TMI Blog2015 (3) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has taken delivery of the said consignment at Delhi and transported it to Uttarakhand. As such, no part of the cause of action either wholly or in part has arisen within the territorial jurisdiction of this Court so as to enable this Court to examine as to whether the petitioner s alleged legal right had been infringed - the irresistible conclusion that will have to be drawn by this Court is, this Court has no territorial jurisdiction to examine the writ petition on merits since no part of cause of action has arisen within the territorial jurisdiction of this Court. Writ petition is hereby dismissed as not maintainable before this Court. - Writ Petition No. 31835 of 2013 (T-TAR) - - - Dated:- 18-3-2015 - Aravind Kumar, J. Shri S.S. Naganand, Senior Counsel a/w Kiran S. Javali, Advocate, for the Petitioner. Shri N.R. Bhaskar, Standing Counsel, for the Respondent. ORDER Heard Sri S.S. Naganand, learned Senior Counsel appearing on behalf of Sri Kiran S. Javali for petitioner and Sri N.R. Bhaskar, learned panel counsel appearing for respondents. 2. Division Bench of this Court in W.A. No. 5797/2013 by order dated 3-9-2014 set aside the order passed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner has prayed for petition being heard on merits. 5. It is the contention of Sri Naganand, learned Senior Counsel appearing for petitioner that in the writ petition quashing of communication dated 18-6-2013 (Annexure-G) has been sought and also to declare Condition No. 34(b) and 34(c) of the Notification No. 12/2012, dated 17-3-2012 (Annexure A) has stood complied by virtue of the Packing List and Assay Certificate of the Perth Mint and said notification having been issued by Government of India, Ministry of Finance and based on said notification, impugned notice has been issued to petitioner by the Deputy Commissioner of Customs and when the Deputy Commissioner of Customs is subordinate to the Commissioner of Customs, petitioner would be entitled to challenge said notice before this Court and present writ petition as such would be maintainable before this Court since the very issue regarding correctness of notification is under challenge. Hence, he submits that present writ petition is maintainable before this Court. He would also submit that Registered office of the petitioner-company is at Bangalore and impugned communication has been issued by second respondent to the add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of duty for import of foreign branded pure refined gold bars at that point of time was 4% and the exempted duty was as per Sl. No. 318 which was for import of raw gold was 2% and an additional 1% of excise duty payable on such exemption which was in all 3% and thereby 1% less than the normal rate of duty. It is also contended that such discount of 1% duty was available primarily to encourage the import of raw gold in place of foreign branded refined gold bars since import of raw gold would save substantial foreign exchange for the country and would also help in establishing gold refining industry in India which would help in increasing industrial activity in the country and generate additional employment and resolve the country s dependability on foreign imported Gold Bars. 9. It was further contended that on importation of Gold Dore Bars at Delhi Port it came to be cleared for home consumption on being satisfied that petitioner had fulfilled all the requirements listed under Condition Nos. 5 and 34 of Notification No. 12/2012. It is contended that subsequent to exchange of correspondence, impugned communication dated 18-6-2013 (Annexure-E) came to be issued calling upon peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising 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. 12. Perusal of sub-article (1) of Article 226 would indicate that every High Court will have power throughout the territories in relation to which it exercises jurisdiction namely, to issue any person or authority, including in appropriate cases any Government within those territories directions, orders or writs for the enforcement of any rights conferred by Part III and for any other purpose. Under sub-article (2) of Article 226, High Court can exercise its power conferred by clause (1) if it is shown that cause of action wholly or in part has arisen within the territory within which it exercises jurisdiction notwithstanding the seat such Government or authority or residence of such person is not within those territories. Thus, on a plain reading of the aforesaid two sub-articles of Article 226 of the Constitution, it is evident that High Court can exercise power to issue directions, orders or writs for the enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction in relation to the territories within which the cause of action arises wholly or in part, will have jurisdiction. This would mean that even if a small fraction of the cause of action (that bundle of facts which gives a petitioner, a right to sue) accrued within the territories of Andhra Pradesh, the High Court of that State will have jurisdiction. 14. The Hon ble Apex Court in Navinchandra N. Majithia v. State of Maharashtra and Others reported in (2000) 7 SCC 640 has held that High Court would have jurisdiction even if a part of the cause of action arises within the territorial limits of its jurisdiction even where seat of the authority is outside the territorial limits of the jurisdiction of that High Court. It has been held by Hon ble Apex Court as under : 37. The object of the amendment by inserting clause (2) in the article was to supersede the decision of the Supreme Court in Election Commission v. Saka Venkata Subba Rao [AIR 1953 SC 210] and to restore the view held by the High Courts in the decisions cited above. Thus the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maharashtra). Hon ble Apex Court in the case of Kusum Ingots Alloys Ltd. v. Union of India and Another reported in (2004) 6 SCC 254 = 2004 (168) E.L.T. 3 (S.C.) while examining the meaning of cause of action and its implication on right to sue has held to the following effect : 6. