9911796707
TMI Blog2012 (10) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... ly reason, which apparently, propelled the petitioner to move this Court was the situs of the Revisional Authority. The Revisional Authority is situate in Delhi, and one of the orders impugned in the writ petition is the order of the Revisional Authority. Apart from the order of the Revisional Authority, the other order which is impugned is the order of the State Government of Maharashtra/Respondent No. 2 dated 28.08.2009, by which respondent No. 3 has been declared; Ad-interim stay is also sought of this very order. Briefly, the petitioner alongwith certain other entities had applied for a Prospecting Licence (P.L.) qua Iron Ore in the area situate at Mauze Malermeta, Tehsil Etapalli, District Gadchiroli in the State of Maharashtra. 2. It is the case of the petitioner that on 15.12.2005, it had applied for grant of P.L. over an area admeasuring 1056.010 hectare, in the aforementioned area. 3. It appears that on 12.10.2006, the area in issue was notified to be recommended for grant of P.L. by the Director (Geology and Mining), Nagpur i.e., Respondent No. 5 under section 11(2) and 11(4) of the Mines and Minerals (Development and Regulation Act), 1957 (in short MMDR Act). The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 was concluded, without a representation on behalf of the petitioner. 7.3 Pursuant to the said hearing, the Revisional Authority passed the impugned order dated 30.03.2012. 8. To be noted, as indicated above, the petitioner has assailed the order of the Revisional Authority as well as that of respondent No. 2/State Government of Maharashtra, on various grounds, including the fact that they were passed in breach of the principles of natural justice. This charge is specifically directed qua the order of the Revisional Authority. 9. What would require particular notice, in the facts of this case, is that, respondent No. 2/State Government of Maharashtra was called upon to consider applications in respect of the area in issue, for recommendations to be made qua the grant of P.L. over an area admeasuring 463 hectares. In all 54 applicants, had applied for mineral concessions, though there were 65 applications before it, for consideration. Out of a total of 65 applications, 6 applications were made for grant of Mining Lease (in short M.L.), while 59 applications were made for grant of the P.L. Since recommendations had to be made only for grant of the P.L. as the area in issue was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party would want to approach this court to the exclusion of the court in which the Mine is located; thus leading to, in a sense, misuse and forum shopping. 11.2 What would make the above example even more complex, if State authority, decides to follow the view of its own High Court which it is bound to follow and the Revisional Authority was to follow the view of this court. 11.3 The question then is: How are these situations to be dealt with? 12. In the context of certain other statutes such as the Income Tax Act where the Income Tax Appellate Tribunal (ITAT) operates in Benches, this court in a series of judgments, which has found approval of the Supreme Court in the case of Ambica Industries Vs. Commissioner of Central Excise, (2007) 6 SCC 769, has taken the view that the ITAT would be bound by the judgment of the jurisdictional High Court in which the Assessing Officer is located [see Seth Banarasi Das Gupta Vs. Commissioner of Income Tax, (1971) 81 ITR 170 (All)., which is cited with approval in Suresh Desai and Associates Vs. Commissioner of Income Tax, 71 (1998) DLT 772 (DB). The relevant observations made, in this behalf, in Suresh Desai and Associates (supra) are containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted as the basis for the determination of the jurisdiction of the High Court to which question of law arising out of the order should be referred cannot be accepted. Reference cannot be made to the High Court of Delhi merely because Delhi Bench of Tribunal situated within the territorial jurisdiction of High Court heard the appeal. 9. The above said view has been followed and reiterated again by a Division Bench of High Court of Delhi in Birla Cotton Spg. Mills v. CIT, Rajasthan 123 ITR 354. It has been held that the Court to which the reference should be made would be the Court having jurisdiction over the territory in which the office of the Assessing Officer was situated. 10. Not only we are bound to follow the view taken by two Division Benches of High Court of Delhi referred to hereinabove, which have held the field for about two decades, we too find ourselves in entire agreement with the view so taken. 