Bombay High Court
Volvo Group India Pvt. Ltd. (Formerly ... vs The Union Of India Thorugh The Secretary ... on 4 September, 2024
Author: K.R. Shriram
Bench: K. R. Shriram
Digitally
signed by
2024:BHC-OS:13744-DB
GAURI
GAURI AMIT
AMIT GAEKWAD
GAEKWAD Date: 1/32 WP-2837-2021.doc
2024.09.06
11:11:22
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2837 OF 2021
Volvo Group India Pvt Ltd. formerly known )
as Volvo Buses India Pvt Ltd., a company )
incorporated under the Companies Act, )
1956 having its registered office at )
Yalachahally Village, Tavarekere Post, )
Hoskote, Bangalore - 562 122 ) ...Petitioner
V/s.
1. The Union of India )
through the Secretary, Ministry of Finance, )
Department of Revenue, 128-A/North Block )
New Delhi - 110 001 )
2. Principal Commissioner RA & Ex-Officio )
Additional Secretary to the Government )
th
of India, 8 Floor, World Trade Centre, )
Cuff Parade, Mumbai - 400 005 )
3. The Commissioner of Central Tax, )
& Central Excise, Bangalore-I )
Commissionerate, Central Revenue Building )
P. B. No.5400, Queen's Road, )
Bangalore - 560 001 )
4. The Assistant Commissioner of Central )
Excise, Bangalore-I Division, Bangalore-I, )
Commissionerate, No.7, Girls School Street, )
Seshadripuram, Bangalore - 560 020 )
...Respondents
WITH
WRIT PETITION NO.3128 of 2024
Siemens Limited )
a private limited company incorporated )
under the Companies Act, 1956 and having )
its registered office at Birla Aurora, Level )
21, Plot No.1080, Dr. Annie Besant Road, )
Worli, Mumbai - 400 030 ) .... Petitioner
V/s.
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1. The Union of India )
through Ministry of Law and Justice, )
Branch Secretariat, Aaykar Bhavan, Annex )
Building, 2nd Floor, New Marine Line, )
Mumbai - 400 020 )
2. Principal Commissioner & Ex-Officio )
Additional Secretary to the Government )
of India, 8th Floor, World Trade Centre, )
Cuff Parade, Mumbai - 400 025 )
3. Commissioner of CGST & Customs, Goa )
Old IPHB Complex, Near O/o. CEO, )
Altinho, Panaji, Goa, India )
4. Asst. Commissioner of Central Goods & )
Service Tax, Goa, Old IPHB Complex, Near )
O/o. CEO, Altinho, Panaji, Goa, India ) ...Respondents
WITH
WRIT PETITION NO.2188 OF 2022
ABB Limited )
having its factory at Plot No.79 )
Street No.17, MIDC Industrial Area )
Satpur, Nashik - 422 007 and its registered )
office at Khanija Bhavan, 2nd floor, East Wing )
49, Race Course Road, Bengaluru - 560 001 ) ...Petitioner
V/s.
1. The Union of India )
through the Secretary, Ministry of Finance )
Department of Revenue, 128-A/North Block )
New Delhi - 110 001 )
2. Principal Commissioner & Ex-Officio )
Additional Secretary to the Government )
of India, 8th Floor, World Trade Centre, )
Cuff Parade, Mumbai - 400 005 )
3. The Commissioner of Central Excise, )
Nashik Commissionerate, GST Bhawan, )
Plot No.155, P-34, NH Jaishtha & Vaishakha, )
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Trimurti Chowk, CIDCO, Nashik - 422 008 )
4. The Deputy Commissioner of Central )
Excise & CGST, Nashik-I Division, GST )
Bhawan, Plot No.155, P-34, NH Jaishtha )
& Vaishakha, Trimurti Chowk, CIDCO, )
Nashik - 422 008 ) ...Respondents
WITH
WRIT PETITION NO.2910 OF 2021
Volvo Group India Pvt Ltd. formerly known )
as Volvo Buses India Pvt Ltd., a company )
incorporated under the Companies )
Act, 1956 having its registered office at )
Yalachahally Village, Tavarekere Post, )
Hoskote, Bangalore - 562 122 ) ...Petitioner
V/s.
1. The Union of India )
through the Secretary, Ministry of Finance, )
Department of Revenue, 128-A/North Block, )
New Delhi - 110 001 )
2. Principal Commissioner RA & Ex-Officio )
Additional Secretary to the Government )
of India, 8th Floor, World Trade Centre, )
Cuff Parade, Mumbai - 400 005 )
3. The Commissioner of Central Tax, )
& Central Excise, Bangalore-I )
Commissionerate, Central Revenue Building, )
P. B. No.5400, Queen's Road, )
Bangalore - 560 001 )
4. The Assistant Commissioner of Central )
Excise, Bangalore-I Division, Bangalore-I, )
Commissionerate, No.7, Girls School Street, )
Seshadripuram, Bangalore - 560 020 ) ...Respondents
WITH
WRIT PETITION NO.3587 OF 2022
India Yamaha Motor P. Limited, having its )
factory at Plot No.VV-I, SIPCOT Industrial )
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Park, Vallam Vadagal Village, Sriperumbudur )
Taluk, Kanchipuram - 602 105 ) .... Petitioner
V/s.
