Article 226 – Where Must the “Action” be Instituted?

This article analyses the changes brought about by the 15th¹ and 42nd² Amendments to the Constitution of India (Constitution) that broadened the scope of writ petitions filed before the High Court/s under Article 226 of the Constitution³.

History

Prior to the establishment of the High Court/s of Bombay, Madras and Calcutta (Chartered High Courts), it was the Supreme Court/s concerned then existing, that exercised jurisdiction over these three presidency towns. Pursuant to the Indian High Courts Act, 1861⁴, the Chartered High Courts were established. By reason of being the successors to the Supreme Court/s concerned, it was only these Chartered High Courts that continued to have the power to issue what was known as “prerogative writs”, which the other High Courts across India did not then possess. With the coming about of our Constitution, and with a view to bring about parity among all High Courts across India, Article 226 was drafted with a view to grant all the High Court/s the power to issue writs within the local territories of their jurisdiction. In other words, a High Court could not issue a writ or order under Article 226 unless the person, authority or Government against whom the writ was sought was (physically) a resident of or located within the territorial jurisdiction of the High Court.

Election Commission of India v. Saka Venkata Rao⁵

The Supreme Court of India (Supreme Court) was dealing with an appeal filed by Election Commission of India (ECI) inter alia challenging the Madras High Court’s jurisdiction to have passed a writ of prohibition restraining ECI, a statutory body having its permanent office in New Delhi, from enquiring into the alleged disqualification of the respondent, a resident of Madras, from his membership to the Madras Legislative Assembly.

The preliminary objection taken by ECI before the Madras High Court was that ECI was not “within the territory in relation to which the High Court exercised jurisdiction” and therefore, the writ petition filed by Mr Rao ought not to be maintained. The High Court held that ECI, though permanently located and carrying on its activities in New Delhi, exercised its jurisdiction within the territorial limits of the Madras High Court so as to affect the rights of a resident of Madras, and therefore, ECI must be regarded as “functioning” within the territorial limits of the Madras High Court, thus being amenable to its jurisdiction under Article 226.

To defend the impugned order before the Supreme Court, the counsel for Mr Rao contended that the Madras High Court had jurisdiction to issue a writ to ECI at New Delhi because the question referred to it for decision related to Mr Rao’s right to sit and vote in the legislative assembly at Madras and the parties to the dispute also resided in Madras. Such a position was analogous to the court exercising jurisdiction over persons outside the limits of its jurisdiction, provided that the cause of action arose within those limits.

The Supreme Court rejected the above argument by observing that the rule of “cause of action attracts jurisdiction” is in suits and is based on statutory enactment and cannot apply to writs under Article 226 which make no reference to any cause of action or where it arises but insists on the presence of the person or authority “within the territories” in relation to which the High Court exercises jurisdiction.

Accordingly, ECI’s appeal was allowed, with the Supreme Court holding that the Madras High Court was not competent to issue any prerogative writ to ECI under Article 226.

15th and 42nd Amendments to the Constitution

The above ruling was nullified by the 15th Amendment to the Constitution, with the insertion of clause (1-A) which conferred on the High Court/s, jurisdiction to also issue writs in relation to the territories within which the cause of action arises, wholly or in part, notwithstanding that the seat of such Government, authority or the residence of such person is not within those territories. This was followed by the 42nd Amendment which substituted Article 226 with a mere renumbering of its internal clauses.

Interpretation of High Courts

Over the years, the High Courts and the Supreme Court have interpretated what constitutes “cause of action” under Article 226(2) and the law laid down in this regard has been analysed in detail and summed up by me as under:

(1) In ONGC v. Utpal Kumar Basu⁶ the Supreme Court was dealing with a tender matter, issued by way of a public advertisement in the newspaper.

