Article 226 and Letters Patent. Writ in the Original Jurisdiction of the Hon'ble High Court at Calcutta.

Article 226 and Letters Patent. Writ in the Original Jurisdiction of the Hon'ble High Court at Calcutta. 226 Article, writ petition under article 226, writ petition under article 226. EFFECT OF THE JUDGEMENT IN THE UNREPORTED CASE OF MESSRS. ARTHUR BUTLER & CO MUZAFFARPUR LTD. AND ANOTHER—V—UNION OF INDIA AND OTHERS 1. The above judgement has been extracted while explaining territorial jurisdiction and the effect of instituting a writ petition in the Original Side of this Hon'ble Court, at page 534 of the Commentaries of the Appellate Side Rules, 3rd Edition, edited by Justice R. Bhattacharya (Ret’d) and revised by Protik Prokash Banerji, Advocate, at page 534 of the opus cited. The judgement which was rendered in Appeal No.258 of 1973, is sourced in the case of University of Calcutta and Others—v—Shyamal Kumar Das, reported in (1984) 2 CLJ 302. (DB) - 2. However, a considerably larger extract is to be found in the case of U.P. Electric Supply Co. Ltd. (In Liquidation)—v—Industrial Tribunal (IIII) rendered by the Hon'ble Division Bench and reported in (1975) ILR 1 Calcutta 363. Its photocopy in MS Word format is attached. Here the Hon'ble Court has not only quoted extensively from the judgement in the above unreported case, but in this later case, the Hon'ble Court has gone on to explain the effect of the judgement. It may be considered as an integral part of this note. 3. Very briefly, the unreported division Bench Judgement was on the basis of Article 226(1) of the Constitution of India and the Rules of this Hon'ble Court relating to applications under Article 226 as they stood before the amendment by which Article 226(1A) later on renumbered as Article 226(2) of the Constitution of India. - 4. In this context, the Hon'ble Division Bench in the later judgement whose copy is attached (UP Electric Supply Co. Ltd.) has made it very clear that the said unreported judgement is only on the basis of the situs of the office of the respondents and not on the basis of where the cause of action arose, wholly or in part. - 5. While the unreported judgement, on the basis of Article 226(1) of the Constitution of India laid down that where an Hon'ble Judge issues a Rule on an application marked “Original Side” which (according to the situs theory of offices of the respondents) ought to have been marked “Appellate Side”, it is a mere irregularity, and not a nullity, since the power to issue directions, orders and/or writs under Article 226 of the Constitution of India does not emanate from the Rules of this Hon'ble Court but the Constitution of India itself, and the rules have been made in this regard as a convenience, in the later reported judgements including UP Electric Supply Co. Ltd., their Lordships made it amply clear that as yet no rules have been made to work out Article 226(1A) id est, Article 226(2) of the Constitution of India as it is now styled. Their Lordships in UP Electric Supply Co. Ltd., were pleased to categorically hold as follows: - - “15. The case before the Division Bench presided over by B.C. Mitra J. was one under Article 226(1) of the Constitution. The case before us is one under Article 226(1A). We have already said that the Rules that were framed by this Court were Rules under Article 226(1) and not under Article 226(1A). In fact, uptill now no Rules under Article 226(1A) have been framed by this Court at all. In the absence of any such Rules in a case in which the cause of action, either wholly or in part, arises within the territorial jurisdiction of the High Court at Calcutta, a writ petition may be filed either in the Original Side or in the Appellate Side according to the choice and convenience of the Petitioner. - 16. The question referred to us is whether an application under Article 226 of the Constitution can be maintained on the Original Side of this Court where all the persons and authorities against whom the Rule is asked for are outside the jurisdiction of this High Court, but where part of the cause of action is alleged to have arisen within the original jurisdiction of this Court. Our answer to this question is in the affirmative.” - 6. Therefore, at first glance, it appears to be conclusive that notwithstanding the above Rules of this Hon'ble Court, since no rules framed as on 1974 for applications under Article 226 of the Constitution of India relating to the manner of marking writ petitions which invoke the territorial jurisdiction of this Hon'ble Court on the basis of the occurrence of substantial part of the cause of action rather than situs of the authority, the principle has been well settled that it is a matter of convenience of the writ petitioner. - 7. Even then the Hon'ble Division Bench in the UP Electric Supply Co. Ltd, case appears not to have dwelt on the effect of the words “all the respondents” in Rule 4 which was extracted therein. So even on the basis of situs, only those writ petitions can be filed in the Original Side, where “all the respondents” are situate within the ordinary original civil jurisdiction of the High Court. - 8. On a slightly deeper scrutiny, it will appear that after 1974, this Hon'ble Court has made new rules for applications under Article 226 of the Constitution of India in 1999 and 2000 with effect from May 23, 1986 and then, substantially amended it in 2006, 2008 and 2009 and even as late as in 2014—2016. Rules 4 and 5 as they stand are the same as they used to be. Yet, the new Rules have been the subject matter of various interpretations some of which go further than the Division Bench judgment in U.P. Electric Supply Co. Ltd but in some ways dilute the observations as to marking of a writ petition “Original Side” on the basis of mere convenience where territorial jurisdiction