1. The Union of India )
through the Secretary, Ministry of Finance )
Department of Revenue, 128-A/North Block, )
New Delhi - 110 001 )
2. Principal Commissioner RA & Ex-Officio )
Additional Secretary to the Government )
th
of India, 8 Floor, World Trade Centre, )
Cuff Parade, Mumbai - 400 005 )
3. The Commissioner of CGST & Central )
Excise, Chennai Outer Commissionerate, )
No.2054-I, II Avenue, 12th Main Road, )
Newry Towers, Anna Nagar, )
Chennai - 600 034 )
4. The Assistant Commissioner of GST )
& Central Excise, Sriperumbudur Division, )
Chennai Outer Commissionerate, )
C-48, TNHB Building, Anna Nagar, )
Chennai - 600 040 ) ...Respondents
WITH
WRIT PETITION NO.5120 OF 2022
Indorama Synthetics (I) Ltd. )
having its registered office at A-31, MIDC )
Industrial Area, Butibori, Nagpur - 441 007 ) .... Petitioner
V/s.
1. The Union of India )
through the Secretary, Ministry of Finance, )
Department of Revenue, 128-A/North Block, )
New Delhi - 110 001 )
2. Principal Commissioner & Ex-Officio )
Additional Secretary to the Government )
of India, 8th Floor, World Trade Centre, )
Cuff Parade, Mumbai - 400 005 )
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3. The Commissioner of Central Excise, )
(Appeals), Nagpur, Kendriya Utpad Bhavan, )
2nd Floor, Room No.221, Telangkhedi Road, )
Civil Line, Nagpur - 440 001 )
4. The Deputy Commissioner of Central )
Excise, Division II, Nagpur, Telangkhedi )
Road, Civil Line, Nagpur - 440 001 ) ...Respondents
----
Mr. Sriram Sridharan a/w. Mr. Shanmuga Dev and Ms. Nishtha Shrivastava
for petitioner in all petitions.
Mr. Karan Adik a/w. Ms. Niyati Mankad for Respondent Nos.2 to 4 in
WP/2188/2022.
Mr. Karan Adik a/w. Mr. Ram Ochani for Respondent Nos.3 and 4 in
WP/3587/2022.
Mr. Jitendra B. Mishra a/w. Ms. Sangeeta Yadav and Mr. Umesh Gupta for
Respondents in WP/2837/2021, WP/2910/2021 and WP/5120/2022.
Ms. Sangeeta Yadav for Respondents in WP/3128/2024.
Mr. Jitendra B. Mishra a/w Mr. Dhananjay B. Deshmukh and Mr. Rupesh
Dubey for Respondents in WP/5120/2022.
Mr. Jitendra B. Mishra a/w. Ms. Sangeeta Yadav and Mr. Rupesh Dubey for
Respondents in WP/2837/2021 and WP/2910/2021.
Mr. Karan Adik a/w. Mr. Satyaprakash Sharma for Respondents in
WPL/3128/2024.
----
CORAM : K. R. SHRIRAM &
JITENDRA JAIN, JJ.
RESERVED ON : 4th SEPTEMBER 2024
PRONOUNCED ON : 5th SEPTEMBER 2024
JUDGMENT (PER K.R. SHRIRAM, J.) :
1 In all these six petitions listed today respondents raised a
preliminary objection in relation to the maintainability of these petitions
before Bench of this Court. The preliminary objection is that petitioners are
required to file writ petitions before the High Courts within whose
jurisdiction the original adjudication orders were passed. Having heard the
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counsels, we shall demonstrate that the preliminary objection is not
sustainable. We, therefore, proceed to deal with the limited question of
jurisdiction. We are, at present, not concerned with the merits of the
disputes between the parties for the matter has not yet been heard by us on
merits. It is, therefore, not necessary to set out the facts in detail, except to
the extent required to determine the issue of jurisdiction.
2 In all the petitions, except Writ Petition No.5120 of 2022, the
orders in original, the orders in appeal and the orders passed by the
Revisionary Authority, who is also a formal party, were against respective
petitioners. In Writ Petition No.5120 of 2022 the order in original was in
favour of petitioner but the order in appeal and the order of Revisionary
Authority, against which the petition is filed, were against petitioners.
3 In all the petitions the averment is that the impugned order
passed by the Revisionary Authority has been issued within the jurisdiction
of this Court. The office of the Revisionary Authority is within the
jurisdiction of this Court and, hence, the entire cause of action has arisen
within the jurisdiction of this Court. Therefore, this Court has jurisdiction to
entertain, try and dispose the petition.
4 The following Table gives the details of place of the
adjudicating authorities who have passed the adjudication orders and in
whose territorial jurisdiction of the High Courts they may fall :
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Sr. Writ Petition Name of Place of High Court within
No. Number Petitioner Adjudicating whose jurisdiction
Authority adjudication order
was passed
1 WP/2837/2021 Volvo Group Bengaluru Karnataka High Court
India Pvt. Ltd. at Bangalore
2 WP/2910/2021 Volvo Group Bengaluru Karnataka High Court
India Pvt. Ltd. at Bangalore
3 WP/3128/2024 Siemens Ltd. Goa Goa Bench of Bombay
High Court
4 WP/2188/2022 ABB Limited Bengaluru Karnataka High Court
at Bangalore
5 WP/3587/2022 India Yamaha Chennai Madras High Court at
Motor Private Chennai
Ltd.