Facts: Oil and Natural Gas Commission’s (ONGC’s) consultant — Engineers India Ltd. (EIL) — issued a tender, for setting up a unit for ONGC in its gas processing plant at Hazira, Gujarat, by way of a public advertisement in various newspapers. The offers were to be communicated to EIL in New Delhi. NICCO, which had its registered office in Calcutta, read this advertisement in the Times of India newspaper, circulated in Calcutta. The final decision on the tender was to be taken by a Committee situated in New Delhi. All bids were scrutinised in New Delhi. NICCO’s bid was rejected. Despite NICCO making subsequent representations before the Committee, there was no change in result. The final decision was taken in New Delhi, and the tender was awarded to CIMMCO. NICCO filed a writ petition before the Calcutta High Court challenging the rejection of its bid and on the plea that a part of the cause of action had arisen within the territorial jurisdiction of the Calcutta High Court, viz. (i) that it became aware of the contract on reading the advertisement in Calcutta; (ii) that it submitted its bid from Calcutta; and (iii) on becoming aware of its rejection, it made representations demanding justice from Calcutta. The Calcutta High Court entertained the petition and directed ONGC to consider NICCO’s bid. This decision was challenged by ONGC before the Supreme Court.

Held: The Supreme Court held that merely because NICCO read the advertisement in Calcutta, submitted its offer from Calcutta, and made representations from Calcutta, would not constitute facts forming an integral part of the cause of action. In fact, the execution of the contract was to be carried out in Gujarat. Moreover, NICCO had not invoked the jurisdiction of the Calcutta High Court bona fide. Accordingly, the Supreme Court set aside the order of the Calcutta High Court and disposed of the writ petition for want of jurisdiction and imposed exemplary costs on NICCO.

(2) In Damomal Kauromal Raisingani v. Union of India⁷, the Bombay High Court was dealing with a writ petition, impugning an order passed by the Additional Settlement Commissioner reducing the valuation of the petitioner’s immovable property.

Facts: The petitioner was a resident of Maharashtra. The property in question was situated in West Pakistan. The hearing before the Additional Settlement Commissioner took place in Bombay. The order passed by the Additional Settlement Commissioner was challenged by the petitioner by way of a writ petitioner before the Bombay High Court. The respondent argued that the Commissioner’s office was situated in New Delhi. Therefore, Bombay High Court had no jurisdiction to entertain the petition.

Held: The Bombay High Court held that the effect of the Commissioner’s order fell on the petitioner who resides in Maharashtra. The proceedings that would be initiated against the petitioner as a consequence of the impugned order would be in Maharashtra. Therefore, it was held that the place where the consequences of the order fell on the petitioner would be a place where at least part of the cause of action would arise. Therefore, the Bombay High Court has jurisdiction to entertain the petition.

(3) In Union of India v. Adani Exports Ltd.⁸, the Supreme Court was dealing with a passbook scheme and the benefits thereunder which stemmed from an export import policy issued by the Union of India.

Facts: The respondent was carrying on business from Ahmedabad. The respondent contended the following facts to establish territorial jurisdiction of the Gujarat High Court, viz. that the documents for export-import were sent from Ahmedabad; the payments were also made from Ahmedabad; the credit of duty was claimed from Ahmedabad; the non-grant of utilisation credit in the pass-book would have affected the respondent’s business at Ahmedabad; the respondent’s regional offices were located in Ahmedabad; the bank guarantee and the bond were executed in Ahmedabad. Therefore, a substantial part of the cause of action had arisen in Ahmedabad. This was opposed by Union of India contending that the passbook licence was issued at Chennai by the designated authority at Chennai, the transactions concerning the passbook were made from Chennai Port and the cause of action was lying in Chennai. Therefore, the Chennai High Court had jurisdiction.

Held: The Supreme Court held that none of the aforementioned facts contended by the respondent was in any way connected with the reliefs sought for by the respondent in order to constitute the cause of action at Ahmedabad. On the contrary, the passbook in question was issued by the authority concerned in Chennai. The authority concerned in charge of matters concerning the passbook scheme was in Chennai. The entries in the passbook are made by authorities in Chennai. The export import took place at the Chennai port. The subject-matter of the case is the denial of a benefit under the passbook scheme. The bank guarantee and the bond are not part of this scheme and as such, have no nexus to the dispute. It was held that the facts pleaded must have a nexus to the lis involved. Facts which have no bearing to the lis, do not give rise to the cause of action so as to confer territorial jurisdiction.

4. In Kusum Ingots & Alloys Ltd. v. Union of India⁹, the Supreme Court was dealing with a challenge to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002¹⁰.

