Case Law Details
Shrigovind Niranjan And Others Vs State of Madhya Pradesh And Others (Madhya Pradesh High Court)
The Madhya Pradesh High Court rules on territorial jurisdiction for writ petitions, emphasizing the petitioner’s right to choose forum when concurrent jurisdiction exists and clarifying the application of forum conveniens based on where the cause of action arises.
Madhya Pradesh High Court recently addressed the issue of territorial jurisdiction for writ petitions in two appeals, Shrigovind Niranjan And Others Vs State of Madhya Pradesh And Others. The appeals, arising from separate proceedings but raising identical legal questions, challenged orders from two single-judge benches that dismissed petitions based on the principle of forum conveniens. Both single judges had redirected the petitioners to the Gwalior Bench of the High Court, asserting that it would be a more appropriate forum, despite the impugned orders originating from Bhopal, which falls under the Jabalpur Bench’s territorial jurisdiction.
The core of the dispute revolved around three key questions: whether a writ petition is maintainable where the impugned order was issued, even if it affects an individual outside that bench’s territorial jurisdiction; whether a petition can be filed solely based on the authority’s seat when the cause of action arises elsewhere; and whose convenience—the petitioner’s or the state’s—should dictate the application of forum conveniens.
Understanding Article 226 and its Evolution
The High Court’s analysis delved into Article 226 of the Constitution of India, which outlines the powers of High Courts to issue writs. Article 226(1) grants jurisdiction based on the location of the person, authority, or government against whom the writ is sought. Conversely, Article 226(2), introduced through the 15th Constitutional Amendment in 1963, extends this jurisdiction to High Courts where the “cause of action, wholly or in part, arises,” irrespective of the authority’s seat. This amendment broadened the scope, allowing a High Court to exercise jurisdiction if even a fraction of the cause of action occurs within its territory.
Judicial Precedents and Their Application
The single-judge benches had relied on Supreme Court judgments in Kusum Ingots and Alloys Ltd. Vs. Union of India and Another (2004) and Ambica Industries Vs. Commissioner of Central Excise (2007), as well as State of Goa Vs. Summit Online Trade Solution Pvt. Ltd. (2023), to support their application of forum conveniens. The Supreme Court in Kusum Ingots stated that while a “small fraction of cause of action” within a court’s jurisdiction may grant it authority, the court may still decline to exercise it by invoking forum conveniens in appropriate cases. However, the Supreme Court also clarified that if a part of the cause of action arises in the jurisdiction of more than one High Court, “it will be for the petitioner to choose his forum.”
The High Court observed that the single judges had potentially misinterpreted the Kusum Ingots ruling by isolating certain paragraphs. They failed to fully consider the context, particularly the Supreme Court’s emphasis on the petitioner’s right to choose their forum when concurrent jurisdiction exists. The High Court further highlighted the distinction drawn in Kusum Ingots between challenging the constitutionality of a legislation (where the seat of Parliament or a legislative body doesn’t automatically confer jurisdiction) and challenging an executive order. In the latter, the place where the executive order is passed does constitute a part of the cause of action.
Specifically, the Court referenced Nasiruddin v. STAT (1975), which established that if an appellate or revisional order is passed at a particular location, it can give rise to a cause of action at that place, even if the original order was issued elsewhere. This reinforces the idea of the litigant’s right to choose their forum when a part of the cause of action arises in multiple locations. The Court also noted that Lt. Col. Khajoor Singh v. Union of India (1961), which limited jurisdiction based on the authority’s location, was rendered before the 15th Amendment and is therefore no longer applicable in situations where a part of the cause of action arises outside the authority’s seat.
Misapplication of Forum Conveniens
In the present appeals, the petitioners had filed their petitions before the Principal Bench at Jabalpur because the impugned orders—one relating to pay scale and the other to a major penalty—were issued by state authorities (Upper Secretary, Department of Welfare of Scheduled Castes and Scheduled Tribes; Commissioner, Health Services, and the State Government) located in Bhopal, which falls within the territorial jurisdiction of the Principal Bench at Jabalpur. The Court concluded that “not only a little part but a substantial cause of action has arisen at Bhopal, within the territorial jurisdiction of the Principal Bench at Jabalpur.”
The High Court found that the single judges had misapplied the doctrine of forum conveniens. When two High Courts possess concurrent jurisdiction, the petitioner has the right to choose their forum. Furthermore, the State Government, whose principal seat is within the territorial jurisdiction of the Jabalpur Bench, cannot legitimately claim forum non conveniens, arguing it would be inconvenient to defend the petition at its own seat. The Court indicated that the single judges’ decisions were based on a flawed understanding of these principles.