6 WP/5120/2022 Indorama Nagpur Nagpur Bench of
Synthetics (I) Bombay High Court
Ltd.
5 Petitioners have approached this Court against order passed by
the Revisionary Authority constituted under Section 35EE of the Central
Excise Act, 1944 (the Excise Act). Petitioners seek to challenge the legality
and validity of orders passed by the Revisionary Authority rejecting the
rebate claim filed by petitioners. Petitioners had filed a rebate claim for
rebate of customs duty paid on the raw material purchased under Rule 18
of the Central Excise Rules, 2002 read with Notification No.21/2004-
CE(NT) dated 6th September 2004. The show cause notices were issued
rejecting the rebate claim on various grounds. We need not go further into
those details to decide the issue of jurisdiction.
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6 In matters relating to excise duty and service tax, most appeals
against orders of the Departmental Authorities lie before the Customs,
Excise and Service Tax Appellate Tribunal (CESTAT) under Section 35B of
the Excise Act. The Proviso to sub-section (1) of Section 35B, however,
carves out certain exceptions. It says orders relating to the subjects specified
in the proviso to sub-section (1) of Section 35B would not be appealable to
the CESTAT under Section 35B. Those orders would be amenable to revision
under Section 35EE by the Central Government. One such order would be
relating to matters of rebate. Those will not be appealable to the CESTAT
but would go before the Central Government under Section 35EE.
7 Rule 10 of the Central Excise (Appeals) Rules, 2001 provides
that all revisions under Section 35EE would lie before jurisdictional
Principal Commissioner (Revisionary Authority). The jurisdiction of
Revisionary Authority is specified as follows :
Sr. Office Jurisdiction to hear Revision
No. Applications against Commissioner
(Appeals) Order (State-wise and
Union-Territory wise)
1 Principal Commissioner (RA) Jammu & Kashmir, Himachal
and ex-officio Additional Pradesh, Punjab, Chandigarh, Uttar
Secretary to the Government of Pradesh, Delhi, Haryana,
India- Delhi Uttarakhand, Bihar, Jharkhand,
West Bengal, Andaman & Nicobar
Islands, Sikkim, Odisha, Rajasthan,
Assam, Arunachal Pradesh,
Manipur, Meghalaya, Mizoram,
Nagaland, Tripura.
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2 Principal Commissioner (RA) Andhra Pradesh, Telangana,
and ex-officio Additional Karnataka, Kerala, Lakshadweep,
Secretary to the Government of Puducherry, Tamil Nadu, Gujarat,
India - Mumbai Dadra and Nagar Haveli, Daman
and Diu, Maharashtra, Goa,
Madhya Pradesh, Chhattisgarh.
8 As is clear from the above, the Revisionary Authority sits only
in two locations, i.e., in Delhi and in Mumbai. Hence, rebate matters arising
from all of the States of southern India would lie before the Revisionary
Authority sitting in Mumbai. In the present case, all writ petitions pertain to
issues relating to rebate wherein the Revisionary Authority has denied
petitioners' claims for rebate. Furthermore, no statutory appeal has been
provided for against an order passed under Section 35EE of the Excise Act.
Therefore, an aggrieved assessee possesses no alternate remedy other than
challenging an order under Section 35EE via a writ petition under Article
226 of the Constitution of India.
9 It is respondents contention that petitioners should file writ
petitions challenging the orders of the Revisionary Authority before the
Madras High Court, Karnataka High Court, Goa Bench of this Court or the
Nagpur Bench of this Court.
10 Mr. Sridharan submitted as under :
(i) Where the original lis arises in one area falling under the
jurisdiction of one High Court and the appellate order is passed in another
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area falling under the jurisdiction of another High Court, petitioner has the
right to choose to file a writ petition under Article 226 before either of the
two High Courts.
(ii) In Sri Nasiruddin v/s. State Transport Appellate Tribunal 1
and Kusum Ingots & Alloys Ltd. v/s. Union of India 2, the Hon'ble Apex
Court has held that if the cause of action arises in part within one area and
another part arises in another area 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. Therefore, if the cause of
action can be said to have arisen partly within one area and partly outside
the said area, the litigant will have the choice to file writ petition under
Article 226 of the Constitution of India before either of the two High
Courts.
(iii) The order of the Revisionary Authority constitutes a part of
cause of action. A writ petition would be maintainable in the High Court
within whose jurisdiction it is situated which will be this Court having
regard to the fact that the order of the Revisionary Authority is also
1 AIR 1976 SC 331
2 2004 (168) E.L.T. 3 (SC)
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required to be set aside and as the order of the original authority merges
with that of the order of Revisionary Authority.
(iv) It is settled position that once an appeal is decided by an
Appellate Authority, the order of the original authority gets merged with the
order of the Appellate Authority by principles of doctrine of merger. In
effect, the order of the original authority no longer remains, and it is the
order of the Appellate Authority which prevails and is amenable to
challenge.
