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M/s. Sterling Agro Industries Ltd. Versus Union of India & Ors., Jan Chetna … Versus Ministry of Environment and Forests & Ors., Manu Jain Versus Smt. Neerja Shah & Ors., M/s Bafna Healthcare Pvt. Ltd. & Ors. Versus Commissioner of Central Excise Delhi-IV & Ors., The Commissioner of Trade Tax & Anr. Versus M/s. Ricoh India Ltd. & Ors.

2012 (6) TMI 76 - DELHI HIGH COURT - LB

Doctrine of forum conveniens - Territorial Jurisdiction of High Court - Decision in the matter of New India Assurance Company Limited v. Union of India and Others [2012 (6) TMI 96 (HC)] - Held that:- 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 fail .....

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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. - The conclusion that where the appellate or revisional authority is located const .....

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writ petition, the doctrine of forum conveniens and the nature of cause of action are required to be scrutinized by the High Court depending upon the factual matrix of each case in view of what has been stated in Ambica Industries (2007 (5) TMI 21 (SC)) and Adani Exports Ltd. (2001 (10) TMI 321 (SC)). - The conclusion of the earlier decision of the Full Bench in New India Assurance Company Limited [2012 (6) TMI 96 (HC)] “that since the original order merges into the appellate order, the plac .....

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, Advs., Mr. R. Santhanam with Mr.A.P. Sinha, Advs. , Mr.A.S. Chandhiok, ASG with Mr. Sandeep Bajaj, Mr. G.S. Parwanda, Ms. Riya Kaul, Ms. Neha Rastogi, Advs. for UOI. For the Respondent: Mr.A.S. Chandhiok, ASG with Ms. Sonia Sharma and Ms.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 .....

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ok, 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 were heard analogously and as the said issue is the only .....

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ull Bench thought it appropriate that the matter should be considered by a Larger Bench and, accordingly, the Larger Bench has been constituted and the matter has been placed before us for the aforesaid purpose. 3. Before we proceed to analyze and appreciate the ratio decidendi in New India Assurance Company Limited (supra), it is seemly to exposit the necessitous primary facts averred in the present writ petition. The petitioner, in invocation of the jurisdiction under Article 226 of the C .....

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o the order passed by the Assistant Commissioner of Customs ICD, Malanpur who had expressed the view that no drawback facility is admissible to the petitioner as it had, by way of procuring duty free inputs under Rule 19(2) of the Central Excise Rules, 2002, contravened clause (ii) of the second proviso to Rule 3(1) of the Central Excise Drawback Rules, 1995 and also condition No. 7(F) of the Notification No. 68/2007-Cus. (N.T.) and condition No. 8(F) of the Notification No. 103/2008-Cus. (N.T.) .....

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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 contr .....

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rticle 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, 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 on a H .....

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based on statutory enactment and cannot apply to writs issuable under Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories in relation to which the High Court exercises jurisdiction. 9. In Lt. Col. Khajoor Singh v. Union of India, AIR 1961 SC 532, a Division Bench of Jammu and Kashmir High Court had upheld the preliminary objections raised before it and had held that it had no jurisdictio .....

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s which have their location in Delhi and, therefore, the view was expressed in that manner. The majority posed two questions, namely, (i) whether the Government of India as such can be said to have a location in a particular place, that is, New Delhi, irrespective of the fact that its authority extends over all the States and its officers function throughout India; and (ii) whether there is any scope for introducing the concept of cause of action as the basis for exercise of jurisdiction under A .....

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clusion 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 terr .....

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orrection to the High Court over persons and authorities and these special powers have to be exercised within the limits set for them. These two limitations have already been indicated by us above and one of them is that the person or authority concerned must be within the territories over which the High Court exercises jurisdiction. Is it possible then to overlook this constitutional limitation and say that the High Court can issue a writ against a person or authority even though it may not be .....

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It seems to us that Art. 300 which is on the same line as S. 176 of the Government of India Act, 1935, dealt with suits as such and proceedings analogous to or consequent upon suits and has no reference to the extraordinary remedies provided by Art. 226 of the Constitution. The concept of cause of action cannot in our opinion be introduced in Art. 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 wri .....

