JUDGMENT
Vikramajit Sen, J.
Page 1983
1. The prayers in this writ petition, inter alia, are for the release of withheld payment of concession of an allegedly ‘undisputed’ amount of Rs. 3,82,13,900/- and disputed amount of Rs. 1,02,97,800/- to the Petitioner, together with interest and costs. These amounts are principally in the nature of a subsidy which is granted for the sale and supply of fertilizer. In 1999 the Government of India had set up an Enquiry and directed the Central Investigating Department, U.P. to submit its Report in this context. It was found that the Petitioner’s Unit had been closed in 1999; and the land, building, plant, machinery and other assets were sold in that year itself. It is vehemently submitted by Mr. Jayant Bhushan, learned Senior counsel for the Petition r, that the Respondents Officers verified and approved the sale and distribution of fertilizer manufactured by the Petitioner. However, at the present juncture, the procurement and purchase of raw material, viz. mainly rock phosphate, has been reje ted by the Respondents on the grounds that the supplies could not be traced out. Criminal cases were initiated against the Petitioner. The Report was submitted in May, 2002. An investigation appears to have restarted thereafter. Shri Ajay Gupta, the Managing Director of the Petitioner, had been taken into custody. Mrs. Gupta was also named in the 2003 complaint. In 2004 the District Judge, Ghaziabad passed an interim order but those proceedings are still pending. The allegation is that the proceedings are being deliberately protracted by the Officers of the Respondents.
2. The first question which arises is whether this Court ought to exercise territorial jurisdiction in the matter. The contention of Mr. Bhushan is that the final decision has to be taken by the Ministry of Agriculture and Secretary and/or Ministry of Fertilizer and Chemicals. However, it needs to be borne in mind that apart from this factor. the entire cause of action and all events germane and central to the dispute have transpired in Uttar Pradesh.
3. It is too late in the day to contend that merely because the Union of India has its headquarters in Delhi, Courts located in the Capital can invariably properly exercise jurisdiction over every dispute where it has been imp leaded as a party. Assuming for the sake of arguments that a part of the cause of action has arisen in New Delhi, I favor the opinion that this Court should abjure from exercising jurisdiction since there are other Courts which are better suited to entertain the disputes that have been raised in this Petition (see Gupta Sanitary Stores v. Union of India and Anr., ). The decision in Patel Roadways Limited Bombay v. Prasad Trading Company, Page 1984 is that if a Corporation has a subordinate office in the place where the cause of action arises, litigation must be commenced in that place alone, regardless of apparently wider enabling provision in Section 20. The Court adopted a realistic, businesslike and expedient approach in opining that-
“It would be a great hardship if, in spite of the Corporation having a subordinate office at the place where the cause of action arises (with which in all probability the plaintiff has had dealings), such plaintiff is to be compelled to travel to t
e place where the Corporation has its principal place. That place should be convenient to the plaintiff; and since the Corporation has an office at such place, it will also be under no disadvantage”.
The significance of this Judgment is that it restricts jurisdiction, whether a contractual clause of this nature exists or not, to the particular place where the cause of action has substantially arisen, overruling other places which may have jurisdiction under Section 20 of the CPC. This rationale commands itself even in the context of Article 226 of the Constitution.
4. In Sector Twenty One owners Welfare Association v. Air Force Naval Housing Board and Ors. 65(1997) DLT 81(DB), a Division Bench of this Court has held that a trivial or insignificant part of the cause of action arising at a particular place would not be enough to confer writ jurisdiction on the court to entertain the lis. The Division Bench deduced from various precedents that the emphasis had shifted from the residence or location of the person or authority sought to be proceeded against, to the sinus of the accrual of cause of action. There is no reason why the observations pertaining to writ petitions should not be extrapolated and inter changed between suits and writ petitioners. The Bench held as follows :-
“13. The law as reflected by the above-said decisions is that the emphasis has shifted from the residence or location of the person or authority sought to be proceeded against to the situs of the accrual of cause of action wholly or in part. It is also clear that a trivial or insignificant part of the cause of action arising at a particular place would be not enough to confer writ jurisdiction; it is the cause of action mainly and substantially arising at a place which would be determinating action ma nly and substantially arising at a place which would be determinating factor of territorial jurisdiction. So also it shall have to be kept in view who are the real persons or authorities sought to be proceeded against or against whom the writ to be issue by the Court would run. Joining to proforma or anciliary parties and certainly not the joining of unnecessary parties, would be relevant for the purposes of Article 226.
