Delhi High Court
Qazi Moinuddin & Ors. vs Union Of India & Ors. on 6 October, 2010
Author: S. Muralidhar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5524/2003
Date of order: October 6, 2010
QAZI MOINUDDIN & ORS ..... Petitioners
Through : Mr. Anup G. Chaudhari and
Ms. June Chaudhari,
Senior Advocates with
Mr. Ashok Mathur, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through : Mr. Sachin Datta with
Mr. Manikya Khanna, Advocates
for UOI.
CORAM: JUSTICE S. MURALIDHAR
ORDER
% 06.10.2010
1. The prayer in this writ petition by five residents of District Dhar in
Madhya Pradesh is for quashing for a direction contained in Clause 3 of
the decision dated 7th April 2003 of the Directorate General of the
Archaeological Survey of India („ASI‟) at New Delhi concerning entry
into the monument at Bhojshala, District Dhar, Madhya Pradesh.
2. In the writ petition the justification for approaching the High Court of
Delhi by five residents of District Dhar in Madhya Pradesh, in relation
to entry into a monument located also in Madhya Pradesh, is that the
Respondent ASI, whose decision is under challenge, is located within
the territorial jurisdiction of this Court.
3. Mr. Anup Chaudhari, learned Senior counsel appearing for the
Petitioners pleaded that under Article 226(1) of the Constitution, as
explained by the Constitution Bench of the Supreme Court in Lt. Col.
Khajoor Singh v. Union of India AIR 1961 SC 532, a writ petition
brought forth by a person before a High Court within whose jurisdiction
the authority whose decision is under challenge is located cannot be
declined to be entertained on the ground of forum non conveniens i.e.
on the ground that it would be more convenient or appropriate for the
writ petition to be heard by some other High Court. It is urged that a
petitioner is the dominus litus and is free to choose which Court to
approach with a writ petition as long as requirements of Article 226(1)
of the Constitution are satisfied. It is submitted that where Article
226(1) is attracted, there is no need to examine whether for the purposes
of Article 226(2) any part of the cause of action arises within the
jurisdiction of this Court. Reliance is placed on the certain observations
of the Supreme Court in Eastern Coalfilelds v Kalyan Banerjee 2008
3SCC 456.
4. The above submissions, though attractive, do not merit acceptance in
the facts and circumstances of the present case. It appears that the same
impugned order dated 7th April 2003 was challenged before the High
Court of Judicature at Jabalpur in Writ Petition (Civil) No. 4716 of
2003 titled Qazi Zakaullah v. State of Madhya Pradesh. By a detailed
judgment dated 18th September 2003 the learned Single Judge of that
High Court declined to entertain the writ petition on the ground that
"investigation has to be made in a properly constituted civil suit not in a
writ petition....". Consequently, the parties were relegated to the civil
court with the clarification that no observation in the judgment of the
High Court would influence the determination of the issues by the civil
court. It is stated that the said judgment has been challenged by way of
appeal which is pending consideration before a Division Bench of the
High Court of Madhya Pradesh.
5. It appears to this Court that when the impugned order challenged in
this writ petition has been made the subject matter of challenge before
another High Court, and a decision has been rendered by a learned
Single Judge of that High Court, which is pending consideration before
a Division Bench of that Court in appeal, it would not be appropriate
for this Court to entertain a similar challenge to the very same
impugned order. If entertained, this petition would lead to multiplicity
of the proceedings and the possibility of inconsistent orders, both of
which eventualities are best avoided.
6. Consequently, this writ petition is not entertained and is dismissed as
such leaving the Petitioners to seek other appropriate remedies as may
be available to them in law.
S. MURALIDHAR, J
OCTOBER 6, 2010
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