is attracted on the basis of accrual of cause of action. - 9. By way of example, one may notice the judgement in the case of Ashok Kumar Saboo (HUF) and Another—v—Hindustan Paper Corporation Ltd. And Others reported in 2007 (3) CHN 533. - Paragraph 18: Upon plain reading of the aforesaid two clauses it seems to us that the jurisdiction under Article 226 can be invoked in two situations viz. in case of accrual of cause of action whole and part, and in case where the seat of such Government or authority or residence of such person, to put it differently either the Court within whose territorial jurisdiction whole or part of cause of action has arisen can be approached, or the Court within whose jurisdiction the seat of such Government or authority or the residence of such person situates can be approached. - Paragraph 19: Accordingly, we hold that the word 'seat' of such Government or authority used in Clause (2) of the Article 226 means and connotes registered office or principal office or head office whatever may be terminology or even branch office, irrespective of the fact that these places of office have any relation and/ or nexus with the accrual of causes of action. If the nexus and/or connection of the place of business with accrual of causes of action, is conceived as contended by Mr. Chatterjee then the situs of the residence becomes meaningless and in that case Constitution makers could have deleted the theory of situs theory altogether. Rather it could have been provided straightaway that accrual of causes of action either whole or part is the only factor for invocation of jurisdiction, not the place of residence or seat of the respondent. This proposition of law as enunciated by Mr. Chatterjee drawing a reference and/or analogy in the case of a civil matter is wholly misplaced in the public law field. - Paragraph 22: All other decisions cited by Mr. Chatterjee rendered in case of Kusum Ingots and Alloys Ltd. v. Union of India and Anr. reported in MANU/SC/0430/2004 : 2004(186)ELT3(SC) has dealt with the question of accrual of causes of action for attracting jurisdiction of the High Court under Article 226. Rather in paragraphs 10, 25 and 30 of this judgment it is made clear that the theory of forum convenience can be made applicable in case of accrual of part of cause of action in the writ jurisdiction also. It is held in that case that if a small part of cause of action arises within the territorial jurisdiction of one particular High Court the same by itself may not be considered to be determinative factor compelling the High Court concerned to decide the matter on merit. This judgment of the Supreme Court nowhere said that the accrual of causes of action was relatable to the seat of the State and/or authority and the residence of the respondent. The decision of the Supreme Court referred to by us prior to amendment 1963 is not reversed by any subsequent decision of the Supreme Court or by making any provision in the Constitution. The intention of the Parliament while amending the Constitution was to confer jurisdiction upon two Courts under the Constitution as observed by us earlier. - 10. In conclusion, it is submitted that if territorial jurisdiction can be invoked either on the basis of cause of action or on the basis of situs, then the marking of a writ petition as Original Side in a writ petition based on situs, can only be done if all the respondents are within the original jurisdiction, in view of the mandatory words of Rules 4 and 5 of the Rules of this Hon'ble Court relating to applications under Article 226 of the Constitution of India whereas if done on the basis of the accrual of part or whole of the cause of action, it is safer to mark the writ petition Appellate Side if even one of the respondents is outside the aforesaid jurisdiction, since marking of a Writ Petition ‘Original Side” is not derived from Article 226 of the Constitution of India but from the Letters Patent and the Rules. - 11. If, however, it is contended that the cause of action accrued in substantial part within the ordinary original civil jurisdiction at a place which is not the office of any of the respondents in such case it is a classic case where territorial jurisdiction is attracted not on the basis of nexus of cause of action with the situs. If for example, Respondent A sent its officer B to negotiate the terms of a tender with intending tenderers/bidders to the Oberoi Grand where neither Respondent No. A nor the Petitioner has its office, it would be a case where situs is not attracted at all, and the writ petition can be justifiably marked “Original Side”. In such case, it is submitted, the jurisdictional fact ought not to be pleaded as “records of the case are lying with and/or are available with the respondents at their offices within the aforesaid jurisdiction. - 12. In other words, the power to receive, try and determine a writ petition is derived from Article 226 of the Constitution of India but the power to entertain it in the Original Side can only be derived from our Letters Patent or a special statute, since not every High Court has an original side, and it is either conferred by special statute or by Letters Patent, which are worked out by the Rules. Therefore, as a rule of thumb, in all cases apart from ones similar to that which I have outlined in paragraph 11 above, where the Rules make it clear when a writ petition can be marked “Original Side” and they are based entirely on all the respondents being within the ordinary original civil jurisdiction, it appears to be counterproductive to insist on marking a writ petition “Original Side” where even one of the respondents is outside the said jurisdiction and the jurisdictional fact pleaded is based on the availability of the records. Md Danish Taslim, Advocate, High Court at Calcutta.