Facts: The appellant — a company registered in Mumbai, had obtained a loan from State Bank of India (SBI), Bhopal Branch. SBI issued notice of repayment of the loan from Bhopal purportedly in terms of the Sarfaesi Act. The appellant challenged the vires of the Act and contended that since the constitutionality of a parliamentary Act was in question, the High Court of Delhi had the requisite jurisdiction to entertain the writ petition. On the other hand, the respondent contended that since no cause of action arose within the territorial jurisdiction of the High Court of Delhi, the writ ought not to be entertained.

Held: The Supreme Court held that keeping in view Article 226(2), even if a small fraction of the cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. The passing of a legislation by itself does not confer any such right to file a writ petition, unless a cause of action arises therefor. The facts pleaded must have a nexus on the basis of which a prayer can be granted. Facts which have nothing to do with the prayer cannot be said to give rise to a cause of action which would confer jurisdiction. A writ petition questioning the constitutionality of a parliamentary act shall not be maintainable in the High Court of Delhi merely because the seat of the Union of India is in Delhi. The situs of office of Parliament would not by itself constitute any cause of action. Accordingly, the Supreme Court dismissed the appeal.

5. In Eastern Coalfields Ltd. v. Kalyan Banerjee¹¹, the Supreme Court was dealing with a matter concerning termination of employment.

Facts: The respondent was an employee of the appellant Company which was situated in Jharkhand. The respondent’s services were terminated in Jharkhand. The respondent filed a writ petition challenging his termination before the Calcutta High Court. The appellant raised a preliminary objection, challenging the maintainability of the writ petition before the Calcutta High Court. The respondent argued that since the company had its registered office in Calcutta, the Calcutta High Court has the territorial jurisdiction to entertain the writ petition. The Single Judge did not agree with the respondent and referred the matter to the Division Bench. The Division Bench opined that simply because the company had its registered office in Calcutta, that would not give jurisdiction to the Calcutta High Court to entertain the petition, unless the cause of action has arisen within its territorial jurisdiction. The matter went up in appeal before the Supreme Court.

Held: The Supreme Court held that “cause of action” for the purposes of Article 226(2) must be assigned the same meaning as envisaged under Section 20(c) of the Civil Procedure Code, 1908¹² — which is, a bundle of facts which are required to be proved and what is necessary to prove is material facts whereupon a writ petition can be allowed. The Court held that since the cause of action had arisen in Jharkhand, merely because the registered office of the company was in Calcutta will not by itself confer jurisdiction upon the Calcutta High Court, particularly when the registered office had nothing to do with the order of termination.

6. In Alchemist Ltd. v. State Bank of Sikkim¹³, the Supreme Court was dealing with an offer for partnership in State Bank of Sikkim,

Facts: The appellant had its registered office in Chandigarh. Respondent 1 (R-1) was the State Bank of Sikkim. Respondent 2 (R-2) was the State of Sikkim. R-2 issued an advertisement in the newspaper and invited offers for persons interested in the disinvestment of R-2 from R-1. The interested parties were required to send their offers to R-1’s headquarters in Gangtok, Sikkim. The appellate contended that initial acceptance of its offer was communicated to it in Chandigarh; the appellate created a fixed deposit with State Bank of India at Chandigarh; the negotiations were held in Chandigarh; and the appellate received communication at Chandigarh that it was not selected. Accordingly, the appellate filed a writ before the Punjab & Haryana High Court challenging this communication. The appellant argued that the effect of this communication was felt by him in Chandigarh. However, the Punjab & Haryana High Court dismissed the writ petition holding that it had no jurisdiction to entertain the same.

Held: The Supreme Court held that the High Court was justified in dismissing the writ petition on the ground of want of territorial jurisdiction. The real test is whether particular facts are of substance and can be said to material, integral or an essential part of the lis between the parties. If it is, it forms part of the cause of action. However, in the present case, none of the contentions urged by the appellant to constitute “cause of action” under Article 226(2) fall within these parameters.

7. In State of Goa v. Summit Online Trade Solutions (P) Ltd.¹⁴, the Supreme Court was dealing with a challenge to a notification issued by the Government of Goa under the Goa Goods and Services Tax Act, 2017¹⁵ seeking for a declaration that the impugned notification was unconstitutional and illegal.

