TaxTMI 
TaxTMI 
2016 (12) TMI 1817
X X X X Extracts X X X X
X X X X Extracts X X X X
....resent controversy is thus, the petitioner had been accused of killing 5 persons at Village Cher, Baikunthpur District, Chhattisgarh on the intervening night of 26-27.11.2004. He was convicted by the Sessions Court at Koriya District, Chhattisgarh and sentenced to death. On an appeal filed, the High Court of Chhattisgarh confirmed the sentence of death and dismissed the appeal preferred by the petitioner herein on 08.03.2010. On 23.02.2012, the Supreme Court upheld the death sentence and dismissed the appeal. The petitioner filed a mercy petition to the President on 09.04.2012. As per procedure, the petition was first sent to the Government of Chhattisgarh for placing the same before the Governor of Chhattisgarh under Article 161 of the Constitution of India. The Governor rejected the mercy petition on 08.04.2013 and thereafter, the President also rejected the mercy petition on 05.05.2014. The Supreme Court has dismissed the review petition on 10.02.2015. Aggrieved by the rejection of his mercy petition by the Governor of Chhattisgarh and the President of India, the petitioner has filed the present writ petition. 4. During the course of the present proceedings, on 05.09.2016, th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of challenge relates to procedural lapses in the decision of the Mercy Petition. It is submitted that Mercy Petition was decided in Delhi by the President of India." (Emphasis Supplied) 5.2. Learned counsel for the applicant/respondent no.2 has contended that no cause of action has arisen in Delhi and accordingly, this court has no jurisdiction to entertain the present petition. Mr. Jha, learned counsel for the applicant submits that the crime was committed at Chhattisgarh; the trial took place at Chhattisgarh; appeal was heard by the Chhattisgarh High Court; in the proceedings before the Supreme Court, the respondent no. 2/ State of Chhattisgarh was the sole respondent; the mercy petition was submitted through the Jail Superintendent, Raipur, Chhattisgarh; and the rejection was initially communicated to the Secretary (Home) (Jail), Government of Chhattisgarh. As per procedure, the rejection of a mercy petition by the President is communicated by the Central Government to the State Government, the respondent no. 2 in the present case, with a direction to inform the petitioner, thus no cause of action has arisen within the terroritial jurisdiction of this Court. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aced. Mr. Jha relies upon paragraph 26 to fortify his submission; the paragraph reads as under: "26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad that the situs of issue of an order or notification by the Government would come within the meaning of the expression "cases arising" in clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. 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 within the purview thereof. 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 or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not used as a device for harassment, even of an apparent transgressor of the law. Law's endeavour is to bring the culprit to book and to provide succour for the aggrieved party but not to harass the former through vexatious proceedings. Therefore, precision and exactitude are necessary especially where the location of a litigation is concerned." (Emphasis Supplied) 5.8. Accordingly, the counsel concludes that this court does not have any jurisdiction in the present petition and it can be entertained only by the High Court of Chhattisgarh as per the basic tenets of criminal law. 5.9. As an alternative submission, learned counsel has contended that incase this court comes to a conclusion that it is vested with jurisdiction to entertain the present petition, it should still refrain from doing so. He primarily relies upon the concept of forum non conveniens. Elaborating his arguments, Mr. Jha submits that the scope of the present proceedings is extremely limited. He states that the advice of the Ministry of Home Affairs cannot be looked into; what can be looked into is whether the material upon which such advice was tendered was proper. In the present case, co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....use (2). The underlying object of amendment was expressed in the following words: "Under the existing Article 226 of the Constitution, the only High Court which has jurisdiction with respect to the Central Government is the Punjab High Court. This involves considerable hardship to litigants from distant places. It is, therefore, proposed to amend Article 226 so that when any relief is sought against any Government, authority or person for any action taken, the High Court within whose jurisdiction the cause of action arises may also have jurisdiction to issue appropriate directions, orders or writs." (emphasis supplied) The effect of the amendment was that the accrual of cause of action was made an additional ground to confer jurisdiction on a High Court under Article 226 of the Constitution. 17. As Joint Committee observed: "This clause would enable the High Court within whose jurisdiction the cause of action arises to issue directions, orders or writs to any Government, authority or person, notwithstanding that the seat of such Government or authority or the residence of such person is outside the territorial jurisdiction of the High Court. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rtains to legislative actions, learned counsel has relied upon the judgments of this court in Smt. Malini Mukesh Vora v. Union of India, 2009 SCC OnLine Del 1776 (paragraphs 18, 19 and 20) and Sterling Agro Industries Ltd. (Supra) (paragraphs 22, 23 and 30). 6.8. Accordingly, the counsel for the petitioner submits that this court would have the jurisdiction to entertain the present petition. 