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2019 DIGILAW 1872 (ALL)

Neeraj Shankar Saxena v. Appellate Tribunal For Electricity Thru Registrar, New Delhi

2019-08-02

ANIL KUMAR, SAURABH LAVANIA

body2019
JUDGMENT : Saurabh Lavania, J. Heard Sri Hari Shankar Jain, learned counsel for the petitioners. 2. Learned counsel for the petitioners submits that the order dated 29.03.2019 passed in the Petition No. 1403 of 2019 [State Bank of India v. U.P. Power Corporation Limited] by the U.P. Electricity Regulatory Commission, at Lucknow, was challenged by M/s Renascent Power Venture Pvt. Ltd. by filing the Writ Petition No. 11778 (M/B) of 2019 [M/s Renascent Power Venture Pvt. Ltd. v. U.P. Electricity Regulatory Commission]. The aforesaid writ petition was disposed by means of the order dated 25.04.2019, relevant portion of which reads as under:- "It is a case where petitioner has agreed to induce finances for revival of the company which would be in the public interest apart from the State so as the State Bank of India. It is for the reason that petitioner proposed for revival of the respondent Company and settle the dues of the Bank. On the revival of the company involved in generation of electricity, respondents apart from others may be benefited. To save the aforesaid, parties may be be directed to maintain status quo till the appellate Tribunal for electricity passes an order on the application for interim relief. A further prayer is made to direct the appellate Tribunal for electricity to expedite the hearing of matter in case appeal is filed by the petitioner company. If such a direction is given, the petitioner would approach the Appellate Tribunal for electricity under Section 111 of the Act, 2003." 3. Learned counsel for the petitioners further submits that in pursuance to the said direction, an appeal No. 183 of 2019 was filed by M/s Renascent Power Venture Pvt. Ltd. before the Appellate Tribunal for Electricity, New Delhi (in short "Tribunal"). In the said matter on 26.07.2019, the petitioners along with three other persons, moved an application for impleadment for giving opportunity of hearing to them but the Registry of the Appellate Tribunal refused to receive the same on the ground that the judgment has been reserved. Thereafter, the petitioners sent the application for impleadment by Speed Post (Speed Post No. ED293542109IN) from the Supreme Court post office to the Registry of the Tribunal. 4. Thereafter, the petitioners sent the application for impleadment by Speed Post (Speed Post No. ED293542109IN) from the Supreme Court post office to the Registry of the Tribunal. 4. In view of the aforesaid factual background, the present writ petition has been filed for the following main reliefs:- "Issue a writ or direction in the nature of mandamus directing the Appellate Tribunal for Electricity at New Delhi to entertain the application dated 26.07.2019 sent through speed post on 29.07.2019 by the petitioners and to decide the issues involved in the application while disposing of Appeal No. 183 of 2019." 5. In view of the prayer sought by the petitioners, a query has been put to the learned counsel for the petitioners that whether this Court under Article 226 of the Constitution of India can issue a direction to the authority which is situated outside the territorial jurisdiction or not. 6. Learned counsel for the petitioners in response to the aforesaid query submits that in the present case initially an order dated 29.03.2019 has been passed by the Uttar Pradesh Electricity Regulatory Commission, Lucknow in the Petition No. 1403 of 2019 and one of the respondents namely M/s. Renascent Power Venture Pvt. Ltd. had filed the Writ Petition No. 11778 (M/B) of 2019 [M/s Renascent Power Venture Pvt. Ltd. v. U.P. Electricity Regulatory Commission], which was disposed by means of the order dated 25.04.2019 by this Court and in pursuance thereof, an appeal was filed before the opposite party No. 1-Appellate Tribunal, Electricity, New Delhi and in view of the said facts, cause of action lies within the territorial jurisdiction of this Court, so for the reliefs claimed by the petitioners, the present writ petition is maintainable before this Court. 7. We have considered the submissions made by the counsel for the petitioners and perused the record, keeping in view the prayer sought in the writ petition, which relates to Appellate Tribunal for Electricity, New Delhi. 8. From the bundle of facts, related to the prayer sought in the writ petition, it appears from the record that pursuant to the order dated 25.04.2019 passed by this Court in the Writ Petition No. 11778 (M/B) of 2019 filed by M/s Renascent Power Venture Pvt. Ltd. , the Appeal was filed before the Appellate Tribunal at New Delhi. 8. From the bundle of facts, related to the prayer sought in the writ petition, it appears from the record that pursuant to the order dated 25.04.2019 passed by this Court in the Writ Petition No. 11778 (M/B) of 2019 filed by M/s Renascent Power Venture Pvt. Ltd. , the Appeal was filed before the Appellate Tribunal at New Delhi. In the appeal, an application for impleadment was moved by the petitioners in the Registry of Appellate Tribunal at New Delhi. The Registry of the Appellate Tribunal refused to accept the application of the petitioners. Thereafter, the petitioners sent the application for impleadment through speed post from the post office of Hon'ble Supreme Court at New Delhi to the Registry of the Appellate Tribunal at New Delhi. Thereafter, the petitioners with a prayer to direct the Appellate Tribunal at New Delhi to entertain the application for impleadment sent through speed post, have approached this Court at Lucknow. 9. In view of the aforesaid bundle of facts, we are of the view that the cause of action for taking legal remedies accrued to the petitioners at New Delhi. Further, the Appellate Tribunal, against which relief has been sought, is also not within the territorial jurisdiction of this Court at Lucknow. With respect to relief sought in the writ petition, no cause of action has accrued to the petitioners within the territorial jurisdiction of this Court. 