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TMI Blog2012 (6) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... this court. The learned single judge relying on various judgments including Ambica Industries v. CCE [2007] 6 SCC 769 ; [2009] 20 VST 1, Bombay Snuff P. Ltd. v. Union of India [2005] 125 DLT 605, Rajkumar Shivhare v. Assistant Director of Enforcement [2008] 154 DLT 28 and West Coast Ingots P. Ltd.v. CCE [2007] 209 ELT 343 (Delhi) held that going by the strict provisions of clause (1) of article 226 pf the Constitution of India, this court had the jurisdiction to entertain the petition, however, the basic issue was whether this court really was the most appropriate forum to decide the present petition considering that the significant part of the cause of action imperative for the effective settlement of disputes had not arisen within its territorial jurisdiction. The learned single judge further held that any stand taken by him to the contrary would lie in the teeth of the consistent and settled approach adopted by the Supreme Court as well as this court in various judgments referred to above. When this matter came up for hearing before the Division Bench it was sought to be urged on behalf of the appellant that the view taken by the single Judge runs counter to the decisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by respondent No. 3 against the appellant. This claim, however, was repudiated by the appellant vide letters dated May 21, 2001 and June 1, 2001, inter alia, on the ground of non-compliance with the terms and conditions of the fire policies. An appeal was filed by respondent No. 3 against the repudiation of its claim before the Insurance Regulatory Development Authority (for short "the IRDA"), respondent No. 2 herein. Vide order dated July 31, 2002, two surveyors were appointed by the IRDA for survey and loss assessment as well as for re-examination of the question of damages claimed by respondent No. 3. Inasmuch as two surveyors appointed by the IRDA disagreed Vastly on the quantum of claim payable by the appellant; they filed their reports separately-one assessing the claim of respondent No. 3 at Rs. 21,01,00,000 and the other at Rs. 2,21,34,819. After reviewing the reports filed by the surveyors as well as after seeking the comments of the appellant and its surveyors on such review, the IRDA vide order dated June 2, 2003, directed the appellant to settle the claim at Rs. 2,21,34,819. Against the order passed by the IRDA, the appellant preferred an appeal before the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when an order is passed by a court or Tribunal, a part of the cause of action arises at that place and 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 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. He referred to the Bombay High Court judgment in the case of Kishore Rungta v. Punjab National Bank [2003] 151 ELT 502, wherein .following the Supreme Gourt decision in Collector of Customs v. East India Commercial Co. Ltd., AIR 1963 SC 1124, it was held that where the, appellate authority reverses the order under appeal or modifies that order or dismisses the appeal and thus confirms the order without any modification, in all such cases if the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In that case it was held that as the order of the Debts Recovery Tribunal, Jaipur merged in the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he context of article 226(2) and not article 226(1) as the question of exercise of jurisdiction under article 226(1) was not in issue in the case of Kusum Ingots and Alloys Ltd. v. Union of India [2004] 120 Comp Cas 672 ; [2004] 6 SCC 254. On the other hand, Mr. Yashobant Das, learned senior counsel appearing for the contesting respondent (respondent No. 3), submitted that as the substantial cause of action had arisen outside the territorial jurisdiction of the High Court of Delhi, the writ petition has rightly not been entertained. He submitted that the insurance cover was granted at Renigunta, Andhra Pradesh, the insurance claim was repudiated at Renigunta, Andhra Pradesh and the representation against repudiation was made to IRDA at Hyderabad, Andhra Pradesh, the parties are also located within Andhra Pradesh. He/therefore, urged that the Andhra Pradesh High Court in whose territory the original proceedings originated would have the jurisdiction to entertain the writ petition and not the Delhi High Court within whose territory the Appellate Authority passed the order. He referred to the decision of the Division Bench of this court in West Coast Ingots P. Ltd. v. CCE [2007] 209 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kalyan Banerjee [2008] 142 Comp Cas 731 ; [2008] 3 SCC 456, where the court held that if the entire cause of action has arisen outside the West Bengal State, mere location of the head office of the company in West Bengal would not confer jurisdiction upon, the Calcutta High Court to entertain a writ petition under article 226. He also referred to the decision of the Supreme Court in State of Rajasthan v. Swaika Properties [1985] 3 SCC 217, in which the court held that mere service of notice regarding acquisition of the land at the company's registered office within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. He also referred to a pre-Constitution judgment of the judicial committee in the well known case of Ryots of Garabandho v. Zamindar of Parlakimedi reported in (70 IA 129), in which it was held that the Madras High Court will not have jurisdiction merely because the Board of Revenue, which was the