Tummala Lakshmana Rao v. Union of India & Ors.

1. This matter was passed over at the request of the counsel for the petitioner on the first instance that he is being led by a Senior Advocate. In a case such as the present, I was not inclined to grant pass over, but since the pass over prayed was only for a minute, it was hence granted. Pass over is however again prayed after one hour of the first call, and which I am not inclined to grant. 2015:DHC:2744

2. Petitioner by this writ petition filed under Article 226 of the Constitution of India impugns the appointments of respondent nos. 4 to 12 as additional Judges of the High Court of Judicature for the State of Telangana & the State of Andhra Pradesh at Hyderabad. This Court at Delhi in my opinion is thus forum non conveniens.

3. The issue with respect to forum conveniens and forum non conveniens has been elaborated in a Full Bench judgment of five judges of this Court in the case of M/s. Sterling Agro Industries Ltd. Vs. Union of India and Ors. AIR 2011 Delhi 174. The relevant ratio of Sterling Agro Industries Ltd.’s case (supra) is contained in para 33. Sub paras (a), (e) and (f) of this para 33 of the judgment apply in the present case. This para 33 reads as under:- “33 In view of the aforesaid analysis, we are inclined to modify the findings and conclusions of the Full Bench in New India Assurance Company Limited (supra) and proceed to state our conclusions in seriatim as follows: (a) The finding recorded by the Full Bench that the sole cause of action emerges at the place or location where the tribunal/appellate authority/revisional authority is situate and the said High Court (i.e., Delhi High Court) cannot decline to entertain the writ petition as that would amount to failure of the duty of the Court cannot be accepted inasmuch as such a finding is totally based on the situs of the tribunal/appellate authority/revisional authority totally ignoring the concept of forum conveniens. (b) Even if a miniscule part of cause of action arises within the jurisdiction of this Court, a writ petition would be maintainable before this Court, however, the cause of action has to be understood as per the ratio laid down in the case of Alchemist Ltd. and Anr. V. State Bank of Sikkim and Ors: (2007) 11 SCC

(c) An order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated. Yet, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

(d) The conclusion that where the appellate or revisional authority is located constitutes the place of forum conveniens as stated in absolute terms by the Full Bench is not correct as it will vary from case to case and depend upon the lis in question. (e) The finding that the court may refuse to exercise jurisdiction under Article 226 if only the jurisdiction is invoked in a malafide manner is too restricted / constricted as the exercise of power under Article 226 being discretionary cannot be limited or restricted to the ground of mala fide alone. (f) While entertaining a writ petition, the doctrine of forum conveniens and the nature of cause of action are required to be scrutinized by the High Court depending upon the factual matrix of each case in view of what has been stated in Ambica Industries

V. Commissioner of Central Excise: 2007 AIR SCW 7714 and

Union of India V. Adani Exports Ltd.: (2002) 1 SCC 567 (g) The conclusion of the earlier decision of the Full Bench in New India Assurance Company Limited V. Union of India and Ors.: AIR 2010 Delhi 43 (FB) “that since the original order merges into the appellate order, the place where the appellate authority is located is also forum conveniens” is not correct. (h) Any decision of this Court contrary to the conclusions enumerated hereinabove stands overruled.”

4. Since by this writ petition, appointments of persons as Judges of the High Court of Telangana and Andhra Pradesh at Hyderabad are challenged, the petition will have to be filed in the High Court of the States of Andhra Pradesh and Telengana at Hyderabad, and which is the Court of forum conveniens including because of residence of the petitioner and the respondents whose appointments are challenged and also because of the availability of the records within the territorial jurisdiction of the High Court of the States of Andhra Pradesh and Telangana at Hyderabad.

5. The writ petition is accordingly dismissed with liberty to the petitioner to approach the High Court of the States of Andhra Pradesh and Telangana at Hyderabad.

MARCH 23, 2015 VALMIKI J. MEHTA, J rs