10. In the case of Nawal Kishore Sharma v. Union of India, 2014 (9) SCC 329 : 2014 SCC Online SC 610, after considering the catena of judgments, the Hon'ble Apex Court has held that in order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court's jurisdiction. 11. The relevant paras of the judgment aforesaid are quoted below for ready reference:- "7. The short question that falls for consideration in the facts of the present case is that as to whether the Patna High Court is correct in taking the view that it has no jurisdiction to entertain the writ petition. For answering the said 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 reads as under: "226. For answering the said 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 reads as under: "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, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32." 8. While interpreting the aforesaid provision, the Constitution Bench of this Court in Election Commission v. Saka Venkata Rao, 1953 AIR(SC) 210, held that the writ court would not run beyond the territories subject to its jurisdiction and that the person or the authority affected by the writ must be amenable to court's jurisdiction either by residence or location within those territories. The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issued under Article 226 of the Constitution which makes no reference to any cause of action or where it arises but insist on the presence of the person or authority within the territories in relation to which the High Court exercises jurisdiction. In another Constitution Bench judgment of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission, 1954 AIR(SC) 207, this Court took the similar view and held that the writ court cannot exercise its power under Article 226 beyond its territorial jurisdiction. The Court was of the view that the exercise of power conferred by Article 226 was subject to a twofold limitation viz. firstly, the power is to be exercised in relation to which it exercises jurisdiction and secondly, the person or authority on whom the High Court is empowered to issue writ must be within those territories. These two Constitution Bench judgments came for consideration before a larger Bench of seven Judges of this Court in Lt. Col. firstly, the power is to be exercised in relation to which it exercises jurisdiction and secondly, the person or authority on whom the High Court is empowered to issue writ must be within those territories. These two Constitution Bench judgments came for consideration before a larger Bench of seven Judges of this Court in Lt. Col. Khajoor Singh v. Union of India [Lt. Col. Khajoor Singh v. Union of India, 1961 AIR(SC) 532] . The Bench approved the aforementioned two Constitution Bench judgments and opined that unless there are clear and compelling reasons, which cannot be denied, writ court cannot exercise jurisdiction under Article 226 of the Constitution beyond its territorial jurisdiction. 9. The interpretation given by this Court in the aforesaid decisions resulted in undue hardship and inconvenience to the citizens to invoke writ jurisdiction. As a result, clause (1-A) was inserted in Article 226 by the Constitution (Fifteenth) Amendment Act, 1963 and subsequently renumbered as clause (2) by the Constitution (Forty-second) Amendment Act, 1976. The amended clause (2) now reads as under: "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, 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)-(4)***" On a plain reading of the amended provisions in clause (2), it is clear that now the High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court's territorial jurisdiction. (3)-(4)***" On a plain reading of the amended provisions in clause (2), it is clear that now the High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court's territorial jurisdiction. Cause of action for the purpose of Article 226(2) of the Constitution, for all intent and purpose must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. The expression cause of action has not been defined either in the Code of Civil Procedure or the Constitution. Cause of action is bundle of facts which is necessary for the plaintiff to prove in the suit before he can succeed. The term "cause of action" as appearing in clause (2) came up for consideration time and again before this Court. 10. In State of Rajasthan v. Swaika Properties, 1985 (3) SCC 217 , the fact was that the respondent Company having its registered office in Calcutta owned certain land on the outskirts of Jaipur City, was served with notice for acquisition of land under the Rajasthan Urban Improvement Act, 1959. Notice was duly served on the Company at its registered office in Calcutta. The Company, first appeared before the Special Court and finally the Calcutta High Court by filing a writ petition challenging the notification of acquisition. The matter ultimately came before this Court to answer a question as to whether the service of notice under Section 52(2) of the Act at the registered office of the respondent in Calcutta was an integral part of cause of action and was it sufficient to invest the Calcutta High Court with a jurisdiction to entertain the petition challenging the impugned notification. Answering the question this Court held: (Swaika Properties case, 1985 (3) SCC 217 , SCC pp. 222-23, paras 7-8) "7. Upon these facts, we are satisfied that the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court and therefore the learned Single Judge had no jurisdiction to issue a rule nisi on the petition filed by the respondents under Article 226 of the Constitution or to make the ad interim ex parte prohibitory order restraining the appellants from taking any steps to take possession of the land acquired. 