Full Text
HIGH COURT OF DELHI
W.P.(C) 395/2023 and CM APPL. 1585/2023 (stay)
DURGAPUR FREIGHT TERMINAL PRIVATE LIMITED & ANR. ..... Petitioners
Through: Mr. Sandeep Sethi and Ms. Malvika Trivedi, Sr. Advocates with Mr. Shatadru C, Mr. Shailendra Slaria, Ms. Sujal Gupta and Ms. Sonia D., Advocates.
Through: Mr. Asheesh Jain, CGSC with Mr. Gaurav Kumar and Mr. Siddhant Gupta, Advocates for respondents
No.1 to 5.
Mr. Rajiv Nayar, Sr. Advocate with Mr. Saurabh Seth, Advocate for respondent No.6
Mr. Amit Sibal, Sr. Advocate with Ms. Manju Bhuteria and Mr. Ashok Kumar, Advocates for intervenor.
Mr. Sudhir Nandrajog, Sr.
Advocate with associate counsel for intervenor.
JUDGMENT
1. In the present petition filed under Article 226 of the Constitution of India, the petitioners have assailed letter dated 09.12.2022 issued by respondent No.5 to respondent No.6 and sought directions to respondent Nos.[1] to 5 not to interfere in their operation and management of a Private Freight Terminal at Banful Sarani, Sagarbhanga, Durgapur, West Bengal (hereinafter, ‘Durgapur PFT’).
2. Petitioner No.1 is a private limited company engaged in the business of providing logistic services and petitioner No.2 is its director. Respondent No.1 is the Union of India represented through the Ministry of Railways. Respondent Nos.[2] to 4 are functionaries of the Railway Board, Delhi. Respondent No.5 is the Executive Director (RM) & CFTM/ER, Railway Board, Kolkata. Respondent No.6 is M/s Palogix Infrastructure Private Limited (hereinafter, ‘Palogix’), a private company engaged in the business of rendering logistic services as well as developing and operating Railways Private Freight Terminals.
3. The petitioners claim to have been managing and operating Durgapur PFT pursuant to a resolution plan approved by NCLT, Kolkata Bench, vide order dated 12.02.2018 passed in ICICI Bank v. Palogix Infrastructure Private Limited, C.P. (IB) No. 37/KB/2017. It is their grievance that respondent Nos.[1] to 4 have taken a decision, communicated vide the impugned letter by respondent No.5, to keep all programmes of loading/unloading at Durgapur PFT in abeyance till disputed matters of Palogix are resolved.
4. Mr. Asheesh Jain, learned CGSC appearing for respondent Nos.[1] to 5, took a preliminary objection to the maintainability of the present petition on the ground that this Court does not have territorial jurisdiction over the matter. Accordingly, parties were extensively heard on the issue of territorial jurisdiction. Suffice it to note, three different counsels entered appearance for Palogix, claiming to have the authorization/nomination to represent it during the proceedings; each one of them was heard without making an issue of their authorisation to represent Palogix.
5. Mr. Sandeep Sethi and Ms. Malvika Trivedi, learned Senior Counsels appearing for the petitioners, argued in favour of this Court having territorial jurisdiction under Article 226 of the Constitution of India and contended thus:-
(I) This Court can entertain and decide the present writ petition, as:-
(a) The impugned letter was issued at the behest of respondent Nos.[1] to 4/Railway Board, which has its situs in Delhi, and the records of any decision taken or to be taken by the Railway Board would be in Delhi. With regard to jurisdiction based on situs, reference was made to the decision in Jayaswals Neco Limited v. Union of India and Others, W.P.(C) 2103/2007. (b) Cause of action has arisen in Delhi, insofar as (i) the decision leading to the issuance of the impugned letter had been taken in Delhi, (ii) the impugned letter was marked for ‘further guidance’ to the Railway Board, Delhi, and (iii) a letter dated 26.12.2022 in furtherance of the impugned letter was issued to respondent No.5 by Railway Board, Delhi. In connection with jurisdiction based on cause of action, reliance was placed on the decision in Alchemist Ltd. and Another v. State Bank of Sikkim and Others reported as (2007) 11 SCC 335.