14. Reverting back to the case at hand, it is clear that the cause of action has wholly arisen in NOIDA within the State of U.P. The principal and substantial grievance of the petitioner-association is against the respondents No. 2 and 3 though incidental ly, the respondent No. 1 may also be required to be bound by the writ. The reverse is not correct. The writ, if any, to be issued by the Court would not serve any purpose if issued against respondent No. 1 alone. In the matter of registration of the sale Page 1985 deed-cum-sub-lease deed merely because a document can be registered at Delhi by virtue of Section 30(2) of the Registration Act, territorial jurisdiction in the Courts at Delhi cannot be inferred. Moreover, the petitioner-association is already having some litigation before the Courts of U.P. And at one point of time the Delhi High Court had declined to entertain the petitioner-association’s writ for want of territorial jurisdiction in Delhi.”
5. In Oil and Natural Gas Commission v. Utpal Kumar Basu and Ors. , , where certain works were to be executed in the State of Gujarat, the advertisement inviting tenders was published in the Times of India, which was read by the contractor at Calcutta, the contractor submitted the offer from Calcutta, made representation from Calcutta, received a Reply at Calcutta and challenged the action of ONGC in rejecting its tender before the Calcutta High Court by way of a writ petition, which was entertained by the High Court. The Supreme Court held that the Calcutta High Court had no jurisdiction to deal with the matter. While setting aside the impugned decision, the Supreme Court observed as follows:-
“8. From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO , it became aw are of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently. When it learn that it was considered ineligible it sent representations, including fax messages, to EIL, ONGC, etc. at New Delhi, demanding justice. As stated earlier, the Steering Committee finally rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi on January 27, 1993. Therefore, broadly speaking, NITCO claims that a part of the cause of action arose within the jurisdiction of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisements itself mentioned that the tenders should be submitted at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi Of course, the execution of the contract work was to be carried out at Hazira in Gujrat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opini n, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax mess ge of January 15, 1993, can not be construed as conveying rejections of the offer as that fact occurred on January 27, 1993, We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a par of the cause of action arose within the jurisdiction of the Calcutta High Court….
Page 1986
12… Notwithstanding the strong observations made by this Court in the aforesaid decisions and in the earlier decisions referred to therein, we are distressed that the High Court of Calcutta persists in exercising jurisdiction even in cases where no art of the cause of action arose within its territorial jurisdiction. It is indeed a great pity that one of the premier High Courts of the country should appear to have developed a tendency to assume jurisdiction on the sole ground that the petitioner be ore it resides in or carries on business from a registered office in the State of West Bengal. We feel all the more pained that notwithstanding the observations of this Court made time and again, some of the learned Judges continue to betray that tendenc only recently while disposing of appeals arising out of SLP Nos. 10065-66 of 1993, Aligarh Muslim University and Anr. v. Vinny Engineering Enterprises (P) Ltd. and Anr., this Court observed:
“We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction.”
In that case, the contract in question was executed at Aligarh, the construction work was to be carried out at Aligarh, the contracts provided that in the event of dispute the Aligarh Court alone will have jurisdiction, the arb
ator was appointed at Al igarh and was to function at Aligarh and yet merely because the respondent was a Calcutta based firm, it instituted proceedings in the Calcutta High Court and the High Court exercised jurisdiction where it had none whatsoever. It must be remembered that the image and prestige of a Court depends on how the members of that institution conduct themselves. If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the Court, certain members of the Court would be will ng to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said Court, litigants would seek to abuse the process by carrying the cause before such members living rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule . We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation”
6. Primacy has been given to the place where the cause of action has substantially arisen, as is evident from the decision of the Supreme Court in South East Asia Shipping Co. Ltd v. Nav Bharat Enterprises Pvt. Ltd., . The admitted position was that performance of the obligations and liabilities under the contract was to be carried out in Bombay. The Apex Court found it wholly irrelevant that the subject Bank Guarantee had been executed at Delhi and transmitted for performance t Bombay and held that Delhi Courts did not possess jurisdiction to decide the dispute.
