TaxTMI 
TaxTMI 
2012 (10) TMI 1281
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....unsel being queried, what came through was, that the only 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 (Develo....
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.... the petitioner before the Revisional Authority, and thus, the hearing on 26.03.2012 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. Si....
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....ourt, takes a particular view, which is favourable to an aggrieved party as against the view of High Court in their own State, then the aggrieved 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 V....
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....order in appeal to the High Court of the State from which the appeal had come. (iv) The suggestion that the place of the location of the Bench which heard and determines an appeal may be adopted 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 sai....
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....ared the said provision to be ultra vires. To grant such a power to the Tribunal or even to a High Court, in a reference under Section 256 of the Income-tax Act would again amount to conferring jurisdiction upon them to pronounce upon the constitutional validly of the provisions 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....
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....rder of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay. 14. Furthermore, when an appeal is provided under a statute, 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 ....
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....d Anr., (2002) 1 SCC 567 and Alchemist Ltd. Vs. State Bank of Sikkim & Ors (2007) 11 SCC 335 contends that this court has jurisdiction. Reference is also been made to Ambica Industries (supra). 19. In my view, the Full Bench decision of this court in Sterling Agro Industries Ltd. (supra), after examining a whole range of case law, including the Supreme 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....
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....igh Court depending upon the factual matrix of each case in view of what has been stated in Ambica Industries (supra) and Adani Exports Ltd. (supra). (g) The conclusion of the earlier decision of the Full Bench in New India Assurance Company Limited (supra) that since the original order merges into the appellate order, the place where the appellate authority is located is also forum conveniens is not correct. (h) 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.....
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....tion, arose within the territorial jurisdiction of this Court. 22.3 In Vinod KR Bhora's case, an inverse situation had arisen, which is that the Single Judge had repelled the objection taken by the Appellant (respondent before the Single Judge), that this Court, had no territorial jurisdiction to entertain the writ petition. It arose in the background of the following facts: The Appellant had taken a unit-linked insurance plan. The Appellant had suffered a heart condition. The 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 St....
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....e Bombay High Court, and assume that the Bombay High Court were to take a view contrary to the one that this court would take, respondent No. 2/State Government of Maharashtra, would be bound to follow the view of the Bombay High Court. A writ issued by this Court would thus, in a sense, lose its efficacy. The entire exercise would be in vain. The judgment of this Court would neither be binding on the Bombay High Court nor the State Government of Maharashtra. At best it can only have a persuasive 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....
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....h respect to the situation which could arise if another Bench of the CLB, were to hear the appeal as against the principal Bench, which is situated in Delhi. It was suggested on behalf of the respondents that, depending on the locus of the Bench of the CLB, the High Court within whose territorial jurisdiction, the Bench carried out its adjudicatory function, would have jurisdiction in the matter. The Supreme Court repelled this submission for the reason that this would result in "too nebulous" a concept 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 ....
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....r arises which would only be competent to hear the reference petition. 7. A similar question arose under Section 130 of the Customs Act, 1962. Suraj Woollen Mills is situated at Panipat. It imported woollen waste from foreign countries which reached the Bombay seaport. There the proceedings under Section 108 of the Customs Act were initiated by the Intelligence Officer of DRI Bombay resulting into penalty being imposed which was appealed against to CEGAT New Delhi. A question arose which will be the High Court competent to hear a reference 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 ....