FULL TEXT OF THE JUDGMENT/ORDER OF MADHYA PRADESH HIGH COURT
1. Both these Writ Appeals, though arise out of separate proceedings and separate orders passed by two learned Single Judges of this Court, raise identical questions of law and as such are being taken up for consideration and disposal together.
2. Writ Appeal No.2228/2023 arises out of order dated 18.10.2023 in Writ Petition No.6010/2020 which has been dismissed applying the principles of Forum Conveniens and holding that the Principal Bench, Jabalpur, High Court of Madhya Pradesh, would not have the territorial jurisdiction to entertain the Petitions and liberty was granted to appellant/petitioner to approach 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 impugns order dated 29.05.2024, whereby petitioner has been visited with major penalty of reduction to the lowest level of Pay-scale. Subsequently, Show Cause Notice dated 25.06.2024 was issued, in exercise of powers of review under Rule 29(1) of the Madhya Pradesh Civil Services (Classification, Control and Appeal), Rules, 1966 and appellant was directed to show-cause as to why penalty of dismissal be not imposed. Impugned order dated 29.05.2024 has been issued by the Commissioner, Health Services at Bhopal and the show-cause notice proposing to impose higher penalty was issued by the State Government at Bhopal. Petitioner by the time of alleged misconduct was posted at Datia within territorial jurisdiction of the Bench at Gwalior and at the time of fling of the petition also, petitioner was posted at Datia.
7. In both the Writ Petitions, both the learned Single Judges have held that the petitions would not lie before the Bench at Jabalpur and petitioners have been relegated to approach the Bench at Gwalior. Both the learned Single Judges have applied the principles of Forum Conveniens to hold that Gwalior Bench would be a more convenient Forum for entertaining the Writ Petitions.
8. The questions that arise for consideration in the subject Appeals are as under:
(i) Whether a Writ Petition would be maintainable before the Bench within whose territorial jurisdiction the order impugned in the Writ Petition had been issued, even though the order affects an employee who is posted in the territories outside the territorial jurisdiction of the said Bench?
(ii) whether a Writ Petition can be filed based solely on the seat of the authority in cases where the cause of action or part thereof arises outside the territorial jurisdiction of the seat of the authority?
(iii) Whether the principle of Forum Conveniens has to be tested from the stand point of the petitioner or the State Government while entertaining a Writ Petition?
9. Reference may be had to the provisions of Article 226 of the Constitution of India. Article 226 of the Constitution of India reads as under:
“226 (1). Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercise 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) 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 of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this Article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.”
10. Article 226 (1) of the Constitution of India empowers the High Court 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 enforcement of any rights conferred by Part-III or for any other purpose. Under Article 226 (1) of the Constitution of India , the High Court has power to issue appropriate Writ to any person or authority or Government, which has its seat within its territorial jurisdiction even though the action of the authority may be in relation to a person or thing situated outside the territory to which the High Court exercises jurisdiction.
11. Article 226 (2) of the Constitution of India empowers the High Court to exercise jurisdiction in relation to territories within which the cause of action wholly or in part arises, notwithstanding that the seats of such Government or authority is not within its territory. Article 226 (2) of the Constitution of India empowers the High Court to exercise jurisdiction in cases where cause of action or part of cause of action has arisen within the territories in relation to which said High Court exercises its jurisdiction.
12. Article 226 (1) of the Constitution of India confers jurisdiction on the High Court based on the seat of the person, Authority or Government and Article 226 (2) of the Constitution of India confers jurisdiction based on cause of action. If the seat of the person, Authority or Government is within the territory on which the High Court exercises jurisdiction, said High Court would be empowered, under Article 226 (1) of the Constitution of India, 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 ofIndia 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 jurisdiction by applying the principles of Forum Conveniens. Learned Single Judge further relied on the decision of the Supreme Court in State of Goa Vs. Summit Online Trade Solution Pvt. Ltd. 2023 LiveLaw SC 183 : {(2023) 7 SCC 791}.
14. Learned Single Judge further held that petitioner was residing in territory over which the Bench at Gwalior exercises jurisdiction and applying the principles of Forum Conveniens, Writ Petition was declined to be entertained and liberty was granted to the appellant/ petitioner to approach the Gwalior Bench.