11. There is yet another reason why the above said view should prevail. The territorial jurisdiction of the ITAT extends over several States though each of such States has its own High Court. There is unanimity of opinion amongst different High Courts that decisions of the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the statute creating them, which would clearly be contrary to the well-settled position in law. unless and until the Supreme Court or the High Court of the State in question, under Article 226 of the Constitution, declares a provision of the Act to be ultra vires, it must be taken to be constitutionally valid and treated as such. 14. On account of the above said doctrine of precedents and the rule of binding efficacy of the law laid down by the High Court within its territorial jurisdiction. The questions of law arising for decision in a reference should be determined by the High Court which exercises territorial jurisdiction over the situs of the Assessing Officer, else it would result in serious anomalies. An assessee affected by an assessment order at Bombay may invoke the jurisdiction of Delhi High Court to take advantage of the law laid down by it and suited to him and thus get rid of the law laid down to the contrary by the High Court of Bombay not suited to the assessee. This cannot be allowed... (emphasis supplied) 13. The Supreme Court in Ambika Industries (supra) examined this problem in the context of Section 35G(9) of the Central Excise Act, 1944. In terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute, Parliament must have thought of one High Court. It is a different matter that by way of necessity, a Tribunal may have to exercise jurisdiction over several States but it does not appeal to any reason that Parliament intended, despite providing for an appeal before the High Court, that appeals may be filed before different High Courts at the sweet will of the party aggrieved by the decision of the Tribunal. 15. In a case of this nature, therefore, the cause of action doctrine may not be invoked.... (emphasis supplied) 14. A Division Bench of this court in the case of Dharampal Premchand Ltd. Vs. Commissioner of Central Excise, 182 (2011) DLT 654 following the said principle enunciated in Ambica Industries (supra), rejected the writ petition on the ground of lack of territorial jurisdiction. Also see the decision of another Division Bench of this court in the case of Commissioner of C. Excise vs. Enkay HWS Ltd. 2002 (139) ELT 21 (Del). 15. The principle which emerges on an analysis of the aforementioned judgments is that: keeping in mind, the rule of binding efficacy of law laid down by the High Court within its territorial jurisdiction , the identification of the appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court judgments referred to by the petitioners, in no uncertain terms, came to the conclusion that the situs of a Tribunal is not a determinative factor. It also reiterated that the principle of forum conveniens which briefly put, permits a writ court to refrain from exercising jurisdiction in a given case, where a substantive part of the cause of action arises outside its territorial jurisdiction. In the words of the court: the principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens. The Full Bench in New India Assurance Co. Ltd. vs. UOI AIR 2010 Del 43 has not kept in view the concept of forum conveniens and has expressed the view that if the appellate authority who has passed the order is situated in Delhi, then the Delhi High Court should be treated as the forum conveniens. We are unable to subscribe to the said view . 20. Upon mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Any decision of this Court contrary to the conclusions enumerated hereinabove stands overruled.... (emphasis supplied) 21. A reading of the aforesaid would show that the situs of the Tribunal is not necessarily determinative of the fact as to whether the High Court in which the writ petition is preferred is the convenient forum before which the litigant ought to agitate his grievance. The said judgment of the Full Bench of this court in Sterling Agro Industries Ltd. (supra) has been discussed by a Division Bench of this court in three cases :- (i). Vishnu Security Services Vs. Regional Provident Fund Commissioner and Anr., LPA No. 960/2011, decided on 17.02.2012. (ii). Jan Chetna Vs. Ministry of Environment and Forests Ors., 189 (2012) DLT 550 (iii). Vinod KR Bhora Vs. HDFC Standard Life Insurance Company Ltd. and Anr., LPA No. 797/2010, decided on 17.02.2012. 