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2016 DIGILAW 675 (MP)

Bal Mukund Singh Gautam v. Kuldeep Singh

2016-08-09

S.A.DHARMADHIKARI

body2016
ORDER 1. Parties heard on I.A. No. 971/2016, an application for dismissing the petition on the ground that this Bench has no territorial jurisdiction to entertain the writ petition as no cause of action has arisen within the territory of this Court. Before dealing with the preliminary objection, it would be necessary to place the relevant facts for deciding the controversy. 2. In the instant petition, the petitioner has challenged order dated 6.1.2016 passed by the Board of Revenue in Revision No.1479-PBR/15. The petitioner had filed Writ Petition No.5775/2015 before the Hon'ble High Court of Madhya Pradesh Bench at Indore in respect of order dated 29.7.2015 passed in the same Revision No.1479-PBR/15, by which the Indore Bench had remitted the matter back to the Board of Revenue with a direction that opportunity of hearing be granted to the petitioner and thereafter pass an order. It is apparent from the record that Bal Mukund Singh Gautam and respondent No.1 are resident of Dhar i.e. within territorial jurisdiction of Indore Bench. All the record pertaining to the dispute in question is within the territorial of Indore Bench, the only exception is that the Board of Revenue, Gwalior has passed the impugned order. 3. The counsel for the respondent submitted that the entire cause of action arose within the revenue districts which are situated in the territorial jurisdiction of the Indore Bench, therefore, there is no justification to entertain the petition at this Bench and the petitioner is free to approach the Indore Bench for redressal of his grievance. 4. The prayer is opposed by learned counsel for the petitioner contending that it is a settled legal position that the writ petition is maintainable before the Gwalior Bench, in view of the fact that the cause of action has arisen at Gwalior which is within the territorial jurisdiction of this Court. 5. 4. The prayer is opposed by learned counsel for the petitioner contending that it is a settled legal position that the writ petition is maintainable before the Gwalior Bench, in view of the fact that the cause of action has arisen at Gwalior which is within the territorial jurisdiction of this Court. 5. Counsel for the petitioner further contends that in light of Article 226(2) of the Constitution of India, which provides that the High Court shall exercise the jurisdiction under Article 226 (1) in relation to the territories within which the cause of action wholly or in part, arises, and looking to the fact that the petitioner was residing/posted at Gwalior when the impugned order was passed, therefore, part of cause of action has arisen at Gwalior and hence the Gwalior Bench of High Court M.P. shall have jurisdiction to entertain the writ petition under Article 226 (1) of the Constitution of India in accordance with the provisions of Article 226(2) of the Constitution of India. 6. Learned counsel for the petitioner relied on the judgment passed by this Court, reported in 2013(3) MPLJ 36 (Bhupendra v. Chhatar Singh and another). 7. I have heard the learned counsel for the parties. 8. In the Bhupendra (supra), it is seen that this Court dealt with the aspect of territorial Jurisdiction and cause of action. This Court opined that the Indore Bench of M.P. High Court is having jurisdiction and power in respect of cases arising in Revenue Districts including West Nimar (Khargone), therefore, even if the claim petition has been decided by the Labour Court, Khandwa, then too, this Court is having jurisdiction to entertain the appeal as the cause of action accrued to the appellant at Khargone in west Nimar. 9. The High Court of M.P. has framed Rules for regulating practice and Procedure of the High Court known as M.P. High Court Rules and Orders. (hereinafter referred to as Rules). Chapter III of the Rules deals with territorial Jurisdiction of the Principal Seat and the Benches. 9. The High Court of M.P. has framed Rules for regulating practice and Procedure of the High Court known as M.P. High Court Rules and Orders. (hereinafter referred to as Rules). Chapter III of the Rules deals with territorial Jurisdiction of the Principal Seat and the Benches. For the purpose of Convenience Rule 4 is reproduced below as under :- “Where a Bench, in the Principal Seat at Jabalpur or the Benches at Indore or Gwalior, on an objection taken by the Registry or otherwise, is of the opinion that a main case posted before it, had arisen from a revenue district falling within the territorial Jurisdiction of some other Bench or the Principal Seat, it may record its opinion and return the main case for its presentation at proper place for