(c) The License Agreement dated 19.09.2012 contains an arbitration clause, i.e., Clause 26.4.1, as per which venue of arbitration is at Delhi. In absence of contrary indicia, the venue of arbitration is to be treated as the seat. Courts in Delhi, by virtue of having jurisdiction over the seat, have jurisdiction over all disputes arising out of the License Agreement to the exclusion of all other Courts. In support of the contention, reliance was placed on the decisions in BGS SGS Soma JV v. NHPS Limited reported as (2020) 4 SCC 234, Brahmani River Pellets Limited v. Kamachi Industries Limited reported as (2020) 5 SCC 462 and Inox Renewables Ltd. v. Jayesh Electricals Ltd. reported as 2021 SCC OnLine SC 448.
(d) The issue raised in the present writ petition is different from the ones pending consideration before the Calcutta High Court, inasmuch as the issues before the Calcutta High Court relate to physical dispossession, police action, company affairs, etc. however the sum and substance of the issue raised in the present writ petition is that respondent Nos.[1] to 5 have taken an arbitrary decision against the petitioners on the basis of letter(s) received from shareholders/directors of Palogix and brought their operation of the PFT to a standstill.
(II) The impugned letter was not preceded by issuance of any show cause notice and thus, is violative of principles of natural justice. In this regard, reference was made to the decision of the Supreme Court in Union Carbide Corporation and Others v. Union of India and Others reported as (1991) 4 SCC 584.
(III) The Railway Board, Delhi is seized of the controversy and has advised further steps in the matter. In this regard, Mr. Sandeep Sethi, learned Senior Counsel, drew attention to communication dated 26.12.2022 issued by the Joint Director/TT-II, Railway Board to the Executive Director (Rail Movement), Eastern Railway House, Kolkata (Annexure P-15) and submitted that on receipt of the said communication, a representation was sent by the petitioners to respondent Nos.[2] to 5 on 28.12.2022, which has remained pending and unanswered.
(IV) The principle of forum conveniens cannot be applied to oust the territorial jurisdiction of this Court, as it is applicable only when a choice is to be made between two forums/Courts.
6. While appearing for respondent Nos.[1] to 5, Mr. Asheesh Jain, learned CGSC, contended thus:-
(I) The cause of action cannot be said to have arisen in Delhi, as (a) the impugned letter under the signatures of respondent No.5 was issued in Kolkata, (b) the Durgapur PFT, with respect to operation and management of which directions are sought by the petitioners, is situated outside Delhi (i.e., in Durgapur), (c) the Petitioners, Respondent No.5 and Palogix are not located in Delhi, (d) the License Agreement dated 19.09.2012 between respondent Nos.[5] and 6 was not executed in Delhi, (e) the order dated 12.02.2018, on the strength of which the petitioners claim reliefs in the present petition, was passed by the Kolkata Bench of NCLT, and (f) all other litigations between the parties, pending or disposed, are before Courts/Tribunals outside Delhi.
(II) Indian Railways is divided into various ‘Railway Administrations’ and ‘Zonal Railways’ which are capable of taking decisions for territories over which they exercise jurisdiction. Respondent No.5 is one such Zonal Railway, which had taken the decision communicated vide the impugned letter at Kolkata. Only a copy of the impugned letter was communicated to Railway Board, Delhi for information and the same, by no measure, meant that the decision was taken by respondent Nos.[1] to 4. (III) ‘Railway Administration’ in the License Agreement dated 19.09.2012 is defined as ‘President of India acting through the General Manager for the time being of Eastern Railway…’. It is thus fallacious for the petitioners to argue that this Court can entertain the writ petition because the Railway Administration is headquartered in Delhi.
(IV) The communication of letter dated 26.12.2022 (Annexure P-15) does not lead to accrual of any cause of action as the Railway Board has only advised that prior authorization letter from the Board of Directors of Palogix ‘may be taken’ and the authority may also obtain any legal opinion in this regard.
