Ceebros Hotels Private Limited vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 1417 Del

JUDGMENT

Vikramajit Sen, J.

Page 1752

1. The Petitioner's plans to construct a Hotel on its private land situated opposite the International Airport in St. Thomas Mount-cum-Pallavaram Cantonment, Chennai has received a set-back. Vide orders dated 15.6.1984, the GOC-in-C, Southern Command had imposed Floor Space Index (FSI) restrictions which may render the Hotel project non-viable. The contention of the Petitioner is that the power to determine the FSI is reposed in the Cantonment Board and not the GOC-in-C, Southern Command, and further that the FSI fixed by the said Officer is insufficient for the proposed five-star hotel and in variance with what has been allowed to other similarly placed Companies. The next contention of the Petitioner is that the FSI has already been related for two other companies but declined for the Petitioner. The Petitioner had initiated appropriate legal proceedings in the Madras High Court in the course of which directions were issued to the Central Government to dispose of Petitioner's application expeditiously. The application has been rejected. The Petitioner's asseveration is that there is no deficiency in the availability of either water or electricity supply and, therefore, more favorable FSI, as allowed to other persons, should have been granted to the Petitioner also.

2. The Petition has been resisted by the Respondents firstly on the grounds of lack of territorial jurisdiction, and on merits also. So far as the question of territorial jurisdiction is concerned this Court had the occasion to reflect upon the question of exercise of the territorial jurisdiction of High Courts Page 1753 in Indo Gulf Industries Ltd. v. U.P. State Industries Development Corporation, 2003 (III) AD (D) 254 : 2003 104 DLT 529. The Opinion of the Supreme Court in O.N.G.C. v. Utpal Kumar Basi, , Bhagwandas Goverdhandas Kedia v. Girdharlal Parshottamadas and Co., and ABC Laminart v. A.P. Agencies, had been applied. The view of the Division Bench in Sector Twenty One owners Welfare Association v. Air Force Naval Housing Board, (DB) had also been considered. The following passage from ABC Laminart v. A.P. Agencies, is extremely instructive -

15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have (been) performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arisen at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors.

No doubt these legal reflections were in the context of Section 20 of the Code of Civil Procedure, 1908 but that should make no appreciable difference. A reading of these decisions will show that even in respect of writ petitions the place where the cause of action arises in the principal and most Page 1754 prominent and relevant manner would determine which High Court should exercise territorial jurisdiction.

3. This question has been considered in detail by the Hon'ble Supreme Court in Union of India v. Adani Exports Ltd., . In its opinion, "each and every fact pleaded in the application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned".

4. In the case of Kusum Ingots and Alloys Ltd. v. Union of India, the Hon'ble Supreme Court has held that -

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 therefore.

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.

...

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.

In this landmark Judgment, which overruled the earlier opinion in U.P. Rashtriya Chini Mill Adhikari Parishad, the enunciation of the law in paragraph 30 above came after the Court has observed that a part of the cause of action arises at the place where the impugned Order is passed by the executive authority. In Ansal Buildwell Ltd. v. Noqrth Eastern Indira Gandhi Institute of Health and Medical Science, this Court has held that by "invoking the doctrine of forum conveniens a court may refuse to Page 1755 exercise its discretionary jurisdiction notwithstanding that some part of cause of action had arisen within the territorial jurisdiction of the Court."

5. Returning to the facts of the case in hand it will be seen that the Petitioner had itself approached the High Court of Madras on an earlier occasion. In the present case no doubt a challenge has been laid to the decision of the Central Government, but such a decision is amenable to the extraordinary jurisdiction of every High Court of this country within the boundaries of which the cause of action arises. What has to be seen is which High Court is best suited to rule on this challenge. In by considered opinion it would have to be the High Court of Madras. Apart from the fact that the immovable property in question is located within its territorial parameters, a substantial arguments have been addressed on the availability of water and electricity in the area, its proximity to the Airport and other non military institutions. The impugned Order expresses the opinion that security would be jeopardised. Courts in Delhi are severely handicapped in deciding these issues, which essentially require local knowledge also. The High Court of Madras is as well equipped as Delhi High Court to decide whether the Cantonment Board or the General Officer Commanding-in-Chief is competent to determine the FSI, and whether the impugned decision/order is legally sustainable.

6. This writ petition is, therefore, rejected on the ground that territorial jurisdiction can best be exercised by the Madras High Court, which has already been moved previously. The Petitioner shall be entitled to approach the High Court of Madras for the grievances ventilated in this petition.