appellate authority in the matter of settlement of rents was located within the town of Madras and the order complained of was made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. The majority reaffirmed and approved the view taken by the court earlier in Election Commission of India v. Saka Venkata Rao, AIR 1953 SC 210, and held that the High Court of Jammu and Kashmir was right in not entertaining the writ petition filed by the petitioner on the ground that it had no territorial jurisdiction. Speaking for the majority, Sinha C. J. observed (AIR page 538, paragraph 13):- "13. It seems to us therefore that it is not permissible to read in article 226 the residence or location of the person affected by the order passed in order to determine the jurisdiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories and the residence or location of the person affected can have no relevance on the question of the High Court's jurisdiction." Article 226 was amended by the Constitution (Fifteenth Amendment) Act, 1963 and after clause (1), new clause (1A) was inserted which read as under:- "226. (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 territo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual of cause of action was made an additional ground to confer jurisdiction on a High Court under article 226 of the Constitution. 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. The Committee feel that the High Court within whose jurisdiction the cause of action arises in part only should also be vested with such jurisdiction.' The legislative history of the constitutional provisions, therefore, make it clear that after 1963, cause of action is relevant and germane and a writ petition can be instituted in a High Court within the territorial jurisdiction of which cause of action in whole or in part arises." Territorial jurisdiction:- The jurisdiction under article 226(1) and (2) of the Constitution of India is thus distinct and separate. Article 226(2) confers an additional power on every High Court to issue writs throughout its territory within which the cause of action wholl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders or writs for the enforcement 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 least a part of the cause of action had arisen within the territorial jurisdiction of that court. That is at best its case in the writ petition. It is well-settled that the expression 'cause of action' means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the court. In Chand Kour v. Partab Singh, ILR 1889 (16) Cal 98, 102, Lord Watson said:- ' . . . the cause of action'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 by the plaintiff. It refers' entirely to the ground set forth in the plaint as the cause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g challenged in the proceeding before the High Court. Another incidental question was whether the writ petition could have been entertained, heard and decided by the judges sitting at Lucknow. The Full Bench took a view that the Lucknow Bench had no jurisdiction to hear Writ Petition No. 750 of 1964. Allowing the appeal, a four judge bench of the Supreme Court held as follows (page 683):- "36. The meaning of the expression 'in respect of cases arising in such areas in Oudh' in the first proviso to paragraph 14 of the order was answered by the High Court that with regard to applications under article 226 the same will be 'a case arising within the areas in Oudh' only if the right of the petitioner in such an application arose first at a place within an area in Oudh. The implication according to the High Court is that if the right of the petitioner arose first at any place outside any area in Oudh and if the subsequent orders either in the revisional or appellate stage were passed by an authority within an area in Oudh then in such cases the. Lucknow Bench would not have any jurisdiction. The factor which weighed heavily with the High Court is that in most cases where an appeal or r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad." The judgment in Sri Nasiruddin v. State Transport Appellate Tribunal [1975] 2 SCC 671, clearly holds that the place where an order is passed by an appellate authority or revisional authority, as the case may be, the same would confer jurisdiction on the High Court under article 226 of the Constitution of India. Secondly, it has been held that even where a part of the cause of action arose, it would be open to the litigant, who is the dominuus litis to have his forum conveniens. This principle was affirmed by the Supreme Court in Kusum Ingots and Alloys Ltd. v. Union of India [2004] 120 Comp Cas 672 ; [2004] 6 SCC 254. But before we examine the decision in Kusum Ingots and Alloys Ltd. v. Union of India [2004] 120 Comp Cas 672; [2004] 6 SCC 254, we may refer to the Constitution Bench judgment in Collector of Customs v. East India Commercial Co. Ltd., AIR 1963 SC 1124 and the decisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , held as follows (page 1126):- "4. The question therefore turns on whether the order of the original authority becomes merged in the order of the Appellate Authority even where the Appellate Authority merely dismisses the appeal without any modification of the order of the original Authority, it is obvious that when the appeal is made, the Appellate Authority can do one of three things, namely,- (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm order without any modification. . . In all these three cases after the Appellate Authority has disposed of the appeal, the operative order is the order of