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titution 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 territo .....

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nt or authority or the residence of such person is not within those territories. 14. From the aforesaid chronological narration of the growth of Article 226 of the Constitution, the concept of cause of action arising wholly or in part came into existence for the exercise of power under the said Article. 15. Regard being had to the aforesaid historical backdrop, we shall presently proceed to deal with the Full Bench decision in New India Assurance Company Limited (supra) to perceive how .....

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ave arisen within the territorial jurisdiction of this Court and merely because the order under challenge had been passed by the appellate authority located within the territorial jurisdiction, the same could not be sufficient enough for conferment of jurisdiction. The learned single Judge, to arrive at the said conclusion, had placed reliance on the decisions in Ambica Industries v. Commissioner of Central Excise, 2007 (213) E.L.T. 323 (S.C.), Bombay Snuff (P) Ltd. v. Union of India, 2006 (194) .....

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SC 1124, Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254 = 2004 (168) E.L.T. 3 (S.C.), Sri Nasiruddin v. State Transport Appellate Tribunal, (1975) 2 SCC 671 and Navinchandra N. Majithia v. State of Maharashtra, AIR 2000 SC 2966, the decision of the High Court of Bombay in Kishore Rungta and Ors. v. Punjab National Bank and Ors., 2003 (151) E.L.T. 502 (Bom.) and the decision of the High Court of Delhi in Indian Institute of Technology v. P.C. Jain and Ors., 45 (1991) DLT 42 a .....

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e 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 sugg .....

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as not assailed the same before any High Court. Thus, there is no possibility of conflicting judgments or confusion in the present case. Secondly, even if in a given case such a situation were to arise, the same is bound to be brought to the notice of the court and the likelihood of both courts proceeding with the writ petition and conflicting judgments is remote. In such a situation, following the principle in Section 10 of the Code of Civil Procedure, the subsequently filed petition may be sta .....

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of action has accrued within the jurisdiction of this Court or that the substantial cause of action has accrued within the jurisdiction of the High Court of Andhra Pradesh. In fact, the sole cause of action for the writ petition is the order of the appellate authority and which cause of action has accrued entirely within the jurisdiction of this Court and this Court would be failing in its duty/function if declined to entertain the writ petition on the ground of the contesting respondent being s .....

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le part of the cause of action has accrued within 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 s .....

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rity, 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 order of appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the petitioner is dominus litis to choose his forum, and that since the ori .....

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n, the plea that only an insignificant or miniscule part of the cause of action has accrued within the jurisdiction of the Court or that the substantial cause of action has accrued in another State is inconsequential. (ii) The sole cause of action emerges when an order by the appellate authority situated within the territorial jurisdiction of Delhi is passed and when the sole cause of action accrues entirely within the jurisdiction of this Court, declining to entertain the writ petition would am .....

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of the appellate authority/Tribunal which is situated in Delhi. (v) As the original order merges into the appellate order, the place where the appellate authority is located is also the forum conveniens. (vi) The remedy under Article 226 being discretionary, the Court may refuse to exercise jurisdiction only when jurisdiction has been invoked with mala fide intent. Be it noted, the Full Bench had also observed that as the appellate authority is situate at New Delhi, the Delhi High Court has the .....

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efer 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 th .....

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on 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… 19. In Kishore Rungta and Ors .....

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a (supra) and Sita Ram Singhania v. Bank of Tokyo-Mitsubishi Ltd. and Ors, AIR 2000 SC 2180 and came to opine thus : 16. Mr. Tulzapurkar lastly submitted that a part of the cause of action having arisen in Mumbai, this Court has jurisdiction to entertain the Petition in view of Article 226(2) of the Constitution. We are in agreement with Mr. Tulzapurkar. The 15th amendment to the Constitution which introduced clause 2 in Article 226 was intended to widen the ambit of the area for reaching t .....

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In this connection Mr. Tulzapurkar relied 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 jurisdi .....

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eferring 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 Properties, AIR 1985 SC 1289, Oil and Natural Gas Commission v. Utpal Kumar Basu and Others, (1994) 4 SCC 711, CBI, Anti-Corruption Branch v. Narayan Diwakar, (1999) 4 SCC 656, Union of India v. Adani Exports Ltd., (2002) 1 SCC 567 = 2001 (134) E.L.T. 596 (S.C.), Kusum Ingots & Alloys .....