6.9. With regard to the submission made by the counsel for the applicant with respect to forum conveniens. Counsel for the non-applicant submits that this court will be the forum of convenience as the primary relief is sought against respondent no. 1 and not the respondent no. 2. It is the advice tendered by the Cabinet to the President that is to be scrutinized and not the judicial records of the criminal trial. While relying on the judgment of Sterling Agro Industries Ltd. (Supra), learned counsel sought to distinguish her case inasmuch as the proceedings before the President cannot be said to be in the form of appellate proceedings. Even though, as per procedure, mercy petitions are first sent to the Governor of the concerned state and then decided by the President; the powers of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gh the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. It is not denied, and indeed it has been repeatedly affirmed in the course of argument by learned counsel, Shri Ram Jethmalani and Shri Shanti Bhushan, appearing for the petitioners that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) of the Constitution, must act in accordance with such advice. We may point out that the Constitution Bench of this Court held in Maru Ram v. Union of India [(1981) 1 SCC 107 : 1981 SCC (Cri) 112 : (1981) 1 SCR 1196] , that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own, and that the advice of the Government binds the Head of the State." (Emphasis Supplied) 11. The Apex Court had also accepted the following observations of United States‟ Chief Justice Taft in Ex parte Philip Grossman, 267 US 87: "Executive clemency exists to afford relief from undue ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppellant in the same way in which an order of an appellate or revisional criminal court has the effect of reducing the sentence passed by a trial court, and after discussing the law relating to the power to grant pardon, he said: ... It is apparent that the power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court." ... 13. It seems to us that none of the submissions outlined above meets the case set up on behalf of the petitioner. We are concerned here with the question whether the President is precluded from examining the merits of the criminal case concluded by the dismissal of the appeal by this Court or it is open to him to consider the merits and decide whether he should grant relief under Article 72. We are not concerned with the merits of the decision taken by the President, nor do we see any conflict be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....considering both Indian and international judicial pronouncements on the subject had observed as under: "14. Both Articles 72 and 161 repose the power of the People in the highest dignitaries i.e. the President or the Governor of a State, as the case may be, and there are no words of limitation indicated in either of the two Articles. The President or the Governor, as the case may be, in exercise of power under Articles 72/161 respectively, may examine the evidence afresh and this exercise of power is clearly independent of the judiciary. This Court, in numerous instances, clarified that the executive is not sitting as a court of appeal, rather the power of President/Governor to grant remission of sentence is an act of grace and humanity in appropriate cases i.e. distinct, absolute and unfettered in its nature. ... 19. In concise, the power vested in the President under Article 72 and the Governor under Article 161 of the Constitution is a constitutional duty. As a result, it is neither a matter of grace nor a matter of privilege but is an important constitutional responsibility reposed by the People in the highest authority. The power of pardon is essent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the application that may give rise to a cause of action. In respect of orders of the executive, the Court had held as under: "27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it iAs 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." (Emphasis Supplied) 18. The concept of cause of action was inserted as Article 226 (1A) by the 15th Amendment and later renumbered as Article 226 (2) by the 42nd Amendment. The said concept was comprehensively discussed in Alchemist Ltd. (Supra). Further the Full Bench of this Court in Sterling Agro In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nding is totally based on the situs of the tribunal/appellate authority/revisional authority totally ignoring the concept of forum conveniens. (b) Even if a miniscule part of cause of action arises 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. (supra). (c) 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. (d) 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. (e) The finding that the court may refuse to exercise jurisdiction under Article 226 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction in holding that no part of cause of action could be said to have arisen within the territorial jurisdiction of the High Court of Punjab and Haryana. He particularly referred to the following observations: "12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.[See Bhagat Singh Bugga v. Dewan Jagbir Sawhney [AIR 1941 Cal 670 : ILR (1941) 1 Cal 490] , Madanlal Jalan v. Madanlal [(1945) 49 CWN 357 : AIR 1949 Cal 495] , Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd. [1997 CWN 122] , S.S. Jain & Co. v. Union of India [(1994) 1 CHN 445] and New Horizons Ltd. v. Union of India [AIR1994 Del 126]." (Emphasis Supplied) 25. The concept was further explained in Sterling Agro Industries Ltd. (Supra), a decision by a five Judges bench of the Delhi High Court. Hon‟ble Mr. Justice Deepak Misra, speaking for the bench held as under: 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 als....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... In Tehran v. Secretary of State for the Home Department, [2006] UKHL 47, the House of Lords expounded the doctrine in the following manner: "The doctrine of forum non conveniens is a good example of a reason, established by judicial authority, why a court should not exercise a jurisdiction that (in the strict sense) it possesses. Issues of forum non conveniens do not arise unless there are competing courts each of which has jurisdiction (in the strict sense) to deal with the subject matter of the dispute. It seems to me plain that if one of the two competing courts lacks jurisdiction (in the strict sense) a plea of forum on conveniens could never be a bar to the exercise by the other court of its jurisdiction." We may also quote the following passage from the judgment of US Supreme Court in Gulf Oil Corporation v. Gilbert: 330 U.S. 501: "The principle of forum non conveniens 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 ....