22. Before I proceed further, at the outset, I must record that none of the aforementioned three cases were cited by the learned counsel for the petitioner in support of his case. Since, these have come to my notice, I propose to briefly deal with them. 22.1 Vishnu Security Services was the case where an appeal had been pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insurance company had rejected the claim on the ground that the appellant had failed to disclose at the time of filing the proposal form with it, that he suffered from diabetes. The Appellant challenged the rejection of his claim before the insurance Ombudsman. The Division Bench found that under the rules governing its constitution the complaint qua the rejection of the claim by the Appellant could be made before that Ombudsman within whose jurisdiction the Branch Office or the office of the insurance company was situate. Incidentally, the Ombudsman for the States of Rajasthan and Delhi was common. The Division Bench, however, taking into account that the complaint was filed in Jodhpur i.e., in the State of Rajasthan, the hearing was concluded at Jodhpur and the Ombudsman was acting in his capacity as the Ombudsman for the State of Rajasthan, when adjudicating upon the complaint - concluded that no part of the cause of action lay within the territorial jurisdiction of this Court. As is clear, the facts of the present case are distinguishable. 23. In the facts of this case, as indicated above, potentially there are apart from the petitioner, fifty two (52) applicants who could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suasive value. See observations in Commissioner of Income Tax vs. Highway Constructions Co. (P) Ltd. (1996) 217 ITR 234 (Gauhati), in which, the Division Bench of the Gauhati High Court has quoted with approval the judgment of the Bombay High Court in CIT Vs Thana Electricity Supply Ltd (1994) 206 ITR 727 Also see observations of the Division Bench of this Court in Taylor Instrument Co. (India) Ltd. vs. Commissioner of Income Tax (1998) 232 ITR 771 (Delhi), wherein the said principle has been clearly articulated. 25. With reference to the above, I may allude to another judgment of the Supreme Court, in the case of Stride well Leathers (P) Ltd vs. Bhankerpur Simbhaoli beverages (P) Ltd. (1994) 1 SCC 34. In this case the Supreme Court was concerned with interpretation of the Section 10F of the Companies Act, 1956 (Companies Act) wherein, an appeal is provided to the High Court against any order of the Company Law Board (CLB). The question which arose for consideration was whether the High Court, which could entertain an appeal against the order of the CLB, would be the Delhi High Court, in view of the situs of the principal bench of the CLB, being in Delhi or the High Court wherein, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt for deciding the issue of jurisdiction. For the sake of convenience, the relevant observations made in paragraph 12 of the judgment are extracted here in below: ....The provision in Section 10E for the Company Law Board to have more than one Bench and the Company Law Board Regulations 1991 framed under Section 10E(6) of the Act providing for sitting of the Benches at different places in the country does not give any clue to the construction of the expression the High Court in Section 10F. On behalf of the respondents it was urged, that all appeals under Section 10F would lie to the Delhi High Court where the Principal bench of the Company Law Board ordinarily sits but if the order under appeal is made at any other place in the country where the Bench sits, then the High Court having jurisdiction over that place can entertain the appeal. In our opinion, this is too nebulous a concept for deciding the question of jurisdiction and determination of the forum of appeal and, if accepted would tend to empower the Company Law Board to determine the forum of appeal by the choice of place of sitting under the Regulations for making the order. We have no doubt that the forum of appeal indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence petition under Section 130 of the Customs Act. On a review of the law available on the point this Court has held in Suraj Woollen Mills vs. Collector of Customs Bombay, (supra). That the only High Court competent to hear the reference petition was the High Court of Bombay, within whose jurisdiction the case had originated, and not the High Court of Delhi. 8. The definition of High Court for the purpose of Chapter XV as given in Clause (b) of Section 131C of the Customs Act, 1962 is identical with the one given in clause (b) of Section 36 of the Central Excise Act, 1944. The ratio of the decision in Suraj Woollen Mills' case (supra) applies on all the fours to the case at hand. 9. We also derive strength from the law declared by the Supreme Court in Stride well Leathers (P) Ltd vs. Bhankerpur Simbhaoli Beverages (P) Ltd. AIR 1994 SC 158. A question arose which is the High Court competent to hear an appeal under Section 10F of the Companies Act, 1956 from an order of the Company Law Board. The registered office of the Company was situated at Madras. The appeal was sought to be filed before the High Court of Delhi. Their Lordships held that jurisdictional competence of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