(v) The order of the Appellate Authority forms a significant
part of the cause of action for petitioner. As held in Collector of Customs,
Calcutta v/s. East India Commercial Co. Ltd., Calcutta 3, the order of the
original authority becomes merged with the order of the Revisionary
Authority. Therefore, if the Appellate Authority is beyond the territorial
jurisdiction of the High Court, it would not be open to issue a writ to the
original authority which is within its jurisdiction so long as it cannot issue a
writ to the Appellate Authority. For example, if petitioner approaches the
Karnataka High Court, where the adjudicating authority is situated in some
of the petitions, the Karnataka High Court will not be able to issue writ
even to the original authority.
3 AIR 1963 SC 1124
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(vi) Prior to the amendment of Article 2264 and the insertion of
Article 226(2), the Hon'ble Supreme Court has specifically held that on
account of the principle of the doctrine of merger, a writ against an order of
the Appellate Authority, would lie only before the High Court within whose
territorial jurisdiction the Appellate Authority is located. This principle
would continue to hold the field today. By the insertion of Article 226(2),
jurisdiction was bestowed upon the High Courts to issue writs to authorities
located outside their territorial jurisdiction as long as the cause of action
arose within their territorial jurisdiction. Consequently, even the High Court
within whose jurisdiction the original lis arose could now issue writs to the
Appellate Authority located outside its territorial jurisdiction. This would
not, however, in any way denude the powers of the High Court within
whose territorial jurisdiction the Appellate Authority is located to issue
writs.
(vii) This has been confirmed by the co-ordinate Bench of this
Court in Kishore Rungta v/s. Punjab National Bank5 and a Full Bench of the
4 226. Power of High Courts to issue certain writs - (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 warrantor 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.
XXXXXXXXXXXXXXXXXX
5 2003 (151) E.L.T. 502 (Bom.)
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Hon'ble Madras High Court in Sanjos Jewellers v/s. Syndicate Bank6 where
it has been held that the Court would have jurisdiction when the Appellate
Authority, whose order is subject to scrutiny, is situated within its
jurisdiction and the party would have the right to choose either of the
Courts.
(viii) In light of the above, the present petitions are
maintainable before the Principal Seat of this Court since the orders of the
adjudicating authorities have merged into the impugned orders of the
Revisionary Authority who is located in Mumbai.
11 Mr. Mishra submitted as under :
(i) It cannot be stated that substantial or material or integral
facts construing a cause of action has arisen within jurisdiction of this
Court. At the most it can be stated only a slender part of cause of action has
arisen within the jurisdiction of this Court as against major part of cause of
action arising outside the jurisdiction of this Court. Therefore, this Court
may not entertain the petitions on the ground of forum conveniens.
(ii) The contesting respondents are all situated either in
Bangalore or Goa or Chennai or Nagpur whereas, the Revisionary Authority
is only a proforma party in the facts of this case. Even in the absence of
respondent no.2, this petition could have been filed. Respondent no.2 may
be proper party but not necessary party. Since petitioners and the contesting
6 2007 (5) CTC 305
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respondents are based outside, the High Courts within whose jurisdiction
those parties are situated would be most appropriate Court to entertain
these petitions. In State of Goa v/s. Summit Online Trade Solutions Pvt.
Ltd.7 and Kusum Ingots & Alloys Ltd. (Supra) the Hon'ble Apex Court has
held that even if a small part of the cause of action arises within territorial
jurisdiction of a High Court, the same by itself could not have been a
determinative factor.
(iii) The Larger Bench of Delhi High Court (5 judges) in
Sterling Agro Industries Ltd. v/s. Union of India 8 has held that 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.
(iv) In Dharampal Premchand Ltd. v/s. Commissioner of
Central Excise9, the Delhi High Court has held that situs of the Tribunal
would not be part of cause of action.
(v) In BSS Mines and Minerals Pvt. Ltd. v/s. Union of India and
Ors.10, this Court has observed that though the Tribunal is situated at
Mumbai but the original authority before the Tribunal was the
Commissioner, Central Excise at Nagpur and, therefore, the petition is to be
filed before the Nagpur Bench.
7 2003 (7) SCC 791
8 2011 (270) E.L.T. 477 (Del.)
9 2012 (277) E.L.T. 23 (Del.)
10 2023 : BHC-OS : 9444-DB
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(vi) The Hon'ble Gujarat High Court in Bhavendra
Hashmukhlal Patadia v/s. Union of India 11 has held that the principle of
forum conveniens also makes it obligatory on the part of the Court to see
the convenience of all the parties before it. The existence of a more
appropriate forum, expenses, law relating to the lis, convenience of the
witnesses, verification and examination of the facts for adjudication of the
controversy and other similar and ancillary aspects. The Court has further
held that even in a scenario where a part cause of action has arisen within
one High Court's territorial jurisdiction, that High Court can still refuse to
exercise jurisdiction under Article 226 on account of other consideration as
defined under the concept of "forum conveniens".
(vii) In Kohli Roadlines, Nagpur v/s. Maharashtra State Power
Generation Company12, this Court declined to exercise jurisdiction by saying
that even if the contention of petitioner that part of cause of action has
arisen within the territorial limits of this Court is accepted, on the doctrine
of 'forum conveniens', we are not inclined to entertain the writ petition.
