TaxTMI 
TaxTMI 
TaxTMI 
2024 (11) TMI 1460
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....ach the Gwalior Bench. 3. Writ Appeal No.1804/2024 arises out of order dated 24.07.2024 passed in Writ Petition No.18824/2024 wherein also another learned Single Judge of this Court, while dismissing the petition applied the principles of Forum Conveniens. Liberty was granted to the appellant/petitioner to approach the Gwalior Bench of this Court. 4. In Writ Appeal No.2228/2023, petitioners had impugned an order dated 03.02.2020, whereby petitioners who were earlier appointed on the post of Lecturer/UDT were treated as Shiksha Karmi and benefit of 5th Pay Commission accorded w.e.f. 01.07.2018. Said order dated 03.02.2020 was issued by the Upper Secretary, Government of Madhya Pradesh, Department of Welfare of Scheduled Castes and Scheduled Tribes, Bhopal. 5. Appellants approached this Bench by way of a Writ Petition (W.P.No. 6010/2020). Objection with regard to maintainability of the petition was taken. It was contended that the Bench at Jabalpur would not have the territorial jurisdiction as the petitioners in the Writ Petition were all posted in the territories within the territorial jurisdiction of the Bench at Gwalior. 6. In Writ Appeal No.1804/2024, appellant/petitioner im....
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....s, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (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. (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without- (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel o....
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....ia, to issue appropriate Writ, notwithstanding that the cause of action has not arisen within its territory. On the other hand, if the cause of action, wholly or in part arises within the territory on which the High Court exercises jurisdiction, said High Court would be empowered under Article 226 (2) of the Constitution of India to issue appropriate Writ, notwithstanding that the seat of the person, Authority or Government is not situated within its territory. 13. Learned Single Judge by order dated 18.10.2023 in Writ Petition No.6010/2020 (Writ Appeal No.2228/2023) has held that the only reason for filing the Writ Petition before the Principal Seat of this Court was that the impugned order had been issued from Bhopal which is situated in the territorial jurisdiction of this Court. Learned Single Judge held that even if assuming part of cause of action had arisen within the territorial jurisdiction of this Court, however, applying the principles laid down by the Supreme Court in Kusum Ingots and Alloys Ltd. Vs. Union of India and Another, 2004 (6) SCC 254 and Ambica Industries Vs. Commissioner of Central Excise, 2007 (6) SCC 769, the High Court could refuse to exercise its jurisd....
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....ads as under: " (IV) Territorial Jurisdiction of the Judges in the Benches - In exerciseof the powers conferred by sub-section (2) of section 51 of the States Reorganization Act, 1956 (37 of 1956), the President of India, by orders dated 28th of November, 1968 and 23rd of June 1971- (1) has established permanent Benches of the High Court at Indore and Gwalior; (2) has directed that such Judges of the High Court, being not less than two in number as the Chief Justice may from time to time nominate, shall sit at each of the aforesaid two places; (3) has further directed that such Judges sitting at - (a) Indore, shall exercise the jurisdiction and power for the time being vested in the High Court, in respect of cases arising in revenue districts of Indore, Ujjain, Dewas, Dhar, Jhabua, Ratlam, Mandsaur, West Nimar (Khargone), Shajapur and Rajgarh; (b) Gwalior, shall exercise the jurisdiction and power for the time being vested in the High Court, in respect of cases arising in revenue districts of Gwalior, Shivpuri, Datia, Guna, Vidisha (Bhilsa), Bhind and Morena; (4) has invested the Chief Justice with the power to order that any case or class of cases arising in any such....
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.... the nature of the impugned order giving rise to a cause of action. " ***** ***** ***** 19. Passing of a legislation by itself in our opinion does not confer any such right to file a writ petition unless a cause of action arises therefor. 20. A distinction between a legislation and executive action should be borne in mind while determining the said question. 21. A parliamentary legislation when it receives the assent of the President of India and is published in the Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled,....
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....ause of action arises wholly or in part at a place within the specified Oudh areas, the Lucknow Bench will have jurisdiction. If the cause of action arises wholly within the specified Oudh areas, it is indisputable that the Lucknow Bench would have exclusive jurisdiction in such a matter. If the cause of action arises in part within the specified areas in Oudh it would be open to the litigant who is the dominus litis to have his forum conveniens. The litigant has the right to go to a court where part of his cause of action arises. In such cases, it is incorrect to say that the litigant chooses any particular court. The choice is by reason of the jurisdiction of the court being attracted by part of cause of action arising within the jurisdiction of the court. Similarly, if the cause of action can be said to have arisen part within specified areas in Oudh and part outside the specified Oudh areas, the litigant will have the choice to institute proceedings either at Allahabad or Lucknow. The court will find out in each case whether the jurisdiction of the court is rightly attracted by the alleged cause of action." 25. The said decision is an authority for the proposition that the pl....