Page 1987
7. An analysis of the various pronouncements of the Supreme Court reveals that even though the express terms of Section 20 of the CPC permit the filing of a suit against a Corporation at its principal office, preeminence has been accorded to the place w here the cause of action had substantially arisen, from amongst those places where it has incidentally or partially arisen. Whilst the Supreme Court has indubitably enumerated in ABC Laminart vs A.P. Agencies, the several places where the cause of action could be seen to have arisen, this was done primarily to investigate and determine whether the place to which jurisdiction had been restricted, by ousting all others itself, enjoyed jurisdiction. The position that obt ins today is that primacy is accorded to the place where the cause of action substantially arises. The following passage thereof 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 intimatio 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 he 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 arise 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.
8. This question has been considered in detail by the Supreme Court in Union of India v. Adani Exports Ltd., AIR 2002 SC-
“126. 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 Page 1988 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’.
9. 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 had observed that a part of the cause of action arises at the place whe e the impugned Order is passed by the executive Authority. In Ansal Buildwell Ltd v. North Eastern Indira Gandhi Institute of Health and Medical Science, 118 (2005) DLT 274 this Court has held that by ‘invoking the doctrine of forum conveniens a court may refuse to exercise its discretionary jurisdiction notwithstanding that some part of cause of action had arisen within the territorial jurisdiction of the Court.”
10. Reverting to the facts of the present case the events which have led to a dispute between the parties have arisen in the State of Uttar Pradesh. The Authority which is principally and primarily concerned with the dispute is located in Lucknow, U. P. The Union of India resides and transacts its affairs in every part of India. The High Court of Judicature at Allahabad or Bench at Page 1989 Lucknow can effectively pass orders not only against the Authorities located within its territories but also against the Union of India. It is those Courts, therefore, which are in the best position to consider the present dispute. They are the forum conveniens
11. At this stage Mr. Bhushan has relied on the decision in Union of India v. Brij Fertilizers Pvt. Ltd., and in particular to the following paragraph thereof.
“6. Yet the question is, could it furnish material for rejecting the claim of respondents and withholding their subsidy? The learned Additional Solicitor General urged that the non-release of subsidy was not based, solely, on the report of PDIL but on bas s of input cost data supplied by the manufacturers which indicated that on basis of analysis of raw material inputs provided by the respondents the manufacturers could not have produced SSP of 16% water soluble P2O5. This assumption appears to be unfound d for more than one reason. Under the Control Order there is a detailed procedure provided for carrying out test to find out if the fertiliser produced was of specified standard. It is not disputed that no such test as provided was every carried out by any authority. Rather the report submitted by the inspectors appointed under the Control Order, indicates that the fertiliser manufactured by the respondent was standard. We are not willing to accept the submission of the Additional Solicitor General that these reports were incorrect and have been obtained through the connivance of the official machinery. There is no material on record to indicate that the Government at any point of time doubted the correctness of the reports or initiated any proceedings against any inspector or any officer for giving a wrong or incorrect certificate. In the absence of any evidence on record it is not possible to draw an inference against the authenticity of the reports which have been given by the authority empowered nder the Order. It is not the claim of the department that at any point of time prior to submission of the PDIL report any step was taken or the Government ever required the inspectors to find out if the manufacture carried on by respondents was in accor ance with law and rules. To discard the certificate issued by the inspector in the circumstances would be arbitrary without any valid reason. Mr. Bhushan has also emphasised the fact that the Delhi High Court had exercised jurisdiction in that dispute. In the first place the question whether it was proper and expedient for this Court to entertain a writ petition on the ground of existence of territorial jurisdiction (or lack of it) had not been raised or considered in that litigation. Secondly, the dispute before the Supreme Court concerned or centered on the certification issued by the Inspectors of the U.P. Government. The criminal procee ings which are presently pending are based on the allegation that purchase of raw material, namely rock phosphate, had not taken place at all. It is, therefore, not entirely correct that the present dispute stand fully covered by the decision in the Case of Brij Fertilizers. I am of the considered opinion that this Court ought not to exercise territorial jurisdiction.