(V) The arbitration clause in the License Agreement does not further the cause of the petitioners as till date, no arbitration proceedings have been initiated and the venue remains to be decided.
7. Mr. Rajiv Nayar, learned Senior Counsel, entered appearance for the Resolution Applicant-Mr. Sanjay Kumar Mishra (statedly representing respondent No.6) and submitted that in view of Clause 26.4.[1] of the License Agreement, the venue of arbitration was New Delhi. As such, this Court is a “Court of logical conclusion” and for all purposes (including interim relief, if any, to be filed under Section 9 of the Arbitration Act in terms of the aforesaid Clause), the Courts in Delhi would have territorial jurisdiction. With regard to the impugned letter, it was submitted that the same did not constitute final adjudication. Learned Senior Counsel pressed that by way of the said letter, further guidance from the Railway Board had been sought. To urge that assessment as to whether a Court has territorial jurisdiction, has to be made in light of the contents of the petition without going into their correctness, reliance was placed on the decision in Oil and Natural Gas Commission v. Utpal Kumar Basu and Others reported as (1994) 4 SCC 711.
8. Mr. Sudhir Nandrajog and Mr. Amit Sibal, learned Senior Counsels appearing for the intervenors, countered the stance of the petitioners on territorial jurisdiction of this Court by raising the following contentions:-
(I) The impugned letter was issued by respondent No.5 at Kolkata and marking a copy of the same to the Railway Board, Delhi for ‘further guidance’ does not imply that the decision itself was taken at Delhi. The situs of the authority that has passed the order under challenge is the relevant factor for deciding territorial jurisdiction, which cannot be said to lie with this Court as the impugned letter was issued at Kolkata. In this regard, reference was made to the decisions in M/s Kwality Caterers v. Union of India & Another reported as 2011 SCC OnLine Del 5503 and Money Market Services (India) Private Ltd. v. Union of India reported as MANU/DE/1633/2020.
(II) It is the communication of a decision that leads to accrual of a cause of action and in the present case, the decision has been taken by respondent No.5 at Kolkata and communicated to Palogix at Kolkata. In this regard, reference was made to the decision in Mr. P.K.S. Shrivastava v. Union of India and Anr. reported as 2016 SCC OnLine Del 6149.
(III) Clause 26.[4] of the License Agreement does not confer territorial jurisdiction on this Court as – (a) the petitioners were not party to it, (b) disputes raised herein are not contractual disputes and thus cannot be said to have arisen out of the License Agreement, (c) no arbitration proceedings have been initiated under the Clause, and (d) the Clause only refers to ‘venue’ of arbitration. In fact, the question as to whether the seat of arbitration under the License Agreement is in Delhi or not is immaterial to the determination of territorial jurisdiction of this Court.
(IV) The letter dated 26.12.2022 does not confer territorial jurisdiction on this Court, as – (a) it was a mere internal advisory issued to respondent No.5 and the discretion for the decision has been left with respondent No.5, (b) the decision-making authority is still respondent No.5, which has its situs in Kolkata.
(V) Not even a miniscule cause of action has arisen in Delhi, as – (a) the decision was taken and impugned letter issued at Kolkata, (b) the petitioners claim rights under the License Agreement, MoU and Resolution Plan, which were all executed/approved in West Bengal, and
(c) the subject matter of each of the prayers made in the petition lies outside Delhi. While the petitioners are based in Uttar Pradesh, Palogix has its registered office in Kolkata. Directions have been sought against respondent No.5, which is also based in Kolkata.
(VI) Even if the petitioners are able to make out some miniscule or peripheral connection with Delhi, to determine whether cause of action has arisen for exercise of territorial jurisdiction, this Court shall have regard to facts which are material, essential or integral to the cause of action. In this regard, reference was made to Sterling Agro Industries Ltd. v. Union of India & Ors. reported as 2011 SCC OnLine Del 3162.
