TMI Blog2022 (5) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... MS. JUSTICE NISHA M. THAKORE Appearance: MR TEJ SHAH (5743) for the Petitioner(s) No. 1 MR MR BHATT SENIOR COUNSEL WITH MR KARAN SANGHANI, ADVOCATE FOR M R BHATT CO.(5953) for the Respondent(s) No. 2 SERVED BY RPAD (N) for the Respondent(s) No. 1 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs; (a) A Writ of certiorari or any other writ, order or direction in the nature of certiorari quashing the impugned notice under section 148 of the Act dated 31-03-2021 issued by the respondent for the assessment year 2015-16; (b) A writ of certiorari or any other writ, order or direction in the nature of certiorari quashing the impugned order passed by the respondent herein dated 24-02-2022 rejecting the objections to assumption of jurisdiction under section 148 for the assessment year 2015-16; (c) Pending the admission and final disposal of this petition, restrain the respondent from proceeding with reassessment for the assessment year 2015-16 pursuant to the impugned notice dt. 31-03-2021 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court may entertain this writ application as some part of the cause of action could be said to have arose within the territorial jurisdiction of this High Court. ANALYSIS: 7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether we should entertain this writ application or relegate the writ applicant to file an appropriate writ application in the High Court of Orissa at Cuttack. 8. For answering the aforesaid question we would like to consider the provision of Article 226 of the Constitution as it stood prior to amendment. Originally, Article 226 of the Constitution read as under:- Article 226. Power of High Courts to issue certain writs. - (1) Notwithstanding anything in Article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 226 by the Constitution (15th) Amendment Act, 1963 and subsequently renumbered as Clause (2) by the Constitution (42nd) Amendment Act, 1976. The amended Clause (2) now reads as under:- 226. Power of the High Courts to issue certain writs - (1) Notwithstanding anything in Article 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 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) xxxxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquired. Under sub-section (5) of Section 52 of the Act the appellants were entitled to require the respondents to surrender or deliver possession of the lands acquired forthwith and upon their failure to do so, take immediate steps to secure such possession under sub-section (6) thereof. 8. The expression cause of action is tersely defined in Mulla's Code of Civil Procedure: The 'cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. 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. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to the following conclusion :- 6. 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 enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court. 15. In Kusum Ingots and Alloys Ltd. v. Union of India and another, (2004) 6 SCC 254 : (AIR 2004 SC 2321 : 2004 AIR SCW 2766), the Supreme Court elaborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application may 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 are such which have a nexus or relevance with the lis i.e. involved in the case. This Court observed: 17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the 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 the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ories 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. xxxxxx 11. Normally, we would have set aside the order and remitted the matter to the High Court for decision on merits. But from the persuasive submissions of the appellant, who appeared in person on various dates of hearing, two things stood out. Firstly, it was clear that the main object of the petition was to ensure that at least in future, passengers like him are not put to unnecessary harassment or undue hardship at the airports. He wants a direction for issuance of clear guidelines and instructions to the inspecting officers, and introduction of definite and efficient verification/investigation procedures. He wants changes in the present protocol where the officers are uncertain of what to do and seek instructions and indefinitely wait for clearances from higher-ups for each and every routine step, resulting in the detention of passengers for hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law Dictionary). In Stroud s Judicial Dictionary a cause of action is stated to be the entire set of facts that gives rise to an enforceable claim; In Words and Phrases (4th Edn.) the meaning attributed to the phrase cause of action in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. 22. In Halsbury s Laws of England (4th Edn.): Cause of action has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. Cause of action has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action. The collocation of the words cause of action, wholly or in part, arises seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gress into the jurisdiction of other High Courts merely on the ground that some insignificant event, trivial and unconnected with the cause of action has taken place within the territorial limits of the High Court to which the litigant approaches at his own choice or convenience. (Utpal Kumar Basil,; Navinchandra N. Majithia,). 25. The question whether cause of action , either in whole or in part has arisen within the territorial jurisdiction of a particular High Court must only be decided on the basis of the pleadings. In determining the objection regarding 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 enquiry as to the correctness or otherwise of the said facts. In other words, the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the writ petition. In the absence of an averment that the cause of action, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint lodged by JBHL or in the alternative to issue a writ of mandamus directing the State of Meghalaya to transfer the investigation being conducted by the officers of CID at Shillong to the Economic Offences Wing, General Branch of CID, Mumbai or any other investigating agency of the Mumbai Police, and (b) to issue a writ of prohibition or any other order or direction restraining the Special SP Police, CID, Shillong and/or any investigating agency of the Meghalaya Police from taking any further step in respect of the complaint lodged by JBHL with the police authorities at Shillong. 