Even in Sri Nasiruddin (Supra), relied upon by petitioner, the Court held
that the Court will find out in each case whether the jurisdiction of the
Court is rightly attracted by the alleged cause of action. East India
Commercial Co. Ltd. (Supra), relied upon by petitioner, is not applicable in
11 2022 : GUJHC : 20225-DB
12 2023 SCC OnLine Bom 638
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the facts and circumstances of the case and that judgment was passed prior
to the insertion of Article 226(2) of the Constitution of India.
(viii) Therefore, in the facts and circumstances of each of the
petitions it will be either Bangalore or Goa or Chennai or Nagpur that
would be most convenient forum and hence, this Court may not entertain
the petitions even though the situs of Revisionary Authority, who has passed
the impugned order, is within territorial limits of this Court.
12 Mr. Adik submitted as under :
(i) At the outset adopted the submissions of Mr. Mishra.
(ii) The Central Government in exercise of powers conferred
under Section 37 of the Excise Act keeps amending the rules under the
Central Excise (Appeals) Rules, 2001. The Central Government by such
amendments keeps altering the jurisdiction to be exercised by the Principal
Commissioner (Revisionary Authority) from time to time. Therefore, the
situs of the Revisionary Authority cannot be a factor to decide the
jurisdiction.
(iii) The Delhi High Court in West Coast Ingots (P) Ltd. v/s.
Commissioner of Central Excise, New Delhi 13 did not entertain the writ
petition while deciding whether the Delhi High Court should exercise
territorial jurisdiction in the matter only because the impugned order has
been made by the Principal Bench of the Settlement Commission in Delhi
13 2007 (209) E.L.T. 343 (Del.)
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notwithstanding the fact that petitioners themselves were located in Goa
and the show cause notices were issued by the Commissioner of Central
Excise in Goa. The Court held that significant part of the cause of action
cannot be said to arise within the territorial jurisdiction of that Court
merely because the impugned order has been passed by the Settlement
Commission located within its territorial jurisdiction, when the events
leading to the filing of the proceedings before such Commission, and the
parties to such proceedings, are outside the territorial jurisdiction of the
Court.
FINDINGS :
13 It is the submission of petitioners that since the impugned
orders have been passed by the Revisionary Authority who is located within
the territorial jurisdiction of the Principal Seat of this Court, if not the
whole, certainly a significant part of the cause of action arises herein. In
such a scenario, petitioners submitted that petitioner has the right to choose
whether he wishes to approach the Principal Seat of this Court or go before
the High Court or the Bench of this Court at Nagpur or Goa within whose
territorial jurisdiction the original adjudication arose. Such a choice is not
forum shopping but his right of choice as an aggrieved litigant. This
position is directly covered by the decisions of the Hon'ble Supreme Court
in Sri Nasiruddin (Supra) and Kusum Ingots & Alloys Ltd. (Supra).
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14 The decision of the Four Judge Bench in Sri Nasiruddin (Supra)
directly applies to the facts and circumstances of the case at hand. The
question in Sri Nasiruddin (Supra) was whether a writ against an appellate
order would lie before the Lucknow Bench or the Allahabad Bench of the
Hon'ble Allahabad High Court in cases where the original lis arose in
Allahabad but the seat of the appellate forum was in Lucknow. Paragraphs
36, 37, 38 and 39 of the judgment, reads as under :
36. The meaning of the expression "in respect of cases arising
in such areas in "Oudh" in the first proviso to paragraph 14 of
the order was answered by the High Court that with regard to
applications under Article 226 the same will be "a case arising
within the areas in oudh, only if the right of the petitioner in
such an application arose first at a place within an area in
oudh. The implication according to the High Court is that if
the right of the petitioner arose first at any place outside any
area in oudh and if the subsequent orders either in the
revisional or appellate stage were passed by an authority
within an area in oudh then in such cases the Lucknow Bench
would not have any jurisdiction. The factor which weighed
heavily with the High Court is that in most cases where an
appeal or revision would lie to the State Government, the
impugned order would be made at Lucknow and on that view
practically all writ petitions would arise at Lucknow.
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
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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 rightly attracted by the alleged cause
of action.
38. To sum up. Our conclusions are as follows. First there is
no permanent seat of the High Court at Allahabad. The seats
at Allahabad and at Lucknow may be changed in accordance
with the provisions of the order. Second, the Chief Justice of
the High Court has no power to increase or decrease the areas
in oudh from time to time. The areas in oudh have been
determined once by the Chief Justice and, therefore, there is
no scope for changing the areas. Third. the Chief Justice has
power under the second proviso to paragraph 14 of the order
to direct in his discretion that any case or class of cases
arising in oudh areas shall be heard at Allahabad. Any case or
class of cases are those which are instituted at Lucknow. The
interpretation given by the High Court that the word "heard"
confers powers on the Chief Justice to order that any case or
class of cases arising in oudh areas shall be instituted or filed
at Allahabad, instead of Lucknow is wrong. The word "heard"
means that cases which have already been instituted or filed
at Lucknow may in the discretion of the Chief Justice under
the second proviso to paragraph 14 of the order he directed
to be heard at Allahabad. Fourth, the expression "cause of
action" with regard to a civil matter means that it should be
left to the litigant to institute cases at Lucknow Bench or at
Allahabad Bench according to the cause of action arising
wholly or in part within either of the areas. If the cause of
action arises wholly within oudh areas then the Lucknow
Bench will have jurisdiction. Similarly, if the cause of action
arises wholly outside the specified areas in oudh then
Allahabad will have jurisdiction. If the cause of action in part
arises in the specified oudh areas and part of the cause of
action arises outside the specified areas, it will be open to the
litigant to frame the case appropriately to attract the
jurisdiction either at Lucknow or at Allahabad. Fifth, a
criminal case arises where the offence has been committed or
otherwise as provided in the Criminal Procedure Code. That
will attract the jurisdiction of the Court at Allahabad or
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Lucknow. In some cases depending on the facts and the
provision regarding jurisdiction, it may arise in either place.