Facts: Summit Online Trade Solution (Company) filed a writ petition before the High Court of Sikkim challenging the impugned notification. The State of Goa raised a preliminary objection challenging the jurisdiction of the High Court of Sikkim to entertain the petition on the ground that no part of the cause of action had arisen in Sikkim. In support of its contention that the High Court of Sikkim had the territorial jurisdiction to entertain the petition, the company contended that: (i) the cause of action had arisen in Sikkim only; and (ii) both, the petitioner and the respondents were located within the territorial jurisdiction of the High Court of Sikkim. The High Court held in favour of the Company and held that at least a part of the cause of action had arisen in Sikkim. The State of Goa filed an appeal challenging this decision before the Supreme Court.

Held: The Supreme Court held that the tax was levied by the State of Goa, in respect of a business that is being carried on in Goa. Such tax is payable by the Company not in respect of carrying on of any business in Sikkim. Merely because the Company has its registered office in Gangtok, Sikkim, the same by itself does not form an integral part of the cause of action authorising the Company to approach the High Court of Sikkim. The immediate civil consequences arising from the impugned notification is that the Company has to pay taxes to the Government of Goa. The liability arises for a specific business in Goa. No adverse consequences of the impugned notification were felt within the jurisdiction of the High Court of Sikkim. The Supreme Court proceeded to hold that the High Court ought to have dismissed the Company’s petition on the above grounds. Further, placing reliance on the Supreme Court’s judgment in Kusum Ingots case¹⁶, the Court held that even assuming that a slender part of the cause of action had arisen in Sikkim, the concept of forum conveniens ought to have been considered by the High Court.

8. In Asianet Star Communications (P) Ltd. v. CCI¹⁷, the Division Bench of the Bombay High Court was dealing with a writ petition impugning an order passed by the Competition Commission of India (CCI) under Section 26(1) of the Competition Act, 2002¹⁸ (Act).

Facts: The appellant had originally filed an information under Section 19(1)(a) of the Act alleging contravention of the provisions of Section 4 of the Act. The appellant Star India (P) Ltd. had entered into a broadcasting agreement whereunder the appellant was authorised to supply the channels of Star India to customers. The appellant’s grievance was that Star India was providing a bouquet of channels to the appellant’s competitors at lesser prices resulting in denial of market access and amounting to unfair pricing. This resulted in a significant loss of consumer base to the appellant. CCI directed the Director General (DG) to cause an investigation into the matter. This order was impugned by way of the writ petition filed before the Bombay High Court.

The counsel for CCI objected to the jurisdiction of the Bombay High Court to entertain the petition on the following grounds: (i) the impugned acts of Commission/omission were in the State of Kerala; (ii) effect of the impugned order would not be felt beyond Kerala; (iii) the fact that the operations are outside Kerala and that the registered office of the appellant being in Maharashtra are of no avail; (iv) the situs of the appellant’s office, in Maharashtra, can never be the basis to invoke the territorial jurisdiction of the Bombay High Court over a matter relating to abuse in the territory of State of Kerala; (v) even if payments were received in bank accounts situated in Maharashtra, it is of no avail in the present case as the proceedings are not a money claim; (vi) in this case, proceedings under the Act were initiated in New Delhi; and (vii) CCI passed the impugned order in New Delhi and the office of the DG is at New Delhi (where the investigation was conducted).

On the other hand, the counsel for the petitioners submitted that: (i) the effective consequences of the impugned order were felt by the appellant in Maharashtra; (ii) CCI is a national regulatory body having jurisdiction across India; (iii) agreements were negotiated and sanctioned by the appellant’s office in Maharashtra; (iv) payments were received in the appellant’s bank accounts in Maharashtra; and (v) the appellant’s registered office is situated in Maharashtra.

Held: The Bombay High Court held that the identification of the relevant geographical market or territoriality is the statutory embodied feature in the Act and is foundational to any inquiry under the Act. Merely because CCI is a national authority, having jurisdiction all over India, would not be sufficient to invoke territorial jurisdiction of the Bombay High Court. The “geographical market” is described under the Act, which in this case is the State of Kerala based on the complaint and the alleged commission of anti-competitive acts. The place of work of the appellant and/or respondent may not be of much relevance in deciding the jurisdictional aspect. The determinative factor is the place of accrual of cause of action. The agreement was for the geographical area of Kerala. Infringement alleged is in respect of business activity within Kerala. Even if any orders are passed, no part of business activity in Maharashtra will be affected. The mere fact that business is carried on in a particular place will not confer jurisdiction unless it is shown that the place of business is the integral part of the business. Accordingly, the Bombay High Court was not inclined to entertain the writ petition on the ground of lack of territorial jurisdiction.

