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TMI Blog2025 (3) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorisation to the Petitioners against their Application for Grant of Advance Authorisation dated 31.12.2024 bearing File No. 09AX04000927AM25; iii) Issue a writ, order or other direction to the Respondents that raw pet coke (RPC) imports by the Petitioners for supply of calcined pet coke (CPC) to SEZ units in India are entitled to the grant of Advance Authorisation under the Foreign Trade Policy, 2023; iv) Issue a writ, order or other direction to the Respondents that the Petitioners are permitted to supply CPC to SEZ units in India by the order dated 15.02.2024 issued by the Commission for Air Quality Management in National Capital Region and Adjoining Areas read with the Hon'ble Supreme Court's order dated 10.10.2023 in W.P. (C) No. 13029/1985 M.C. Mehta v. Union of India; v) In the alternative and without prejudice to the above prayers, issue a writ, order or direction quashing the DGFT Notification No.68/2023 dated 07.03.2024, if and insofar as it purports to prohibit the supply of CPC by domestic calciners to SEZ units; vi) Pending the captioned Petition, stay the Rejection Letter dated 05.02.2025; vii) Pending the captioned Petition, permit the Petitioners to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application seeking Advance Authorisation ostensibly predicated on the revised policy condition 6(b)(iii) of the DGFT Notification no.68/2023 dated 07.03.2024. The relevant paragraphs of the same are as under: "1. Exports to SEZ units are covered under physical/direct exports wherein a Bill of Exports is generated, whereas deemed exports are defined in Para 7.01 read with Para 7.02 of FTP 2023, which does not cover exports to SEZ units as deemed exports. 2. As per DGFT Notification No. 68/2023 dt. 07.03.02024, the revised policy condition 06(b)(iii) import of RPC by calciners shall be on Actual use basis and shall not be transferred to any other unit(s) including SEZ unit(s). Export of CPC by calciners shall not be permitted." Aggrieved by the said rejection, the present writ petition has been preferred by the petitioner seeking prayers as abovementioned. 4. On 28.02.2025, Ms. Bobde, learned counsel appearing for the respondents had raised a preliminary objection as to the maintainability of the present petition on the anvil of lack of territorial jurisdiction of this Court to adjudicate the present petition. On the prima facie satisfaction that though there may be a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned rejection letter dated 05.02.2025, though has been given a colour of having been issued from the Hyderabad office, was signed by the ADGFT sitting at Delhi. According to him, it is this act of ADGFT which is the primary and material cause of action which has arisen within the territorial jurisdiction of this Court. 7. According to learned senior counsel, mere service or furnishing of copy of the said rejection letter dated 05.02.2025 upon the petitioner at its Hyderabad office may confer jurisdiction on the jurisdictional High Court at Hyderabad, yet clause (2) of Article 226 of the Constitution of India would enable the petitioner to maintain the writ petition before this Court too. In other words, the act of appending signature of ADGFT at Delhi on the impugned rejection letter coupled with the fact that the order passed by CAQM in compliance whereof the DGFT amended the import policy vide its Notification dated 07.03.2024 which was at Delhi, would confer the proper and appropriate territorial jurisdiction upon this Court. 8. He also emphasizes that the Hon'ble Supreme Court had granted permission to the CAQM to formulate guidelines. In support of the said contention, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia confers territorial jurisdiction undoubtedly upon this Court, due weight and credence to the above fact ought to definitely weigh on the mind of this Court before relegating the petitioner to avail his remedy before the High Court of Telangana or High Court of Andhra Pradesh. He thus, urges that the exercise of jurisdiction being concurrent, there is neither any plausible nor probable reason why this Court cannot entertain the present writ petition. CONTENTIONS OF THE RESPONDENT/UOI:- 12. Opposing the contentions, Ms. Rukhmini Bobde, learned counsel for the respondents vehemently places forth the contention that this Court cannot and should not exercise its writ jurisdiction predicated on the ratio laid down by the Full Bench of this Court in Sterling Agro Industries Ltd. vs. Union of India & Ors.; 2011 SCC OnLine Del 3162. She vociferously contends that apart from the fact that clause (2) of Article 226 of the Constitution does possibly confer jurisdiction on more than one High Court, but the doctrine of forum conveniens also has to be applied to all such cases where there may arise a doubt regarding the territorial jurisdiction of a particular High Court or other High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te to examine the law laid down by the Hon'ble Supreme Court as well as this Court, both on the provisions of clause (2) of Article 226 of the Constitution of India as well as the doctrine of forum conveniens. We are acutely aware that this doctrine has engaged the attention of the Apex Court as well as this Court and are of the opinion that the said doctrine would necessarily have to be applied in cases such as the present one. 16. At the outset, it would also be, in our opinion, relevant to understand that the provisions of clause (2) of Article 226 of the Constitution of India appear to have been engrafted in a language similar or akin to sub section (c) of section 20 of the Code of Civil Procedure, 1908 (hereafter referred to as "CPC, 1908"). The framers were acutely aware that apart from the territorial jurisdiction conferred upon a competent Civil Court exercising its powers in accordance with sub section (a) and (b) of section 20, CPC, 1908, it would be necessary to confer jurisdiction to such other places where a "cause of action" "wholly or in part" has arisen. The words, "cause of action", for the purpose of clause (2) of Article 226 of the Constitution of India, for all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the doctrine of forum conveniens. [See Bhagat Singh Bugga v. Dewan Jagbir Sawhney [Bhagat Singh Bugga v. Dewan Jagbir Sawhney, 1941 SCC OnLine Cal 247 : AIR 1941 Cal 670] , Madanlal Jalan v. Madanlal [Madanlal Jalan v. Madanlal, 1945 SCC OnLine Cal 145 : AIR 1949 Cal 495] , Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd. [Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd., 1997 CWN 122] , S.S. Jain & Co. v. Union of India [S.S. Jain & Co. v. Union of India, 1993 SCC OnLine Cal 306 : (1994) 1 CHN 445] and New Horizons Ltd. v. Union of India [New Horizons Ltd. v. Union of India, 1993 SCC OnLine Del 564 : AIR 1994 Del 126].]" 