39. Applications under Article 226 will similarly lie either at
Lucknow or at Allahabad as the applicant will allege that the
whole of cause of action or part of the cause of action arose at
Lucknow within the specified areas of oudh or part of the
cause of action arose at a place outside the specified oudh
areas.
(emphasis supplied)
15 The Court held that 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 in part within the specified
areas in Oudh it will 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.
16 This has been reiterated in Kusum Ingots & Alloys Ltd. (Supra)
wherein the Hon'ble Supreme Court held keeping in view the expressions
used in Article 226(2) of the Constitution of India indisputably even if a
small fraction of cause of action accrues within the jurisdiction of the High
Court, the High Court will have jurisdiction in the matter. However, 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
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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. Paragraphs 25,
27, 29 and 30 held as follows :
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. xxxxxxxxxxxxxxx
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. xxxxxxxxxxxxxxx
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 (supra) 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.
(emphasis supplied)
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17 Therefore, since the Revisionary Authority is located within the
territorial jurisdiction of the Principal Seat of this Court, petitioner has the
option to file the petitions here or before the High Court within whose
jurisdiction the original adjudication occurred. Petitioners have the right to
file the petitions before the Principal Seat of this Court. Hence, on this
ground alone, the present petitions are maintainable before the Principal
Seat of this Court.
18 It is also trite that once an appeal is decided by an Appellate
Authority, the order of the original authority gets merged with the order of
the Appellate Authority by the principle of doctrine of merger. In effect, the
order of the original authority no longer remains, and it is the order of the
Appellate Authority which prevails and is amenable to challenge.
Hence, the order of the Appellate Authority forms a significant
part of the cause of action for petitioner. We find support in East India
Commercial Co. Ltd. (Supra), where the only question that fell for decision
was whether the High Court would have jurisdiction to issue a writ against
the Collector of Customs, Calcutta, inspite of the fact that his order was
taken in appeal to the Central Board of Revenue against which the High
Court could not issue a writ and the appeal had been dismissed. This was
answered as under:
4. The question therefore turns on whether the order of the
original authority becomes merged in the order of the
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appellate authority even where the appellate authority merely
dismisses the appeal without any modification of the order of
the original authority. It is obvious that when an appeal is
made, the appellate authority can do one of three things,
namely, (i) it may reverse the order under appeal, (ii) it may
modify that order, and (iii) it may merely dismiss the appeal
and thus confirm the order without any modification. It is not
disputed that in the first two cases where the order of the
original authority is either reversed or modified it is the order
of the appellate authority which is the operative order and if
the High Court has no jurisdiction to issue a writ to the
appellate authority it cannot issue a writ to the original
authority. The question therefore is whether there is any
difference between these two cases and the third case where
the appellate authority dismisses the appeal and thus
confirms the order of the original authority. It seems to us
that on principle it is difficult to draw a distinction between
the first tori kinds of orders passed by the appellate authority
and the third kind of order passed by it. In all these three
cases after the appellate authority has disposed of the appeal,
the operative order is the order of the appellate authority
whether it has reversed the original order or modified it or
confirmed it. In law, the appellate order of confirmation is
quite as efficacious as an operative order as an appellate
order of reversal or modification. Therefore, if the appellate
authority is beyond the territorial jurisdiction of the High
Court it seems difficult to hold even in a case where the
appellate authority has confirmed the order of the original
authority that the High Court can issue a writ to the original
authority which may even have the effect of setting aside the
order of the original authority when it cannot issue a writ to
the appellate authority which has confirmed the order of the
original authority. In effect, by issuing a writ to the original
authority setting aside its order, the High Court would be
interfering with the order of the appellate authority which
had confirmed the order of the original authority even though
it has no territorial jurisdiction to issue any writ to the
appellate authority. We therefore feel that on principle when
once an order of an original authority is taken in appeal to
the appellate authority which is located beyond the territorial
jurisdiction of the High Court, it is the order after the appeal
is disposed of; and as the High Court cannot issue a writ
against the appellate authority for want of territorial
jurisdiction it would not be open to it at issue a writ to the
original authority which may be within its territorial
jurisdiction once the appeal is disposed of, though it may be
that the appellate authority has merely confirmed the order of
the original authority and dismissed the appeal.
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5. It is this principle, viz., that the appellate order is the
operative order after the appeal is disposed of, which is in our
opinion the basis of the rule that the decree of the lower court
merges in the decree of the appellate court, and on the same
principle it would not be incorrect to say that the order of the
original authority is merged in the order of the appellate
authority whatsoever its decision-whether of reversal or
modification or mere confirmation. This matter has been
considered by this Court on a number of occasions after the
decision in Saka Venkata Subba Rao's case.
