TaxTMI 
TaxTMI 
2012 (6) TMI 76
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....Sandeep Bajaj, Advs. for UOI. Mr.A.S. Chandhiok, ASG with Mr. Mukesh Anand with Mr. Shailesh Tiwari, Mr. Sumit Batra & Mr.R.C.S. Bhadoria, Mr. Jayendra Advs. , Mr.D.K. Sharma, Adv. Ms.Yogmaya Agnihotri, Adv, Mr.Ashwani Mata, Sr. Adv. with Mr.Rishi Agrawala, Mr.Akshay Ringe and Ms. Kanika Agnihotri, Ms. Misha Rohtagi, Mr. Vaibhav Agnihotri, Advs., Mr.A.S. Chandhiok, ASG with Mr. Sandeep Bajaj, Mr. G.S. Parwanda, Ms. Riya Kaul, Ms. Neha Rastogi, Advs. for UOI., Mr.A.S. Chandhiok, ASG with Mr. Sandeep Bajaj, Mr. G.S. Parwanda, Ms. Riya Kaul, Ms. Neha Rastogi, Advs. for UOI. Mr.A.S. Chandhiok, ASG with Mr. Mukesh Anand with Mr. Shailesh Tiwari, Mr. Sumit Batra & Mr.R.C.S. Bhadoria, Mr. Jayendra Advs. Department of Central Excise., Mr.A.S. Chandhiok, ASG with Mr. Sandeep Bajaj, Mr. G.S. Parwanda, Ms. Riya Kaul, Ms. Neha Rastogi, Advs. for UOI. Mr.A.S. Chandhiok, ASG with Mr. Mukesh Anand with Mr. Shailesh Tiwari, Mr. Sumit Batra & Mr.R.C.S. Bhadoria, Mr. Jayendra Advs. Department of Central Excise. Judgment DIPAK MISRA, CJ In view of the similitude of the principal controversy pertaining to the jurisdiction of the High Court of Delhi being involved in these writ petitions, they....
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....ner (Appeals)-I, Customs and Central Excise & Service Tax at Indore (M.P.). 5. Being dissatisfied with the order passed by the revisional authority, the petitioner has invoked the inherent jurisdiction of this Court under Article 226 of the Constitution of India solely on the foundation that the revisional authority, namely, the office of the Joint Secretary to the Government of India, is in Delhi and, therefore, this Court has the territorial jurisdiction to deal with the lis in question. It is proponed in the petition that it is the Joint Secretary who is answerable to justify his order and, ergo, this Court can and should dwell upon the controversy. In the grounds enumerated in the writ petition, reliance has been placed on the decision rendered in New India Assurance Company Limited (supra). 6. We have heard the learned counsel for the parties and Mr. Atul Nanda, learned senior counsel as the Amicus Curiae. 7. At this juncture, we think it apposite to refer to the history of Article 226 of the Constitution of India. Initially, Article 226 of the Constitution of India read thus : "226. (1) Notwithstanding anything in Article 32, every High Court s....
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....ope for introducing the concept of cause of action as the basis for exercise of jurisdiction under Article 226. Their Lordships, while dealing with the first aspect, opined thus : "It would, therefore, in our opinion be wrong to introduce in Article 226 the concept of the place where the order passed has effect in order to determine the jurisdiction of the High Court which can give relief under Article 226. The introduction of such a concept may give rise to confusion and conflict of jurisdiction." 10. Thereafter, it has been held as follows : "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 concerned, it is within the territories if its office is located there. So far as a Government is concerned it is within the territories only if its seat is within those territories." 11. Their Lordships then ....
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....ield, the Parliament brought the 15th Amendment and inserted Clause (1A) in the Constitution by the 15th Amendment Act, 1963. Clause (1A) read as follows : "(1A) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories." 13. By the 42nd constitutional amendment, Clause (1A) was renumbered as Clause (2) and in the present incarnation, it reads as follows : "(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories." 14. From the a....
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....d eventually held thus : "29. As held in Nasiruddin's case, even where part of the cause of action arose, it would be open to the litigant, who is the dominus litis to have his forum conveniens. In the present case, since the Appellate Authority is situated at New Delhi, the Delhi High Court has the jurisdiction under Article 226 of the Constitution of India and, therefore, there was no occasion for the learned single Judge to apply the principle of forum conveniens to refuse to exercise the jurisdiction. The principle of forum non-conveniens originated as a principle of international law, concerned with Comity of Nations. A domestic court in which jurisdiction is vested by law otherwise ought not to refuse exercise of jurisdiction for the reason that under the same law some other courts also have jurisdiction. However, the remedy under Article 226 being discretionary, the court may refuse to exercise jurisdiction when jurisdiction has been invoked mala fide. There is no such suggestion in the present case. Nothing has been urged that it is inconvenient to the contesting respondent to contest the writ before this Court. The counsel for the contesting respondent ....