(VII) Even if this Court comes to the conclusion that it has territorial jurisdiction in the present case, and all facts pleaded in the petition are taken to be correct, it is not the forum conveniens. Courts where proceedings have been conducted previously or where a large part of the cause of action has arisen are to be preferred and in the present case, proceedings are already pending between the parties before the NCLT and Courts in Kolkata, wherein similar issues, grounds and prayers have been raised/sought. Reference, in this regard, was made to WPA NO. 23309/2022 pending before the Calcutta High Court, to which the petitioners, Palogix as well as respondent No.5 are all parties. In support of the contention, reliance was placed on the decisions in Amit Kumar & Ors. v. Union of India & Ors. reported as 2016 SCC OnLine Del 3312; Neetu v. Department of Financial Services and Ors. reported as 2016 SCC OnLine Del 3549 and Rio Tinto Orissa Mining P. Ltd. v. Mines Tribunal reported as MANU/DE/3435/2014, as well as the following chart depicting pending litigations between the parties:-
┌─────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ SL. Nature of Proceeding Date of Filing Order │ │ No. │ ├─────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. Writ Petition filed before the 17.10.2022 Order dated │ │ Hon'ble High Court at 28th October, │ │ Calcutta being W.P.A. No. 2022 was │ │ 23309 of 2022 passed, │ │ wherein no │ │ Petitioners : interim order │ │ 1. Durgapur Freight Terminal has been │ │ Pvt. Ltd. passed in │ │ 2. Ajay Malviya favour of the │ │ petitioner. │ │ W.P.(C) 395/2023 Page 9 of 28 │ │ Digitally Signed │ │ By:SANGEETA ANAND │ │ Neutral Citation Number : 2023/DHC/001502 │ │ Respondents │ │ 1. The State of West Bengal, │ │ through the Department of │ │ Home Affairs │ │ 2. The General Manager, │ │ Eastern Railway, Freight │ │ Marketing Division │ │ 3. The Commissioner of │ │ Police │ │ 4. The Officer-in-charge, coke │ │ oven Police Station │ │ 5. Palogix Infrastructure │ │ Private Limited │ │ 10.11.2022 │ │ An Intervention Application │ │ being CAN 1 has been filed │ │ by GCL Logistic Terminal │ │ LLP and Godavari │ │ Commodities Limited. │ │ 11.11.2022 │ │ An intervention Application │ │ being CAN 2 has been filed │ │ by Deepak Joshi │ │ 2. Commercial suit being CS No. 21.10.2022 On 22nd │ │ 267 of 2022 filed before the December, │ │ Hon'ble High Court at 2022 the │ │ Calcutta Plaint was │ │ presented and │ │ Plaintiff leave under │ │ 1. Sanjay Kumar Mishra Section 12A │ │ of Commercial │ │ Defendant Courts Act │ │ 1. Godavari Commodities was granted. │ │ Limited │ │ 2. GCL Logistic Terminal │ │ LLP │ │ 3. Palogix Infrastructure │ │ Private Limited │ │ An application being GA 1 of │ │ 31.10.2022 │ │ 2022 has been filed by the │ │ plaintiff, inter alia, praying for │ │ W.P.(C) 395/2023 Page 10 of 28 │ │ Digitally Signed │ │ By:SANGEETA ANAND │ └─────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
2. Commercial suit being CS NO. 267 of 2022 filed before the Calcutta Plaintiff
1. Sanjay Kumar Mishra Defendant
1. Godavari Commodities Limited
2. GCL Logistic Terminal LLP
3. Palogix Infrastructure An application being GA 1 of 2022 has been filed by the plaintiff, inter alia, praying for 21.10.2022 31.10.2022 On 22nd December, 2022 the Plaint was presented and leave under Section 12A of Commercial Courts Act was granted. ad interim orders An application being GA 2 of 2023 has been filed by defendant No.1 for revocation of Leave under Section 12A of Commercial Courts Act. 04.01.2023
3. A company Petition being C.P. No. 338 of 2022 has been filed before the National Company Law Tribunal, Kolkata Bench under Section 241-242 of the Companies Act, 2013