15. Learned Single Judge by order dated 24.07.2024 passed in Writ Petition No.18824/2024 (Writ Appeal No.1804/2024), noticed that the appellant had approached the Principal Bench at Jabalpur on the ground that the impugned orders were issued from Bhopal falling within the territorial jurisdiction of the Principal Seat at Jabalpur. Learned Single Judge referred to the Presidential notifications for constitution of the Permanent Benches at Gwalior and Indore and relied upon the decision of the Full Bench of this Court in P. Govil Vs. Jawahar Lal Nehru Krishi Vishwa Vidhyalay Jabalpur and Another, 1987 MPLJ 396 : {1987 SCC OnLine MP 41} to hold that though small part of the cause of action had arisen at Bhopal because the seat of the State Government was located at Bhopal, but as appellant was posted at Datia and the alleged misconduct also related to the duties assigned to her while she was posted at Datia within the territorial jurisdiction of Gwalior Bench and the consequences of all the orders were falling at Datia, the cause of action had arisen within the territorial jurisdiction at Gwalior Bench.
16. Learned Single Judge further held that best interest and convenience of all the parties and witnesses has to be seen and the Court is obliged to ensure convenience of all the parties before it and while striking balance of convenience and may decline the exercise jurisdiction though part of cause of action had arisen within the territorial jurisdiction of that Court. Reliance was once again placed on the judgment of the Supreme Court in Kusum Ingots and Alloys Ltd. (supra). Learned Single Judge declined to entertain the Writ Petition further placing reliance on Rule IV of the High Court of Madhya Pradesh Rules, 2008 and applying the principles of Forum Conveniens.
17. Rules IV of the High Court of Madhya Pradesh Rules, reads 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 28thof November, 1968 and 23rd ofJune 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 district shall be heard at Jabalpur or at Indore or Gwalior as the case may be.”
18. Rule IV of the High Court of Madhya Pradesh Rules does not throw much light on the controversy as there is no dispute with regard to the place where the Appellants were posted when the orders impugned were passed and there is also no controversy as to within which territory said places are situated. The controversy is with regard to jurisdiction vis a vis cause of action and the seat of the person, authority or the government.
19. Since reliance has been placed by both the learned Single Judges on the judgement of the Supreme Court in Kusum Ingots and Alloys Limited (supra) reference maybe had to the said judgement.
20. In Kusum Ingots and Alloys Ltd. (supra), the Supreme Court held as under:
“10. Keeping in view the expressions used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter.
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12. This Court in Oil & Natural Gas Commission v. Utpal Kumar Basu [(1994) 4 SCC 711] held that the question as to whether the Court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial.
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14. In State ofRajasthan v. Swaika Properties [(1985) 3 SCC 217] this Court opined that mere service of a notice would not give rise to any cause of action unless service of notice was an integral part of the cause of action. The said decision has also been noticed in Oil and Natural Gas Commission [(1994) 4 SCC 711] . This Court held : (SCC p. 223, para 8)
“The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action.”
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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. Ifpassing 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 a vacuum.
22. The Court must have the requisite territorial jurisdiction. An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.
Situs of office of the respondents — whether relevant
23. 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] .)
24. Learned counsel for the appellant in support of his argument would contend that the situs offraming law or rule would give jurisdiction to the Delhi High Court and in support of the said contention relied upon the decisions of this Court in Nasiruddin v. STAT [(1975) 2 SCC 671 : AIR 1976 SC 331] and U.P. Rashtriya Chini Mill Adhikari Parishad v. State of U.P. [(1995) 4 SCC 738] So far as the decision of this Court in Nasiruddin v. STAT [(1975) 2 SCC 671 : AIR 1976 SC 331] is concerned, it is not an authority for the proposition that the situs of legislature of a State or the authority in power to make subordinate legislation or issue a notification would confer power or jurisdiction on the High Court or a Bench of the High Court to entertain a petition under Article 226 of the Constitution. In fact this Court while construing the provisions of the United Provinces High Courts (Amalgamation) Order, 1948 stated the law thus : (SCC p. 683, para 37)
“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 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 the original order was in favour of the person applying for a writ. In such case an adverse appellate order might be the cause of action. The expression ‘cause of action’ is well known. If the cause 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 place from where an appellate order or a revisional order is passed may give rise to a part of cause of action although the original order was at a place outside the said area. 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.
26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad [(1995) 4 SCC 738] that the situs of issue of an order or notification by the Government would come within the meaning of the expression “cases arising” in clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by Parliament or the legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instructions issued in this behalf shall also come within the purview thereof. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.
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 petition would be maintainable at both the places. In other words, 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.