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....hin the jurisdiction of this Court. The appellate authority in the present case having passed the order which is impugned in the petition, being situated within the jurisdiction of this Court, even if the cause of action doctrine were to be invoked, substantial part of the cause of action has accrued within the jurisdiction of this Court only. Even the language of the impugned order giving rise to the cause of action in the writ petition, discloses significant cause of action to have accrued within the jurisdiction of this Court. This Court while deciding this writ petition is not required to issue any direction, order or writ to any person outside its jurisdiction. Section 110H of the Insurance Act provides for appeal to the Central Government, seat whereof is admittedly within the jurisdiction of this Court. CONCLUSION 31. For the foregoing reasons, we hold that where an order is passed by an appellate authority or a revisional authority, a part of cause of (sic action) arises at that place. When the original authority is situated at one place and the appellate authority is situated at another, a writ petition would be maintainable at both the places. As the orde....
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....High Court has the jurisdiction under Article 226 of the Constitution of India and, therefore, there was no occasion for the learned Single Judge to apply the principle of forum conveniens to refuse exercise of jurisdiction. 17. Presently, we shall proceed to advert to the authorities that have been referred to and relied upon by the Full Bench for the simon pure reason that understanding of the principles exposited therein would enable us to appreciate the enunciation of the law by the Full Bench and also refer to certain authorities that have been cited before us. 18. In the case of Sri Nasiruddin (supra), it has been held thus : "...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" ....
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....lied upon the judgment of the Supreme Court in the case of Navinchandra N. Majithia v. State of Maharashtra, The Supreme Court held that the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising Jurisdiction in relation to the territories within which the cause of action, wholly or in part arises and it is no matter that the seat of the Authority concerned is outside the territorial limits of the jurisdiction of that High Court. The Supreme Court further held that the amendment was aimed at widening the width of the area for reaching the writs issued by different High Courts. The Supreme Court also held that the words "cause of action wholly or in part arises" seem to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of the Courts." 20. In Alchemist Ltd. and Anr. v. State Bank of Sikkim and Ors., (2007) 11 SCC 335, after referring to the decisions in A.B.C. Laminart (P) Ltd. v. A.P. Agencies, AIR 1989 SC 1239, Union of India v. Oswal Woollen Mills Ltd., (1984) 2 SCC 646 = 1984 (18) E.L.T. 284 (S.C.), State of Rajasthan v. Swaika Pro....
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....art of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained." 37. From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellant- petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a "part of cause of action", nothing less than that. 38. In the present case, the facts which have been pleaded by the Appellant Company, in our judgment, cannot be said to be essential, integral or material facts so as to constitute a part of "cause of action" within the meaning of Article 226(2) of the Constitution. The High Court, in our opinion, therefore, was not wrong in ....
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....rth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour." Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition."        [Emphasis added] 22. In Kusum Ingots & Alloys Ltd. (supra), the Apex Court posed the question whether the seat of Parliament or the legislature of a State would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under Article 226 of the Constitution of India. Their Lordships not only referred to clause (2) of Ar....
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....ithin whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority. x        x     x     x      x 29. In view of clause (2) of Article 226 of the Constitution of India, now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh (supra) has, thus, no application."            [Emphasis added] 24. After so stating, in paragraph 30, their Lordships held thus : "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 inv....
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....heir application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. If we apply this principle then we see that none of the facts pleaded in Paragraph 16 of the petition, in our opinion, fall into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad." 27. In Rajendran Chingaravelu v. R.K. Mishra, (2010) 1 SCC 457, the appellant, a Computer Engineer, with the intention to buy a property at Chennai, identified a prospective seller at Chennai and proceeded from Hyderabad with a large sum of money to Chennai and when his baggage was checked at the Hyderabad airport by the security personnel, he was allowed to leave Hyderabad. However, at Chennai, some officers of the Income Tax Investigation Win....
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....ve opined that a part of the cause of action arose at Hyderabad as the officers at Hyderabad had alerted their counterparts at Chennai airport and further consequential income tax proceedings were also initiated at Hyderabad. In our humble view, the concept of cause of action which has been referred to in the said decision falls within the concept of cause of action as explained and elucidated in Alchemist Ltd. (supra). 29. In Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. & Ors., (2006) 3 SCC 658, the Apex Court referred to the decision in Kusum Ingots & Alloys Ltd. (supra) and observed as follows : "26 ...with a view to determine the jurisdiction of one High Court vis-à-vis the other the facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be made and the facts which have nothing to do therewith cannot give rise to a cause of action to invoke the jurisdiction of a court. In that case it was clearly held that only because the High Court within whose jurisdiction a legislation is passed, it would not have the sole territorial jurisdiction but all the High Courts where cause of action arises, will have jurisdiction..." Th....
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....e 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. (supra) 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. 33. In view of the aforesaid analysis, we are inclined to modify the findings and conclusions of the Full Bench in New India Assurance Company Limited (supra) and proceed to state our conclusions in seriatim as 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 C....