1. GCL Logistic Terminal LLP
2. Godavari Commodities Limited Respondents:
1. Palogix Infrastructure
2. Sanjay Kumar Mishra
3. Atul Kumar Paliwal
4. Ramesh Sharan Rai
5. Vishal Rai
6. RBL Bank
7. Tata Capital Financial Services
8. Durgapur Freight Terminal Pvt. Ltd.
9. Palogix TMC Pvt. Ltd.
10. Palogix Infra Logistics Pvt. Ltd.
11. Vista Steel Pvt. Ltd.
12. Shweta Rai
13. Sayonara Commercial
14. Twarit Transportation and 29.10.2022 No interim order has been passed yet, however, by an order dated 9th November, 2022, the matter has been reserved for passing of orders. Solutions Pvt. Ltd.
15. Deepak Joshi
4. A company Petition being C.P. No. 322 of 2022 has been filed before the National Company Law Tribunal, Kolkata Bench under Sections 241/242 of the Companies Act, 2013
1. Ramesh Sharan Rai
2. Sweta Rai
3. Vishal Rai
4. Sayonara Commercial
5. Twarit Transportation and Solutions Pvt. Ltd. Respondents:
1. Palogix Infrastructure
2. Deepak Joshi
3. Kamal Singh Bhutoria
4. Shyam Premrajka
5. Sanjay Kumar Mishra
6. GCL Logistics Terminal LLP 19.10.2022 No interim order has been passed yet, however, by an order dated 9th November, 2022, the matter has been reserved for passing of orders.
5. Deepak Joshi had obtained an order dated 1.11.2022, from the Ld. Executive Magistrate Durgapur in a Section 144 of Cr.P.C. Application. Ajay Malaviya, had challenged the order dated 1.11.2022 by preferring an application under Section 482 of the Cr.P.C. before the 03.11.2022 Order dated 04.11.2022 has been passed by the Hon'ble High Court wherein the order dated 01.11.2022 was stayed. Calcutta being CRR No. 4011 of 2022. A Vacating Application being CRAN 1 of 2022 has been filed by Mr. Deepak Joshi, being Opposite Party No.2. 13.12.2022
9. Heard. Perused.
10. A perusal of the case records would show that initially, the license for operation and management of Durgapur PFT was granted by respondent No.5 to Palogix. In the year 2017, a Memorandum of Understanding (MoU) came to be executed between petitioner No.2 and Palogix on January 5, in terms whereof, the aforesaid license was to be transferred to petitioner No.1 for a consideration of Rs.15,00,00,000/- to be paid in two instalments – one of Rs.1,50,00,000/- and another of Rs.13,50,00,000/-. The second instalment was to become due once the license was transferred. However, before the transfer could go through, Corporate Insolvency Resolution Process (CIRP) was initiated against Palogix before NCLT, Kolkata Bench vide C.P.(IB) No.37/KB/2017. A Resolution Plan dated 30.01.2018 accepted by the Committee of Creditors was approved by the NCLT, Kolkata Bench vide order dated 12.02.2018, wherein agreement between petitioner No.1 and Palogix with respect to transfer of license to operate Durgapur PFT was statedly recognised. In terms of the arrangement between petitioner No.1 and Palogix, petitioner No.1 started operating Durgapur PFT while steps were underway to get it substituted as Terminal Management Company in the aforesaid license. However, as disputes arose between certain shareholders/directors of Palogix leading to filing of complaints with Zonal Railways and cases at the Calcutta High Court, the impugned letter dated 09.12.2022 was issued by respondent No.5 to Palogix communicating thereby the decision to keep in abeyance all programmes endorsed to/from PFPD siding for loading/unloading, until Palogix’s disputes were resolved. Aggrieved by the same, the petitioners preferred the instant writ petition.
11. In the writ petition, the petitioners have claimed jurisdiction of this Court in the following terms:-
12. Before proceeding further, it is deemed apposite to advert to clauses (1) and (2) of Article 226 of the Constitution of India, which read as under:-
13. A reading of Clauses (1) and (2) of Article 226 of the Constitution of India would show that a High Court has territorial jurisdiction to issue writs under two situations: one, where the person/authority to whom the writ is to be issued is situated within the territory over which the High Court exercises jurisdiction, and two, where the cause of action, wholly or in part, arises for issuance of a writ within such territory. For the sake of convenience, the first may be referred to as ‘jurisdiction by virtue of situs’ and the other as ‘jurisdiction by virtue of cause of action’.