28. Lt. Col. Khajoor Singh v. Union of India [AIR 1961 SC 532 : (1961) 2 SCR 828] whereupon the learned counsel appearing on behalf of 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 some order of the Government of India as such, and that may be a reason for making a suitable constitutional amendment in Article 226. But the argument of inconvenience, in our opinion, cannot affect the plain language of Article 226, nor can the concept of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it.”
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 [AIR 1961 SC 532 : (1961) 2 SCR 828] has, thus, no application.
30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. [See Bhagat Singh Bugga v. Dewan Jagbir Sawhney [AIR 1941 Cal 670 : ILR (1941) 1 Cal 490] , Madanlal Jalan v. Madanlal [(1945) 49 CWN 357 : AIR 1949 Cal 495] , Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd. [1997 CWN 122] , S.S. Jain & Co. v. Union of India [(1994) 1 CHN 445] and New Horizons Ltd. v. Union ofIndia [AIR 1994 Del 126] .]
21. In Kusum Ingots and Alloys Ltd. (supra), the Supreme Court held that in view of the expressions used in Article 226 (2) of the Constitution of India, even if a small fraction of cause of action accrues within the jurisdiction of the Court, that Court will have jurisdiction. The question as to whether the Court has a territorial jurisdiction to entertain a writ petition, has to be decided based on the averments made in the petition. It further held that mere service of a notice would not give rise to any cause of action unless service of notice was an integral part of the cause of action.
22. In Kusum Ingots and Alloys Ltd. (supra) challenge was laid before the Delhi High Court to the vires of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Only ground for approaching the Delhi High Court was that constitutional validity of a Parliamentary Act was in question and 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 constitutionality of a Parliamentary Act shall not be maintainable in the High Court ofDelhi only because the seat of the Union ofIndia is in Delhi.”
26. The Supreme Court further held that a legislation is not confined to a statute enacted by Parliament or the legislature of a State, which would include delegated legislation, subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In cases where the field was not covered by any statutory rule, executive instructions issued in this behalf would also come within the purview thereof.
27. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.
28. The Supreme Court however clarified that “when an order, 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 petition would be maintainable at both the places. Order of the appellate authority constitutes a part of cause of action and 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.”
29. Both the learned Single judges have based their reasoning on the observation of the Supreme Court on paragraph 30 of Kusum Ingots and Alloys Ltd. (supra) (@ page 264) wherein the Supreme Court has held that “even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine offorum conveniens.”
30. Both the learned single Judges have read the observation in isolation 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 such person is not within those territories”. Thus, the concept of cause of action, arising wholly or in part, was introduced in Article 226 of the Constitution of India. Said Clause was later renumbered as Article 226 (2).
32. In these cases, Petitioners have not filed the Petitions before the Bench at Jabalpur solely based on the fact that the statute or rule has been framed by the legislative assembly at Bhopal. Said Petitions have been filed at Jabalpur as the order treating the Appellant as Shiksha Karmi was issued by the Upper Secretary, Government of Madhya Pradesh, Department of Welfare of Scheduled Castes and Scheduled Tribes, Bhopal. (W.P.No. 6010/2020) and the order imposing penalty and the revisional order/show cause notice has been issued by the Commissioner, Health Services at Bhopal and the State Government at Bhopal. (W.P. No. 18824/2024)
33. Not only a little part but a substantial cause of action has arisen at Bhopal, within the territorial jurisdiction of the Principal Bench at Jabalpur.
34. We may note, the learned Single judges have also misapplied the concept offorum conveniens. As has been held in Kusum Ingots and Alloys Ltd. (supra), if two High Courts have concurrent jurisdiction, Petitioner has the choice of forum. Further, the State cannot take a plea of forum non conveniens particularly when the principal seat of the State from where the impugned orders are issued is within the territorial jurisdiction of the Bench at Jabalpur. State cannot be permitted to contend that it would not be in a position to defend the Petition at a place where its seat is situated. Learned Single judge has clearly misapplied the principle of forum conveniens and erroneously held that the best interest and convenience of all the parties and witnesses has to be seen and the Court is obliged to ensure convenience of all the parties before it and while striking balance of convenience. If two High Courts/Benches have concurrent jurisdiction to entertain a Writ Petition, it would be open to the Petitioner to chose the forum that is more convenient to him.