6. xxxxxxxxxxxxxxx
7. xxxxxxxxxxxxxxx The argument based on the principle of
merger was repelled by this Court in that case on two
grounds, namely, (i) that the principle of merger applicable to
decrees of courts would not be applicable to departmental
tribunals, and (ii) that the original order would be operative
on its own strength and did not gain greater efficacy by the
subsequent order of dismissal of the appeal or revision. in
effect, this means that even if the principle of merger were
applicable to an order of dismissed like the one in
Mohammad Nooh's case the fact would still remain that the
dismissal was before the Constitution came into force and
therefore the person dismiss could not take advantage of the
provisions of the Constitution, so far as that dismissal was
concerned. That case was not concerned with the territorial
jurisdiction of the High Court where the original authority is
within such territorial jurisdiction while the appellate
authority is not and must therefore be confined to the special
facts with which it was dealing. We have therefore no
hesitation in holding consistently with the view taken by this
Court in Mudaliar's case as well as in Messrs. Amritlal
Bhogilal's case that the order of the original authority must be
held to have merged in the order of the appellate authority in
a case like the present and it is only the order of the appellate
authority which is operative after the appeal is disposed of.
Therefore, if the appellate authority is beyond the territorial
jurisdiction of the High Court it would not be open to it to
issue a writ to the original authority which is within its
jurisdiction so long as it cannot issue a writ to the appellate
authority. It is not in dispute in this case that no writ could be
issued to the appellate authority and in the circumstances the
High Court could issue no writ even to the original authority.
We therefore allow the appeal, set aside the order of the High
Court and dismiss the writ petition with costs.
(emphasis supplied)
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Therefore, the Court held that the order of the original
authority must be held to have merged in the order of the Appellate
Authority in a case like the present and it is only the order of the Appellate
Authority which is operative after the appeal is disposed of.
19 Therefore, prior to the amendment of Article 226 and the
insertion of Article 226(2), the Hon'ble Supreme Court has specifically held
that on account of the principle of the doctrine of merger, a writ against an
order of the Appellate Authority, would lie only before the High Court
within whose territorial jurisdiction the Appellate Authority is located. This
principle would continue to hold the field today. Vide the insertion of
Article 226(2), jurisdiction was bestowed upon the High Courts to issue
writs to authorities located outside their territorial jurisdiction as long as
the cause of action arose within their territorial jurisdiction. Consequently,
even the High Court within whose jurisdiction the original lis arose could
now issue writs to the Appellate Authority located outside its territorial
jurisdiction. However, this would not in any way denude the powers of the
High Court within whose territorial jurisdiction the Appellate Authority is
located to issue writs. The fact remains that the appellate order is a
significant part of the cause of action for petitioner.
20 This has been confirmed by the co-ordinate Bench of this Court
in Kishore Rungta v/s. Punjab National Bank 14 and a Full Bench of the
14 2003 (151) E.L.T. 502 (Bom.)
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Hon'ble Madras High Court in Sanjos Jewellers v/s. Syndicate Bank15 where
it has been held that the Court would have jurisdiction when the Appellate
Authority, whose order is subject to scrutiny, is situated within its
jurisdiction and the party would have the right to choose either of the
Courts. In Sanjos Jewellers (Supra), a writ petition was filed before the
Hon'ble Madras High Court challenging an order of the Debt Recovery
Appellate Tribunal which was situated at Chennai. Respondent's contention
was that since the original adjudication proceedings happened at the Debt
Recovery Tribunal located at Bangalore, the writ petition against the order
of the Appellate Tribunal was not maintainable before the Hon'ble Madras
High Court. The Hon'ble Full Bench relied upon the decision of the Hon'ble
Supreme Court in Kusum Ingots & Alloys Ltd. (Supra) and held that the
order of the Appellate Authority constitutes a part of the cause of action
and that a writ petition against the appellate order was maintainable before
the High Court within whose territorial jurisdiction the Appellate Authority
was situated.
21 In light of the above, the present petitions are maintainable
before the Principal Seat of this High Court since the orders of the
adjudicating authorities have merged into the impugned orders of the
Revisionary Authority who is located in Mumbai.
15 2007 (5) CTC 305
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22 Dealing with the case of respondents, in our view, the stand of
Mr. Mishra and Mr. Adik on behalf of respondents in relation to forum
conveniens is not applicable to the facts and circumstances of the present
matter.
23 Relying on Kusum Ingots & Alloys Ltd. (Supra) and the
decision of the Five Judge Bench of the Delhi High Court in Sterling Agro
Industries Ltd. (Supra) it was submitted by respondents that petitioners are
unsuited by the principle of forum conveniens. This was made relying on
paragraph 30 of Kusum Ingots & Alloys Ltd. (Supra) that is quoted in
paragraph 16 above.
In our view that has no application to the facts and
circumstances of the matter at hand. In the present case, it is not that only a
small part of the cause of action arose in Mumbai. Rather the order of the
Revisionary Authority is a significant part of the cause of action of
petitioner. This is the law laid down by the Hon'ble Supreme Court in East
India Commercial Co. Ltd. (Supra).