14. In the instant case, the petitioners have claimed jurisdiction of this Court under both clauses of Article 226 of the Constitution of India. The tests to determine whether this Court has jurisdiction under these Clauses are well-defined. While before exercising jurisdiction by virtue of situs, this Court is required to arrive at a positive finding that the authority/person to whom the writ has to be issued lies within the territory over which the Court exercises jurisdiction; in order to exercise jurisdiction by virtue of cause of action, the Court shall be of the opinion that cause of action, wholly or in part, has arisen within the jurisdiction over which it exercises jurisdiction.
15. The Supreme Court in Utpal Kumar Basu and Others (Supra) has observed that the question as to whether the High Court has territorial jurisdiction to entertain a writ petition has to be decided on the basis of facts pleaded in the petition, the truth or otherwise thereof being immaterial. Relevant excerpt from the decision is extracted hereunder:-
16. The scope of Article 226(2) of the Constitution of India came to be analysed in depth in Kusum Ingots & Alloys Ltd. v. Union of India and Another reported as (2004) 6 SCC 254, where the Supreme Court observed thus:-
17. In Nawal Kishore Sharma v. Union of India and Others reported as (2014) 9 SCC 329, it has been held that persons/authorities outside the territorial jurisdiction of a High Court are also amenable to its writ jurisdiction, if the cause of action wholly or partially arises within such territorial jurisdiction. Relevant excerpt from the decision is reproduced below:-
18. While answering a reference with respect to the correctness of the decision in New India Assurance Co. Ltd. v. Union of India & Ors. reported as 2009 SCC OnLine Del 1764, a Full Bench (Five Judges) of this Court in Sterling Agro Industries Ltd. (Supra) observed thus:-
19. In M/s Kwality Caterers (Supra), a Single Bench of this Court had dismissed a petition filed under Article 226 of the Constitution of India, refusing to exercise its power against letter issued by South Eastern Railways, Kolkata, on the ground that it did not have territorial jurisdiction and/or that the Court at Kolkata is the forum conveniens. In the appeal filed by the appellant against the order of the learned Single Judge, Division Bench of this Court concurred with the view taken by the learned Single Judge and observed as follows:-
20. A factual matrix similar to the present case presented itself in Money Market Services (India) Private Ltd. (Supra), where this Court observed as follows:-
21. Recently, in Sachin Hindurao Waze v. Union of India and Others reported as 2022 SCC OnLine Del 3287, this Court underscored the importance of applying the principle of forum conveniens and opined thus:- “12. On a broad holistic assessment of decisions cited by the petitioner would show that there are practically two elements which have to be considered by any court while accepting jurisdiction to decide a writ petition under Article 226 of the Indian Constitution - firstly, if any part of the cause of action arises within its territorial jurisdiction; and secondly if the said court is the forum conveniens. Only a mere shred or an iota of a cause of action potentially clothing a particular High Court with jurisdiction [per Article 226(2) of the Constitution of India] to adjudicate a writ petition, ought not to encourage a court to accept such jurisdiction completely divorced and dehors an assessment of forum conveniens. This has been categorically articulated in decisions of this Court. A Special Bench comprising 5 judges of this Court [Chief Justice Dipak Misra, Vikramajit Sen, J. A.K. Sikri, J. Sanjiv Khanna, J. and Manmohan, J.] in Sterling Agro (supra) after traversing the law relating to territorial jurisdiction in context of Article 226 of the Constitution of India emphasized that the High Court must not only advert to the existence of a cause of action but also remind themselves about the doctrine of forum conveniens also.