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.... the appellant placed strong reliance was rendered at a point of time when clause (2) of Article 226 had not been inserted. In that case the Court held that the jurisdiction of the High Court under Article 226 of the Constitution of India, properly construed, depends not on the residence or location of the person affected by the order but of the person or authority passing the order and the place where the order has effect. In the latter sense, namely, the office of the authority which is to implement the order would attract the territorial jurisdiction of the Court was considered having regard to Section 20(c) of the Code of Civil Procedure as Article 226 of the Constitution thence stood, stating : (AIR p. 540, para 16) "The concept of cause of action cannot in our opinion be introduced in Article 226, for by doing so we shall be doing away with the express provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to persons residing far away from New Delhi who are aggrieved by som....
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....the seat of the Parliament was at Delhi thus the Delhi High Court had the requisite jurisdiction to entertain the Writ Petition. 23. Negating the said contention, the Supreme Court held that passing of a legislation by itself did does not confer any right to file a writ petition unless a cause of action arises therefor. The distinction between a legislation and executive action should be borne in mind while determining the said question. 24. The Supreme Court further held that a Parliamentary Legislation applies to the entire territory of India. If passing of a legislation gives rise to a cause of action then a writ petition questioning the constitutionality thereof could be filed in any High Court of the country. Such a course is not followed because a cause of action will arise only when the provisions of the Act or some of them are implemented and said implementation would give rise to civil or evil consequences to the petitioner. A writ court would not determine a constitutional question in a vacuum. The Court must have the requisite territorial jurisdiction. 25. The Supreme Court in Kusum Ingots and Alloys Ltd. (supra) thus held that a "writ petition questioning the constit....
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....ion and not in the context of which said observation has been made. They have erred in not noticing the observation of the Supreme Court in paragraph 25 of Kusum Ingots and Alloys Ltd. (supra) (@ page 263) with regard to concurrent jurisdiction between two High Courts. The Supreme Court in held "When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum." 31. Learned Judges have erred in not appreciating that Article 226 of the Constitution of India prior to its amendment by the 15th Constitutional Amendment Act, 1963, empowered the High Courts to issue writs based only on the seat of the person, authority or the Government. Subsequently, by the said amendment said Article was amended and Article 226(1A) was inserted, which stipulated that "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 ....
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.... from an order passed by the Central Excise and Service Tax Appellate Tribunal, which had its seat at New Delhi. The original assessment order under challenge had been passed at Lucknow, Uttar Pradesh. The Supreme Court noticed that the Tribunal exercised jurisdiction over three states and held that when an appeal is provided under a statute, Parliament must have thought of one High Court. By way of necessity, a tribunal may have to exercise jurisdiction over several States but it did not appeal to any reason that Parliament intended that appeals may be filed before different High Courts at the sweet will of the party aggrieved by the decision of the tribunal. The Supreme Court held that in a case of this nature the cause of action doctrine may not be invoked. 36. The Supreme Court in Ambica Industries (supra) further held that the High Court would exercise its discretionary jurisdiction as also power to issue writ of certiorari in respect of the orders passed by the subordinate courts within its territorial jurisdiction or if any cause of action has arisen there within but the same tests cannot be applied when the appellate court exercises a jurisdiction over a tribunal situated ....
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....eme Court held "Assuming that a slender part of the cause of action did arise within the State of Sikkim, the concept of forum conveniens ought to have been considered by the High Court." 38. Clearly, the judgment in Summit Online Trade Solutions (P) Ltd (supra) is not applicable to the facts of the present case. In the instant case, Petitioners have invoked Article 226(1) i.e. the concept of situs to file the Writ Petitions and further the cause of action has also arisen within the territorial jurisdiction of the Principal Bench at Jabalpur since the impugned orders have also been issued from within its territory. 39. The Judgment of the Full Bench of this Court in K.P. Govil (supra) is not applicable to the facts of the present case. The Petitioner, therein was an Assistant Professor in the Agriculture College, Gwalior run by the Jawaharlal Nehru Krishi Vishwa Vidyalaya, Jabalpur, and was aggrieved by his pay fixation. He had filed a petition in Gwalior and an objection was taken by the Respondents that the Bench at Gwalior would have no jurisdiction as the University was located at Jabalpur and the alleged wrong fixation of pay, giving cause for filing the petition, was made a....