Madhya Pradesh High Court
Smt. Rajkumari Thakur vs The State Of Madhya Pradesh on 14 November, 2024
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV SACHDEVA,
&
HON'BLE SHRI JUSTICE VINAY SARAF
WRIT APPEAL No. 2228 of 2023
SHRIGOVIND NIRANJAN AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WITH
WRIT APPEAL No. 1804 of 2024
SMT. RAJKUMARI THAKUR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri K.C. Ghildiyal - Senior Advocate with Ms. Warija Ghildiyal Advocate
for the appellant.
Shri Ritwik Parashar - GA for the respondent/State
Reserved On : 18.08.2024
Pronounced On: 14.11.2024
WA No. 1804/ 2024 & WA 2228/2023 Page 1
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
ORDER
Per: Justice Sanjeev Sachdeva,
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
WA No. 1804/ 2024 & WA 2228/2023 Page 2
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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
WA No. 1804/ 2024 & WA 2228/2023 Page 3
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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.
WA No. 1804/ 2024 & WA 2228/2023 Page 4
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995(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.”
WA No. 1804/ 2024 & WA 2228/2023 Page 5
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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
WA No. 1804/ 2024 & WA 2228/2023 Page 6
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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 of India 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}.
WA No. 1804/ 2024 & WA 2228/2023 Page 7
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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 K.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.
WA No. 1804/ 2024 & WA 2228/2023 Page 8
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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 of June 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,WA No. 1804/ 2024 & WA 2228/2023 Page 9
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995in 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:
WA No. 1804/ 2024 & WA 2228/2023 Page 10
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
“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.
***** ***** *****
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.
***** ***** *****
14. In State of Rajasthan 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.”
***** ***** *****
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.
WA No. 1804/ 2024 & WA 2228/2023 Page 11
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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. If passing 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] .)
WA No. 1804/ 2024 & WA 2228/2023 Page 12
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
24. Learned counsel for the appellant in support of his
argument would contend that the situs of framing 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
WA No. 1804/ 2024 & WA 2228/2023 Page 13
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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
WA No. 1804/ 2024 & WA 2228/2023 Page 14
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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
WA No. 1804/ 2024 & WA 2228/2023 Page 15
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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.”
WA No. 1804/ 2024 & WA 2228/2023 Page 16
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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 of India [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.
WA No. 1804/ 2024 & WA 2228/2023 Page 17
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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.
WA No. 1804/ 2024 & WA 2228/2023 Page 18
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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 of Delhi only because the seat of
the Union of India 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
WA No. 1804/ 2024 & WA 2228/2023 Page 19
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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 of forum 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
WA No. 1804/ 2024 & WA 2228/2023 Page 20
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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)
WA No. 1804/ 2024 & WA 2228/2023 Page 21
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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 of forum 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
WA No. 1804/ 2024 & WA 2228/2023 Page 22
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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
WA No. 1804/ 2024 & WA 2228/2023 Page 23
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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
WA No. 1804/ 2024 & WA 2228/2023 Page 24
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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 of forum
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 K.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 K.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.
WA No. 1804/ 2024 & WA 2228/2023 Page 25
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
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.
WA No. 1804/ 2024 & WA 2228/2023 Page 26
NEUTRAL CITATION NO. 2024: MPHC-JBP:56995
(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.
(SANJEEV SACHDEVA) (VINAY SARAF)
JUDGE JUDGE
rk
WA No. 1804/ 2024 & WA 2228/2023 Page 27
RAVIKANT KEWAT
2024.11.21 15:07:39 +05'30'