orders, after retaining one complete set of the main case.” 10. Therefore, if any of the Bench of the M.P. High Court is of the opinion that the case arises from the revenue district falling under the territorial Jurisdiction of some other Bench, the case may be returned back for presentation before the Bench which has jurisdiction to entertain the case. 11. The principle of “Forum Conveniens” was dealt with by Supreme Court in Kusum Ingots and Alloys Ltd. v. Union of India and another), reported in (2004)6 SCC 254 and in Alchemist Ltd. and another v. State Bank of Sikkim and others, reported in (2007)11 SCC 335 . A Special Bench (5 Judges) of Delhi High Court in AIR 2011 Del 174 (M/s. Sterling Agro Industries Ltd. v. Union of India and others) considered this principle and in the said judgment. Justice Dipak Misra (CJ. as His Lordship then was) opined 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. 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 principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens. The Full Bench in New India Assurance Co. Ltd. (supra), has not kept in view the concept of forum conveniens and has expressed the view that if the appellate authority who has passed the order is situated in Delhi, then the Delhi High Court should be treated as the forum conveniens. We are unable to subscribe to the said view. 33. In view of the aforesaid analysis, we are inclined to modify the findings and conclusions of the Full Bench in New India Assurance Company Limited (supra), and proceed to state our conclusion in seriatim as follows :- (a) The finding recorded by the Full Bench that the sole cause of action emerges at the place or location where the Tribunal/appellate authority/revisional authority is situate and the said High Court (i.e. Delhi High Court) cannot decline to entertain the writ petition as that would amount to failure of the duty of the Court cannot be accepted inasmuch as such a finding is totally based on the situs of the Tribunal/appellate authority/revisional authority totally ignoring the concept of forum conveniens. (b) Even if a miniscule part of cause of action arises within the jurisdiction of this Court, a writ petition would be maintainable before this Court, however, the cause of action has to be understood as per the ratio laid down in the case of Alchemist Ltd. (supra). (c) An order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated. Yet, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (d) The conclusion that where the appellate or revisional authority is located constitutes the place of forum conveniens as stated in absolute terms by the Full Bench is not correct as it will vary from case to case and depend upon 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 mala fide manner is too restricted/constructed as the exercise of power under Article 226 being discretionary cannot be limited or restricted to the ground of mala fide 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 Export 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. 12. In view of the aforesaid decision, it is clear that merely because order was passed by Board of Revenue at Gwalior, it cannot be said that it constitutes the place of “Forum Convenience”. Even, if it is assumed that part of cause of action has arisen while exercising of writ jurisdiction under Article 226 of Constitution of India, the High Court may apply doctrine of “Forum Convenience”. 13. Even, if it is assumed that part of cause of action has arisen while exercising of writ jurisdiction under Article 226 of Constitution of India, the High Court may apply doctrine of “Forum Convenience”. 13. In view of the facts and circumstances of the present case, it is clear that except impugned order dated 6.1.2016 Annexure P-9 passed by Board of Revenue, Gwalior, all the parties to the proceedings are situated within the territorial jurisdiction of Indore Bench, therefore, the Indore Bench shall be more convenient Forum for the parties. It will be convenient for the parties to put forth their case/defence by producing material which is available within the territorial jurisdiction of Indore Bench. In this view of the matter, I deem it proper to invoke the doctrine of “Forum Convenience”. Thus in exercise of discretionary jurisdiction under Article 226 of Constitution of India, it would be proper to direct the petitioner to approach before the Indore Bench. 14. Resultantly, IA No.971/2016 is allowed. The petition is dismissed for want of territorial jurisdiction. 15. Certified copy of impugned order annexed with the writ petition be returned to the petitioner and duly attested copy be kept in the record. Liberty is granted to the petitioner to file a fresh petition before the Indore Bench, if so advised. No order as to cost.