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily. Having said if there is no cause of action then writ petition will have to be rejected, the definition of sub-article (2) of Article 226 came to be examined and it came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 86 has held that cause of action as understood in civil proceedings means every fact if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. It has been held, if bundle of facts which taken with the law applicable to them, gives the plaintiff a right to relief against the defendant then it can be held, as cause of action having arisen within territorial jurisdiction of said Court. However, if facts pleaded are such that which have no nexus to the lis involved in the case and such facts would not give rise for the cause of action then it does not confer territorial jurisdiction over such Court. It has been held by the Hon ble Apex Court in National Textile Corporation s case while explaining as to what constitutes cause of action as under : 10. Under Clause (2) of Article 226 of the Constitution, the High Court is empowered to issue writs, orders or directions to any Government, authority or person 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta by itself would not give rise for the Calcutta High Court to clutch jurisdiction under Article 226(1) of the Constitution. Inasmuch as, facts as obtained in the said case indicated that Textile Mills was situated at Bombay and supply of cloth was made by them in its factory at Bombay and money was paid at Bombay which constituted substantial part of cause of action to sue at Bombay and not at Calcutta. Accordingly, on facts, it came to be held by Hon ble Apex Court that no part of cause of action had arisen at Calcutta or merely because contract got concluded at Calcutta it would not give rise for cause of action at Calcutta and as such, it was held that Calcutta High Court did not have jurisdiction. 19. Hon ble Apex Court in the case of Sri Nasiruddin v. State Transport Appellate Tribunal reported in (1975) 2 SCC 671 has explained the expression cause of action and the manner in which expression cause of action is to be understood in application to Article 226 of the Constitution. It has been held by Hon ble Apex Court as under : 37. The conclusion as well as the reasoning of the High Court is incorrect. It is unsound because the expression cause of action in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in cause of action . It has to be left to be determined in each individual case as to where the cause of action arises. The Chief Justice of the High court has not been conferred with the legislative competence to define cause of action or to declare where it would be deemed to have arisen so as to lay down artificial or deeming test for determining territorial jurisdiction over an individual case or class of cases. The permanent Bench at Jaipur has been established by the Presidential Order issued under sub-section (2) of Section 51 of the Act. The territorial jurisdiction of the permanent Bench at Jaipur is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not even remotely suggest about any averment having been made in the petition with regard to territorial jurisdiction of this Court except stating in Paragraph 22 to the following effect : 22. The petitioner having no method to produce the Packing List of the Mining Company and having no other alternative remedy the petitioner has approached this Hon ble Court under Articles 226 and 227 of the Constitution of India on the following grounds amongst others which are urged without prejudice to each other. 24. To the pointed question by Court to the learned Sr. Counsel appearing for petitioner as to whether any specific averment has been made in the writ petition to demonstrate that petitioner having averred in the writ petition with regard to territorial jurisdiction, he has fairly answered the same in the negative. However, he was quick in contending that said issue does not arise at all and only after statement of objections was filed by the respondent contending inter alia that this Court lacks jurisdiction, rejoinder came to be filed by petitioner and in the rejoinder, it has been specifically contended that al Paragraph 9 as to how this writ petition is maintainable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VIII(12)/I G/Gr. III/Ch-71/Misc. 34/2011/1565/ 18/6/13 (Annexure G ) as illegal and void ab initio. (b) Issue a writ of mandamus or any other appropriate Writ, Order or Direction declaring that condition No. 34(b) and 34(c) of Notification No. 12/2012-Customs, dated 17-3-2012 (Annexure A ) has stood complied by virtue of Packing List and Assay Certificate of the Perth Mint. Perusal of the communication dated 18-6-2013 (Annexure-G) would indicate that it has been issued by the Office of Commissioner of Customs (Import General), New Customs House, New Delhi-110 037 calling upon the petitioner to submit packing list within a week from the mining company in respect of all past imports of Gold Dore Bars namely, which petitioner had imported from Perth Mint, Australia. Reason for issuance of impugned communication to the petitioner by first respondent was on account of 56 consignments of Gold Dore Bars imported by the petitioner during the period 17-7-2012 to 21-2-2013. It is not in dispute that Consignor of said consignment is International Commodities Inc. Perth Mint, Australia as evidenced from Annexure-L. Consignor has sent the consignment to the Consignee, i.e., to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal right of the petitioner within the territorial jurisdiction of this Court. Hon ble Apex Court under identical circumstances while examining as to whether receipt of communication or location of the office would cloth such High Court the jurisdiction to examine the writ petition on merits has held in the ease of Oil and Natural Gas Commission v. Utpal Kumar Basu and Others reported in (1994) 4 SCC 711 that mere location of the Registered office or receipt of communication would not give rise for cause of action. Hence, this Court is of the considered view that present writ petition before this Court would not be maintainable since no part of the cause of action has arisen within the territorial jurisdiction of this Court. 27. As already noticed herein above, the consignment belonging to the petitioner has been received at Delhi from Australia and on same being cleared at Air Cargo Complex, Delhi petitioner has taken delivery of the said consignment at Delhi and transported it to Uttarakhand. As such, no part of the cause of action either wholly or in part has arisen within the territorial jurisdiction of this Court so as to enable this Court to examine as to whether the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