24 In fact, the decision in Sterling Agro Industries Ltd. (Supra)
supports the case of petitioner. In paragraph 33(c), it was specifically held
that the order of the Appellate Authority constitutes a part of the cause of
action to make the writ petition maintainable in the High Court within
whose territorial jurisdiction the Appellate Authority is situated. Paragraph
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33(c) reads as under :
33(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. xxxxxxxxxxxxxxx
It was further held [as held in Kusum Ingots & Alloys Ltd.
(Supra)] that the High Court may, in its discretion, invoke the doctrine of
forum conveniens. It only overruled a previous decision of a Full Bench of
the Delhi High Court which held that the location of the Appellate
Authority is the place of forum conveniens in absolute terms. In our view,
this clearly supports the contention of petitioners that petitioners have the
right to choose to file the petitions here before the Principal Seat of this
Court and as also before the High Court or the Bench of this Court within
whose jurisdiction the original lis arose.
25 Respondents being the Union of India are located across the
entire country and it is not proper to allege forum inconvenience. What is
inconvenient in this forum was not even stated by respondents. In fact,
respondents never had a problem in defending their case before the
Revisionary Authority. If that be the case, it is not open for respondents to
raise this objection before the High Court at this stage.
26 The judgments relied upon and cited by respondents have no
application to the matter at hand. In the matter at hand, the order of the
Revisionary Authority has been passed in Mumbai and hence, clearly a
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significant portion of the cause of action arises in Mumbai. In the
compilation, many other judgments were also submitted by respondents but
were not referred to during the arguments or in the written submissions.
Hence we are not dealing with those judgments. We shall now deal with the
judgments cited by respondents :
(a) Summit Online Trade Solutions Pvt. Ltd. (Supra) :
This was a writ petition filed before the Sikkim High Court
challenging a notification issued by the Goa State Tax Department under
Goa GST Act. The High Court dismissed the writ petition on the ground
that no case was made out as to how part of cause of action arose within
the territorial limits of the High Court of Sikkim or any pleading as to how
any right has been affected within the territory of Sikkim. The Hon'ble
Supreme Court upheld the dismissal of the writ petition by the Sikkim High
Court. While upholding, the Hon'ble Supreme Court relied on the concept
of forum conveniens as held by the Hon'ble Supreme Court in Kusum Ingots
& Alloys Ltd. (Supra).
(b) Kohli Roadlines, Nagpur (Supra) :
This is a matter pertaining to a writ petition challenging a
tender floated by the Maharashtra State Power Generation Company before
the Nagpur Bench of this Court. The High Court rejected the writ petition
for absence of cause of action or even part thereof arising at the Nagpur
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Bench of this Court.
(c) Bhavendra Hashmukhlal Patadia (Supra) :
This is a matter involving an income tax notice issued by the
Orissa Income Tax authority under Section 148 of the Income Tax Act,
1961, challenged before Hon'ble Gujarat High Court. The Hon'ble Gujarat
High Court dismissed the writ petition on the ground of lack of territorial
jurisdiction. The Court held that just because the applicant is resident at
Ahmedabad, State of Gujarat, by itself, will not confer jurisdiction to his
High Court, more particularly, when the writ applicant is being assessed to
tax consistently at Cuttack.
These decisions have no application to the present matter. In
the present matter, the order of the Revisionary Authority has been passed
in Mumbai and hence, clearly a significant portion of the cause of action
arises in Mumbai.
(d) BSS Mines and Minerals Pvt. Ltd. (Supra) :
In this matter, petitioner therein withdrew his petition. It is
settled law that such orders do not contain any ratio decidendi and have no
binding precedential value.
(e) Dharampal Premchand Ltd. (Supra ) :
This matter pertains to the issue as to which High Court would
appeals against orders of the CESTAT under Section of the 35G of the
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Central Excise Act, 1944 lie.
This decision has no relevance since the present petitions relate
to the jurisdiction of this Court under Article 226 of the Constitution of
India.
(f) West Coast Ingots (P) Ltd. (Supra) :
In this case, writ petitions were filed challenging the orders of
the Settlement Commission which was situated at Delhi. In that matter,
settlement applications were filed by the assessees against show cause
notices issued in Goa. The assessees were located in Goa and the relevant
Departmental Authorities were also located in Goa. The Delhi High Court
declined to accept the writ petition and directed the assessees to approach
the High Court in whose jurisdiction the show cause notices has been
issued.
An order of the Settlement Commission stands on a wholly
different footing than an order of an Appellate Authority in appeal or
revision. The doctrine of merger, in our view, would not be applicable to
such orders of the Commission and the orders/notices do not merge into
the orders of the Commission. Hence, the decision stands on a wholly
different footing than the facts and circumstances of the present matter.
27 In the matter at hand, the ratio of the Hon'ble Supreme Court
in East India Commercial Co. Ltd. (Supra) and Sri Nasiruddin (Supra)
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would be squarely applicable. In fact, the findings of the Hon'ble Supreme
Court in paragraphs 25 and 27 of Kusum Ingots & Alloys Ltd. (Supra)
quoted in paragraph 16 above would also be squarely applicable.
28 Therefore, we hold that this Court has jurisdiction in the
present petitions.
29 The petitions stand adjourned to 6 th September 2024 for
consideration on merits.
30 Certified copy expedited.
(JITENDRA JAIN, J.) (K.R. SHRIRAM, J.)
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