Page 1990
12. Mr. Bhushan had briefly relied on Article 226(2) of the Constitution in a vain attempt to preserve the territorial jurisdict ion of this Court. On a reading of Article 226 of the Constitution it will be abundantly clear that without the next following provision, a High Court may not have been empowered to issue a writ or order against a party which is not located wit in the ordinary territorial limits of that High Court. The power to issue writs against any person or Authority or Government even beyond the territorial jurisdiction of any High Court is no longer debatable. The rider or pre-requisite to the exerci e of such power is that the cause of action must arise within the territories of that particular High Court. It does not logically follow, however, that if the cause of action, wholly or in part, arises within the territories over which that High Cou t holds sway, it must exercise that power rather than directing the Petitioner to seek his remedy in any other High Court which is better suited to exercise jurisdiction for the reason that the predominant, substantial or significant part of the caus of action arises in that Court. In other words any High Court is justified in exercising powers under Article 226 either if the person, Authority or Government is located within its territories or if the substantial and significant part of the ca se of action has arisen within its territories. The rationale of Section 20 of the Code of Civil Procedure would, therefore, also apply to Article 226(2). A part of the cause of action would indubitably arise at the place where a person receives an adverse order, under the ordinary principles of law. In C.B.I. Anti Corruption Branch, Mumbai v. Narayan Diwakar, this Order or message contained a request of the Respondent to meet the CBI Inspector at Bombay in connection with the investigation of First Information Report (F.I.R.) registered in Bombay. Although the decision was given on a concession by learned counsel for the party supporting the exercise of jurisdiction by the Guwahati High Court, in t e opinion of the Supreme Court the writ petition filed in that High Court was not maintainable. Accordingly, since I am of the opinion that the substantial or significant part of the cause of action has arisen in Uttar Pradesh, merely because the fi al say is that of the Central Government, Article 226(2) does not require this court to exercise the extraordinary jurisdiction vested in it under Article 226 of the Constitution.”
13. Annexure P-II is the communication from the Government of India, Ministry of Chemical and Fertilizers dated 28.9.2001 i.e. four years ago. It records, inter alia, that some parties had ‘gone to the extent of showing procurement of rock phosphate f rom non-existent sources. In respect of all such units, majority of the SSP production was based on purchase of rock phosphate which was found to be either false or could not be verified by the concerned investigating agency’. The Petitioner finds men ion as one of these units. This communication ought to have been assailed by the Petitioner with expedition. Any investigation into this dispute at this belated stage is inappropriate on the principle of laches. A similar communication was addressed t the Advocate of the Petitioner stating, inter alia, that ‘the factory and the source from where raw materials were shown to be procured by Page 1991 M/s. Vijay Fertilizers are both owned by the same person. Not only procurement of raw materials and Chemicals has been from non-existent sources, but even purchase of other material/Chemicals have been shown as purchase of rock phosphate. The U.P. Government has already filed F.I.R. against Category-C units. Concession claims of Category-C units are to be rocessed only after the outcome of legal/penal proceedings’. Even this communication is almost three years old. The present proceedings have obviously been filed with a view to opening yet another legal front, the previous ones manifesting futile efforts of the Petitioner. I decline to exercise jurisdiction also for the reason that the Petition is barred by laches.
14. This is, therefore, not a fit case warranting exercise of the extraordinary power vested in this Court under Article 226 of the Constitution. The writ petition is dismissed accordingly.