17. The said writ petition, as indicated hereinbefore, was dismissed by the Bombay High Court. This Court reversed the said order opining that the entire cause of action arose within the jurisdiction of the High Court of Bombay. Upon noticing some earlier decisions of this Court, it was observed: (SCC pp. 650-51, para 27) 27. Tested in the light of the principles laid down in the cases noted above the judgment of the High Court under challenge is unsustainable. The High Court failed to consider all the relevant facts necessary to arrive at a proper decision on the question of maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished that the earlier cause of action arose within the jurisdiction thereof. 27. A Five Judges Bench of the Delhi Court in Sterling Agro Industries Ltd. v. Union of India others [2011 (181) DLT 658] after considering a number of judgments including Ambica Industries Vs. Commissioner of Central Excise, [(2007) 6 SCC 769] has held as under:- 31. The concept of forum conveniens fundamentally means that it is obligatory on the part of the court to see the convenience of all the parties before it. The convenience in its ambit and sweep would include the existence of more appropriate forum, expenses involved, the law relating to the lis, verification of certain facts which are necessitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of. Be it noted, the Apex Court has clearly stated in the cases of Kusum Ingots (supra), Mosaraf Hossain Khan (supra) and 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 princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lis in question. (e) The finding that the court may refuse to exercise jurisdiction under Article 226 if only the jurisdiction is invoked in a malafide manner is too restricted / constricted as the exercise of power under Article 226 being discretionary cannot be limited or restricted to the ground of malafide alone. (f) While entertaining a 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 (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. 28. From the aforesaid, it is apparent that the concept of forum conveniens has been recognised by the Courts and cause of action for determining territorial jurisdiction has been held to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan was mala fide, the cause of action for filing a petition for quashing such FIR could arise only in Rajasthan and not at all places where parts of causes for filing the FIR may have arisen and where the FIR could have been lodged and investigated and where the ensuing criminal case could have been tried. In other words, the cause of action for filing a criminal complaint is different from the cause of action for quashing the complaint. The provisions of Sections 177 and 178 of Cr. P.C. therefore, could not and ought not to be applied for determining the issue of territorial jurisdiction of the High Court, which has to only consider the provisions of Article 226 of the Constitution. The arguments that the petitioners are unnecessarily and with ulterior motives dragged to face the authorities in Rajasthan and that it is a calculated move to choose the legal forum in Rajasthan cannot be accepted so as to usurp territorial jurisdiction and undermine the authority and jurisdiction of another High Court. 8.1 In another set of petitions calling for decision on the same issue, this Court has made following further observations : .........Besides that; the petitions have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioners shall have the jurisdiction. Therefore, it cannot be said that any integral part of the cause of action has arisen within the jurisdiction of this High Court. In my opinion, the judgments cited before me by Mr. Bajoria will not extend any help to him on this aspect. Furthermore, as the Supreme Court has held in State of Rajasthan v. Swaika Properties, , mere service of a notice at Calcutta does not constitute an integral part of the cause of action sufficient to acquire jurisdiction by this High Court and to entertain a petition under article 226 of the Constitution. Therefore, I do not have any hesitation to hold in this matter that the service of the notice under Section 148 of the said Act or under Section 163 of the said Act or the order communicated at Calcutta cannot give any jurisdiction to the petitioner to file this writ application in this High Court and I hold that service of the notice in the instant application cannot constitute any part of the cause of action to entertain this application. Accordingly, on that ground this application must be dismissed. 7. This was reiterated in a decision in case of CESC Ltd v. Dy. CIT [2004] 138 Taxman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue and possibly in relation to the same assessment year. Any appeal against the original assessment (if all done) for the assessment year 2011-12 would be governed by the law laid down by Telangana High Court. In the context of challenge to the notice of reassessment, this Court would apply the decisions of Bombay High Court. This would be wholly undesirable. 11. It is not unknown to law that in the context of territorial jurisdiction of the High Court, even if it is found that a small portion of the jurisdiction may have arisen within the High Court, the Court would on the principle of convenience may refuse to entertain the jurisdiction. In case of Serious Fraud Investigation Office v. Rahul Modi [2019] 103 taxmann.com 408/153/ SCL 474 (SC), the Supreme Court observed that in case of an offence which is triable by the Special Court established or designated for an area in which registered office of the company in relation to which the offence is committed, proper jurisdiction High Court would be the Court which has territorial jurisdiction over such Special Court. Though jurisdiction of the High Court where arrest and detention may have taken place, would not be compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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