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nstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The appellant Company filed a writ petition in the High Court of Delhi which was dismissed on the ground of lack of territorial jurisdiction. The Company approached this Court and contended that as the constitutionality of a parliamentary legislation was questioned, the High Court of Delhi had the requisite jurisdiction to entertain the writ petition. 35. Negativing the contention and upholding the order passed b .....

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l part of the cause of action. The fact which is neither material nor essential nor integral part of the cause of action would not constitute a part of cause of action within the meaning of Clause (2) of Article 226 of the Constitution. 36. In National Textile Corporation Ltd. v. Haribox Swalram, (2004) 9 SCC 786 : JT (2004) 4 SC 508, referring to earlier cases, this Court stated that: (SCC p. 797, para 12.1) 12.1 …the mere fact that the writ petitioner carries on business at Calcutt .....

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titioner 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 ha .....

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pined thus : 5. Clause (1) of Article 226 begins with a non-obstante clause-notwithstanding anything in Article 32 - and provides that every High Court shall have power throughout the territories in relation to which it exercises jurisdiction , to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clause (2) of Article .....

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ment of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at lea .....

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he defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth 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 enqui .....

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pra), 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 Article 226 of the Constitution of India but also to the facet of cause of action as stated in Chand Kour v. Partab Singh - ILR (1887-88) 15 IA 156, Utpal Kumar Basu and Others (supra .....

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while determining the said question. 21. A parliamentary legislation when 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 .....

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throughout the territory of India subject of course to the applicability of the Act. 23. Thereafter, in paragraphs 27 and 29, their Lordships stated thus : 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 petiti .....

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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 .....

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l 495, Bharat Coking Coal Limited v. Jharia Talkies & Cold Storage (P) Ltd., 1997 CWN 122, S.S. Jain & Co. v. Union of India, (1994) 1 CHN 445 and New Horizon Ltd. v. Union of India, AIR 1994 Del 126. [Emphasis supplied] 25. In Ambica Industries (supra), their Lordships have expressed thus : 40. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Pro .....

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eping in view the expression cause of action used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum conveniens may also have to be considered.                          [Emphasis added] 26. At this j .....

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to empower to court to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their 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 .....

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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 Wing rushed in and he was pulled out of the aircraft and taken to the office on the first floor of the airport. He .....

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subject matter of appeal by special leave before the Apex Court. In that context, their Lordships have held thus : 9. The first question that arises for consideration is whether the Andhra Pradesh High Court was justified in holding that as the seizure took place at Chennai (Tamil Nadu), the appellant could not maintain the writ petition before it. The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the H .....

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urity/intelligence officials at Hyderabad Airport (in Andhra Pradesh) who having inspected the cash carried by him, alerted their counterparts at Chennai Airport that the appellant was carrying a huge sum of money, and required to be intercepted and questioned. A part of the cause of action therefore clearly arose in Hyderabad. It is also to be noticed that the consequential income tax proceedings against him, which he challenged in the writ petition, were also initiated at Hyderabad. Therefore, .....

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ad. 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 th .....

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hips reproduced paragraphs 27 and 28 of the said decision and a passage from Adani Exports Ltd. (supra) and proceeded to state as follows : 28. We have referred to the scope of jurisdiction under Articles 226 and 227 of the Constitution only to highlight that the High Courts should not ordinarily interfere with an order taking cognisance passed by a competent court of law except in a proper case. Furthermore only such High Court within whose jurisdiction the order of the subordinate court h .....

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            [Underlining is by us] 30. From the aforesaid pronouncements, the concept of forum conveniens gains signification. In Black s Law Dictionary, forum conveniens has been defined as follows : The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses. 31. The concept of forum conveniens fundamentally means that it is obligatory on the part of the .....

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d Ambica Industries (supra) about the applicability of the doctrine of forum conveniens while opining that arising of a part of cause of action would entitle the High Court to entertain the writ petition as maintainable. 32. 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 .....

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esaid 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 failur .....

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