the Appellate Authority whether it has reversed the original order or modified it or confirmed it ... We, therefore, feel that on principle when once an order of an original Authority is taken in appeal to the Appellate Authority which is located beyond the territorial jurisdiction of the High Court, it is the order of the latter Authority which is the operative order after the appeal is disposed of ; and as the High Court cannot issue a writ against the Appellate Authority for want of territorial jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i and the petitioner was working at Mumbai. The statutory appeal was rejected by the Appellate Authority at Delhi. A Division Bench of this Court, following the decision in Collector of Customs v. East India Commercial Co. Ltd., AIR 1963 SC 1124, held as follows:- "(18) The law is, therefore, well-settled that when the original order merges in the appellate order, the writ is maintainable in the High Court within whose jurisdiction the appellate authority is based. The High Court of Delhi did possess the jurisdiction to deal with the matter and there is no infirmity or allegation in the finding of the learned single judge on this ground. We affirm the same accordingly." In ORJ Electronics Oxides Ltd. v. CESTAT [2008] 225 ELT 202, the Madras High Court held that the order was passed by the Tribunal at Chennai and, therefore, the cause of action had arisen in Chennai and the writ petition could lie at the Principal Bench of the High Court at Chennai. The view of the single judge holding that the words "in respect of cases arising out of" would mean "pertaining to the district of" or "arising from" and, therefore, the writ petition could be entertained only at the Madurai Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmining the said question. A Parliamentary legislation when receives the assent of the President of India and 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 would not determine a constitutional question in vacuum . . . A writ petition, however, questioning the constitutionality of a Parliamentary Act shall not be maintainable in the High Court of Delhi only because the seat of the Union of India is in Delhi (see Abdul Kafi Khan v. Union of India, AIR 1979 Cal 354)." The court further observed that the decision in Sri Nasiruddin v. State Transport Appellate Tribunal [1975] 2 SCC 671, is an authority for the proposition that place from where, an appellate order or revisional order is passed gives rise to a part of the cause of actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne or the Other High Court, it will be for the petitioner to choose his forum. The same line of reasoning was adopted in an earlier judgment in Navinchandra N. Majithia v. State of Maharashtra [2000] 7 SCC 640, where Thomas J. in his concurring judgment observed (page 652):- "34. When the Constitution was framed, article 226, as it originally stood therein provided 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 . . .' Some of the decisions rendered by different High Courts during the earlier years of the post-Constitution period have given a wider perspective regarding the jurisdiction of the High Court and pointed out that a High Court can exercise powers under article 226 even in respect of Tribunals or authorities situated outside the territorial limits of its jurisdiction if such Tribunal or authority exercises powers in such a manner as to affect the fundamental rights of persons residing or carrying on business within the jurisdiction of such High Court (vide K. S. Ras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tories 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 amendment is thus aimed at widening the width of the area for reaching the writs issued by different High Courts." The learned single judge in deciding the issue of territorial jurisdiction has relied upon the decisions of this court in Rajkumar Shivhare v. Assistant Director of Enforcement [2008] 154 DLT 28 and West Coast Ingots P. Ltd. v. CCE [2007] 209 ELT 343 (Delhi), which in turn rely upon the judgment of the Supreme Court in Ambica Industries v. CCE [2007] 6 SCC 769 ; [2009] 20 VST 1 and a judgment of the Delhi High Court in Bombay Snuff P. Ltd. v. Union of India [2005] 125 DLT 605. The decision in Ambica Industries v. CCE [2007] 6 SCC 769; [2009] 20 VST 1 and Bombay Snuff P. Ltd. v. Union of India [2005] 125 DLT 605, dealt with statutory appeals and the law, as laid down therein, cannot be applied to a writ petition under article 226 of the Constitution of India. In Ambica Industries case [2007] 6 SCC 769; [2009] 20 VST 1, the issue was relating to determination of sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or courts or Tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High Court to take advantage of the law laid down by ft 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 parry aggrieved by the decision of the Tribunal." The court made it clear that in a case of this n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Counsel for the contesting respondent has not disputed the jurisdiction of this court ; his main contention is of possibility of conflict. We do not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Insurance Act, 1938, provides for appeal to the Central Government, seat whereof is admittedly within the jurisdiction of this court. Conclusion:- 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 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 the cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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