35. Reliance placed by learned Single Judge on the judgment of the Supreme Court in Ambica Industries (supra) is erroneous. In Ambica Industries (supra) the Supreme Court was determining the question of jurisdiction of the High Court to entertain an appeal under section 35-G(1) of the Central Excise Act 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 in more than one State. In such a situation the High Court situated in the State where the first court is located should be considered to be the appropriate Appellate Authority. It was in this context that the Supreme Court held that the doctrine of dominus litis or doctrine of situs of the Appellate Tribunal do not go together. Dominus litis indicates that the suitor has more than one option, whereas the situs of an Appellate Tribunal refers to only one High Court wherein the appeal can be preferred. The Supreme Court held that the situs of a tribunal may vary from time to time. It could be Delhi or some other place. Determination of the jurisdiction of a High Court on the touchstone of Sections 35-G and 35-H of the Act, in our opinion, should be considered only on the basis of statutory provisions and not anything else. Further, it is in this context that the Supreme Court held that in view of 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. Learned Single Judges have thus erred in applying the doctrine of forum conveniens to the facts of the present case.
37. Further, reliance placed by learned single judge on the decision of the Supreme Court in Summit Online Trade Solutions (P) Ltd (supra) is also erroneous. The Petitioner therein had filed a petition in the High Court of Sikkim challenging a notification issued by the Government of Goa on the ground that the cause of action had arisen in Sikkim as the Petitioner had its office in Sikkim. The Supreme Court was considering the provisions of Article 226(2) of the Constitution of India with regard to cause of action having accrued in Sikkim. The Supreme Court noticed that tax had been levied by the Government of Goa in respect of a business that the petitioner company was carrying on within the territory of Goa and said tax was not payable by the petitioner company in respect of carrying on of any business in the territory of Sikkim. Merely because Petitioner Company had its office in Gangtok, Sikkim, it did not form an integral part of cause of action authorizing the petitioner company to file a petition in Sikkim. It is in this context that the Supreme Court held “Assuming that a slender part of the cause of action did arise within the State of Sikkim, the concept offorum 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 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 at Jabalpur.
40. In P. Govil (supra) Article 226(1) of the Constitution of India was not in issue and further in these appeals, Petitions have not been filed relying upon the cause of action alone but on the issue of situs of the authority.
41. In the present case, both the Petitions are maintainable before the Principal Bench as the situs of the authority is at Bhopal within the territorial jurisdiction of the Principal Bench at Jabalpur, thus satisfying the requirement of Article 226(1) of the Constitution of India.
42. Further, in Writ Petition No.6010/2020, petitioner has impugned an order dated 03.02.2020 issued by the Upper Secretary, Government of Madhya Pradesh, Department of Welfare of Scheduled Castes and Scheduled Tribes, Bhopal and in Writ Petition No.18824/2024 petitioner has impugned order dated 29.05.2024 issued by the Commissioner, Health Services at Bhopal and the show-cause notice dated 25.06.2024 issued by the State Government at Bhopal. Since the action impugned has been taken by the respondents at Bhopal, substantial cause of action has arisen within the territorial jurisdiction of the Principal Bench at Jabalpur. Clearly the requirements of Article 226(2) of the Constitution of India are also satisfied.
43. The questions raised in these appeals are thus answered as follows:
(i) A Writ Petition would be maintainable before the Bench within whose territorial jurisdiction the order impugned in the Writ Petition has been issued, even though the order affects an employee who is posted in territories outside the territorial jurisdiction of the said Bench.
(ii) A Writ Petition can be filed based solely on the seat of the authority even in cases where the cause of action or part thereof arises outside the territorial jurisdiction of the seat of the authority.
(iii) The principle of Forum Conveniens has to be tested from the stand point of the petitioner who is the dominus litis and not at the conveniences of the State Government.
44. Clearly, both the learned Single Judges have erred in dismissing the petitions on the ground of forum conveniens. The Writ Petitions are maintainable before the Principal Bench at Jabalpur. Consequently, the impugned order dated 18.10.2023 in Writ Petition No.6010/2020 ( impugned in Writ Appeal No.2228/2023) and impugned order dated 24.07.2024 in Writ Petition No.18824/2024 (impugned in Writ Appeal No.1804/2024) are not sustainable and are liable to be set aside.
45. In view of the above, the appeals are allowed. The impugned order dated 18.10.2023 in Writ Petition No.6010/2020 and dated 24.07.2024 passed in Writ Petition No.18824/2024, applying the principles of forum conveniensand holding that the Writ Petitions are not maintainable before the Bench at Jabalpur and dismissing the same are set aside. The Writ Petitions are restored to their original number. Both the Writ Petitions are remitted to the learned single judges for reconsideration on merits. There shall be no orders as to costs.
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