that paragraph 1744 is vocative of Section 73 and 79 of the Railways Act, 1989. Without going into the question of truth or otherwise of these averments and without examining the merits of the challenge to paragraph 1744 of the Indian Railways Commercial Manual, it is clear that the challenge exists and that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