(9) In Eldyne Electro Systems (P) Ltd. v. Union of India¹⁹, the Division Bench of the Calcutta High Court was dealing with a case of temporary delisting of an approved vendor of the Railways.

Facts: Being aggrieved by the delisting letter, Eldyne Electro Systems Pvt. Ltd. (Eldyne) filed a writ petition before the Single Bench of the Calcutta High Court seeking for the issuance of a writ of mandamus commanding the respondents to set aside the delisting order. The Single Bench dismissed the writ petition by holding that, merely because Eldyne had its registered office in Calcutta, or that it had obtained finance from banks in Calcutta, or by impleading Railways’ authorities having their offices in Calcutta, will not ipso facto confer jurisdiction on the Calcutta High Court, especially when a substantial, integral and the principal cause of action occurred at Lucknow, viz. the supply of equipment being made in Lucknow, the contract for supply of the equipment being executed in Lucknow and the payment for such supply being made in Lucknow. Accordingly, the Single Bench held that in the facts and circumstances of the case, the Calcutta High Court had no territorial jurisdiction to entertain the matter. Eldyne filed an appeal before the Division Bench of the Calcutta High Court.

Held: The Division Bench set aside the Single Judge’s order by holding that there was no contract executed between Eldyne and the Railways; further, there was nothing on record to show that supply was restricted only to Lucknow, or that payments were made only from Lucknow. On the contrary, Eldyne was required to supply the equipment to all the 18 zones of the Railways situated all across the country. The inspection of Eldyne’s equipment would be conducted by the Railways at any of Eldyne’s premises where it is in use or at the place of manufacture. Further, Eldyne received purchase orders from tenders pertaining to different Railway zones at its registered office in Calcutta. Therefore, it cannot be said that payments for these purchase orders were made only from Lucknow. The area of work for Eldyne was not confined only to Lucknow but throughout the 18 zones of Railways. Therefore, it cannot be concluded with certainty that the integral part of the cause of action arose exclusively at Lucknow, just because the order of listing was issued from Lucknow. The Court also held that the order for delisting was served upon Eldyne at its registered office in Calcutta. Such order affected Eldyne’s legal rights and had an effect on Eldyne’s business being run from its registered office in Calcutta. The order of delisting became effective only upon it being communicated and served on Eldyne. Therefore, a part of the cause of action had arisen at the place of communication, that is within the limits of the Calcutta High Court.

10. In Community Action for Rural Development v. Ministry of Women & Child Development²⁰, the Madras High Court was dealing with a challenge to a black-listing order passed against an NGO which was set up for charitable work for the benefit of Women Self Help Groups.

Facts: The respondent was an Apex Micro Credit Organisation set up by the Government of India to give micro loans to the poor women in unorganised sectors. The petitioner was one such NGO through which the respondent would distribute loans to its beneficiaries. Due to certain defaults in re-payment to the respondent by the petitioner, the respondent black listed the petitioner and debarred the petitioner from availing any future financial assistance. The petitioner challenged the black-listing order before the Madras High Court. The respondent took a preliminary objection to the maintainability of the petition on the grounds that the entire cause of action arose within the jurisdiction of the High Court of Delhi.

Held: The Madras High Court held that the order of blacklisting was sent to the petitioner’s address in Tamil Nadu and the same was received by the petitioner in Tamil Nadu. As such, a part of the cause of action had arisen within the territorial jurisdiction of the Madras High Court and therefore, the Madras High Court had the jurisdiction to entertain the present petition.

Conclusion

The upshot being that even if a small fraction of the cause of action accrues within the jurisdiction of a particular court, that court will have the territorial jurisdiction to entertain the matter. And, in order to determine what constitutes “cause of action”, one must carefully analyse only the relevant facts which have a nexus to the relief sought; facts which have nothing to do with the reliefs cannot be said to give rise to a cause of action which would confer jurisdiction. Broadly speaking, it is the place where the consequences/effects of the impugned action is felt that gives rise to at least a part of the cause of action. Further, if a part of the cause of action arises within one or the other High Court, it will be open to the litigant, who is the dominus litis, to choose his forum — simply by reason of the jurisdiction of that court being attracted by part of the cause of action having arisen within its jurisdiction.