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 Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. 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. The Notification dated 8-2-1984 issued by the State Government under Section 52(1) of the Act became effective the moment it was published in the Official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department, Jaipur under Section 52(2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52(1) of the Act. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department, Jaipur under Section 52(2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution, the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench, where the cause of action wholly or in part arose." 11. This provision was again considered by this Court in Oil and Natural Gas Commission v. Utpal Kumar Basu [Oil and Natural Gas Commission v. Utpal Kumar Basu, 1994 (4) SCC 711 ]. In this case the petitioner Oil and Natural Gas Commission (ONGC) through its consultant Engineers India Limited (EIL) issued an advertisement in the newspaper inviting tenders for setting up of Kerosene Recovery Processing Unit in Gujarat mentioning that the tenders containing offers were to be communicated to EIL, New Delhi. After the final decision was taken by the Steering Committee at New Delhi, the respondent Nicco moved the Calcutta High Court praying that ONGC be restrained from awarding the contract to any other party. It was pleaded in the petition that Nicco came to know of the tender from the publication in the Times of India within the jurisdiction of the Calcutta High Court. This Court by setting aside the order passed by the Calcutta High Court came to the following conclusion: (Utpal Kumar Basu case [Oil and Natural Gas Commission v. Utpal Kumar Basu, 1994 (4) SCC 711 ], SCC p. 717, para 6) "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. 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 paras 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." 12. In Kusum Ingots & Alloys Ltd. v. Union of India, 2004 (6) SCC 254 , this Court elaborately discussed clause (2) of Article 226 of the Constitution, particularly the meaning of the word "cause of action" with reference to Section 20(c) and Section 141 of the Code of Civil Procedure and observed: (SCC p. 259, paras 9-10) "9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts. 10. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts. 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." Their Lordships further observed as under: (Kusum Ingots & Alloys Ltd. case, 2004 (6) SCC 254 , SCC p. 264, paras 29-30) "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 [Lt. Col. Khajoor Singh v. Union of India, 1961 AIR(SC) 532] 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." 13. In Union of India v. Adani Exports Ltd., 2002 (1) SCC 567 , this Court held that in order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the Court to decide the dispute and the entire or a part of it arose within its jurisdiction. 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 are such which have a nexus or relevance with the lis i.e. involved in the case. This Court observed: (SCC pp. 573-74, para 17) "17. This Court observed: (SCC pp. 573-74, para 17) "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 the court concerned. If we apply this principle then we see that none of the facts pleaded in para 16 of the petition, in our opinion, falls into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad." 14. In Om Prakash Srivastava v. Union of India, 2006 (6) SCC 207 : (2006) 3 SCC (Cri) 24 , answering a similar question this Court observed that on a plain reading of clause (2) of Article 226 it is manifestly clear that the High Court can exercise power to issue direction, order or writs for the enforcement of any of the fundamental rights or for any other purpose if the cause of action 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 territory. In para 7 this Court observed: (SCC p. 210) "7. In para 7 this Court observed: (SCC p. 210) "7. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limits of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court's jurisdiction and such infringement may take place by causing him actual injury or threat thereof." 15. In Rajendran Chingaravelu v. CIT, 2010 (1) SCC 457 : (2010) 1 SCC (Cri) 810, this Court while considering the scope of Article 226(2) of the Constitution, particularly the cause of action in maintaining a writ petition, held as under: (SCC p. 461, paras 9 & 11) "9. The first question that arises for consideration is whether the Andhra Pradesh High Court was justified in holding that as the seizure took place at Chennai (Tamil Nadu), the appellant could not maintain the writ petition before it. The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction 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. *** 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. 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 hours and hours. In short, he wants the enquiries, verifications and investigations to be efficient, passenger-friendly and courteous. Secondly, he wants the Department/officers concerned to acknowledge that he was unnecessarily harassed." 16. Regard being had to the discussion made hereinabove, there cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court's jurisdiction." 12. In view of the law laid down by the Hon'ble Apex Court that in order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court's jurisdiction and facts, in brief stated hereinabove, we are of the view that no legal right of the petitioners has been infringed within the territorial jurisdiction of this Court at Lucknow. 13. Accordingly, we hold that the present writ petition, for the relief sought, is neither entertainable nor maintainable before this Court. 14. For the foregoing reasons, the writ petition lacks merit. Hence, it is dismissed with no order as to costs.