18. It is pertinent to note that clause (2) of Article 226 of the Constitution of India was inserted by virtue of the Fifteenth Amendment in 1963 as clause (1A). It was however, subsequently renumbered as clause (2) vide the Forty Second Constitutional Amendment in the year 1976. This is how it stands even today. The rationale behind such amendment is captured succinctly in the Statement of Objects and Reasons appended to the Fifteenth Amendment Bill, 1962. The same reads thus: "Under the existing Article 226 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are trying to restore the position as it was in the contemplation of the framers of the Constitution in the Constituent Assembly, so that that man has not got to travel to Delhi with such scarce accommodation as is there." It is imperative to also understand that clause (2) to Article 226 of the Constitution of India supplements clause (1) of Article 226 and not supplant it. 19. At this juncture, it may be relevant to also trace the roots and historical significance of the doctrine of forum conveniens. It is relevant to note that the doctrine of forum non-conveniens had its origins in Scotland where the Court applied this doctrine as an extension to the plea of forum non-competens, as the parties were not residents of Scotland as held in the case of Vernor vs. Elvies; 6 Disct. Of Dec. 4788 (1610). Thereafter, it appears to have been adopted by the American Courts which developed it further and which was also applied by the Courts in England. We are refraining from referring to the judgements rendered by foreign courts in extenso as it is neither relevant nor germane to the lis. 20. Coming closer to home, the Hon'ble Supreme Court in the case of Kusum Ingots (supra) recognised t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction upon this Court over the subject lis. That apart, by referring to prayer (v) of the writ petition, he has also emphasised that the petitioner has laid challenge to Notification No. 68/2023 dated 07.03.2024 issued by the DGFT which itself is located in Delhi. He contended that the impugned rejection letter being based on this notification, the issuance of such notification at Delhi could also be construed as the "cause of action" giving reason to file the writ petition at Delhi. 24. The above contentions are fallacious and are unmerited in our considered opinion. So far as the first submission is concerned, the Competent Authority while rejecting the application vide the impugned letter was acting as the Regional Authority exercising power, authority and jurisdiction over the geographical area within which the petitioner was located, i.e., at Hyderabad. As such, the authority conferred upon the Regional Authority was restricted to such geographical area and not beyond. It is not the case of the petitioner and admittedly so, that the Regional Authority was conferred power to exercise such authority pan India. Thus, the mere appending of his signature at a particular lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questioning the constitutionality of a parliamentary Act shall not be maintainable in the High Court of Delhi only because the seat of the Union of India is in Delhi. (See Abdul Kafi Khan v. Union of India [AIR 1979 Cal 354].)" It is also relevant to consider the opinion rendered by the Hon'ble Supreme Court in State of Goa (supra). Contrary to what the learned senior counsel for the petitioner sought reliance on this decision for, the ratio seems to favour the respondents. This would be clear from para nos.16, 17, 20 and 21 of the said judgement which read thus: "16. The expression "cause of action" has not been defined in the Constitution. However, the classic definition of "cause of action" given by Lord Brett in Cooke v. Gill [Cooke v. Gill, (1873) LR 8 CP 107] that "cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court", has been accepted by this Court in a couple of decisions. It is axiomatic that without a cause, there cannot be any action. However, in the context of a writ petition, what would constitute such "cause of action" is the material facts which are impera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of lottery business being run by the respondent before it in Goa. However, the respondent company was located in the State of Sikkim. Aggrieved by such levy, the respondent company had filed a writ petition before the High Court at Sikkim. The Apex Court opined that the immediate civil consequence arising from the notification impugned therein was that tax @ 14% which was to be paid by the respondent company at Goa. No consequence or effect was felt in Sikkim. In fact it was noticed by the Hon'ble Supreme Court that pleadings did not reflect any adverse consequence within the local limits of the territorial jurisdiction of the High Court at Sikkim. 26. Similarly, prayer (v) in this petition is admittedly in the alternative to the other prayers, and effect and consequence of the relief of quashing the Notification No. 68/2023 dated 07.03.2024 would only be at Hyderabad or Vishakhapatnam or at Jharsuguda, but surely not at Delhi. In fact there would be no consequence at Delhi qua the petitioner. In Sterling Agro (supra), the Full Bench of this Court, while relying upon Kusum Ingots (supra) and Ambica Industries vs. CCE; (2007) 6 SCC 769, had authoritatively laid down the bind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows : (a) The finding recorded by the Full Bench that the sole cause of action emerges at the place or location where the Tribunal/appellate authority/revisional authority is situate and the said High Court (i.e., Delhi High Court) cannot decline to entertain the writ petition as that would amount to failure of the duty of the court cannot be accepted inasmuch as such a finding is totally based on the situs of the Tribunal/appellate authority/revisional authority totally ignoring the concept of forum conveniens..." That apart, the ratio laid down by the Full Bench of this Court in Sterling Agro (supra) would be binding upon this Bench. No law is required to state that a judgment of the Full Bench would be binding on the Benches of a lesser strength. Ignoring the judgment of the Full Bench, in our view, would undermine its soundness. Reference in this regard can be made to the decision in Karnail Singh vs. State of Haryana & Ors.; 2024 SCC OnLine SC 961. 27. Yet another argument, though addressed weakly, was the fact of the petitioner having filed a writ petition before this Court which was entertained and no similar grounds of objection were taken by the respondents and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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