13. Accordingly, in para 33 of the reported judgment in Sterling Agro Industries (supra) this Court concluded that a cause of action cannot be totally based on the situs of the tribunal/appellate authority/revisional authority while completely ignoring the concept of forum conveniens, and that the High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
16. Learned counsel for the petitioner relied upon the reasoning by this Court in para 30 of Sonu Sardar (supra) that since material to be examined is the advice tendered by the Cabinet and all documents and records were in Delhi, the decision was taken in Delhi and therefore, this Court has jurisdiction to entertain the writ petition. However, this Court notes that this reasoning was premised upon the observation in para 29 of the said decision where this Court noted that the scope of judicial review in rejection of mercy petitions is limited and it extends only to the material upon which the decision is based, i.e., whether all relevant material was considered before arriving at a conclusion. This decision will not come to the aid of the petitioner, since in the considered view of this Court, firstly this Court drew a distinction between a petition challenging an issue relating to criminal proceedings which were ongoing as opposed to a situation of a mercy petition where criminal proceedings had attained finality and what has to be examined in isolation was the executive action; secondly, this Court was fully cognizant of the law laid down in the line of decisions from Kusum Ingots (supra), Ambica Industries v. Commissioner Of Central Excise, (2007) 6 SCC 769, Sterling Agro (supra) where the court is obliged to consider not only existence of part of cause of action but also balancing it by applying the principle of forum conveniens.
17. …Having considered the facts and circumstances of the matter and the obvious forum conveniens for the petitioner, being a resident of Mumbai, seeking relief relating to proceedings underway in Mumbai, the special courts and authorities investigating and adjudicating the matter located in Mumbai, this Court finds no reason to clothe itself with territorial jurisdiction to adjudicate the relief sought in this petition.”
22. Coming to the facts of the present case, it is noted that the factum of issuance of the impugned letter by respondent No.5 at Kolkata is not in dispute. The petitioners have alleged that the impugned letter issued by respondent No.5 was a mere mode of communication, whereas the actual decision was taken by respondent Nos.[1] to 4 at Delhi. However, there is nothing on record to give credence to the suggestion of the petitioners. Besides, the letter dated 26.12.2022 by Railway Board, Delhi was issued to respondent No.5 after issuance of impugned letter dated 09.12.2022 by respondent No.5. Thus, it cannot be inferred that the impugned letter was issued pursuant to a decision taken by respondent Nos. 1 to 4. Internal correspondence between the two departments of Railways cannot be overstretched to claim jurisdiction of this Court.
23. Pertinently, Sections 2(32) and 3 of the Railways Act, 1989 read as follows:- “(32) “railway administration”, in relation to— (a) a Government railway, means the General Manager of a Zonal Railway; and (b) a non-Government railway, means the person who is the owner or lessee of the railway or the person working the railway under an agreement; xxx
3. Zonal Railways.—(1) The Central Government may, for the purpose of the efficient administration of the Government railways, by notification, constitute such railways into as many Zonal Railways as it may deem fit and specify in such notification the names and headquarters of such Zonal Railways and the areas in respect of which they shall exercise jurisdiction. (2) The Zonal Railway existing immediately before the commencement of this Act shall be deemed to be Zonal Railways constituted under sub-section (1). (3) The Central Government may, by notification, declare any unit of the railways engaged in research, development, designing, construction or production of rolling stock, its parts or other equipment used on a railway, to be a Zonal Railway. (4) The Central Government may, by notification, abolish any Zonal Railway or constitute any new Zonal Railway out of any existing Zonal Railway or Zonal Railways, change the name or headquarters of any Zonal Railway or determine the areas in respect of which a Zonal Railway shall exercise jurisdiction.”
24. Railways is divided into different zones on territorial basis. Each Railway Zone is headed by a General Manager. All zones may be connected to the Railway Board at the top, but administratively they operate within their own territories.
25. There is no indication that decisions taken by zonal offices are subject to confirmation by Railways Headquarters at Delhi. As stated above, there is no indication that the impugned letter issued by respondent No.5 was at the behest of respondent Nos.[1] to 4 or a mere mode of conveying the decision actually taken by respondent Nos.[1] to 4. In this backdrop, by merely impleading respondent Nos.[1] to 4 as parties in the petition and suggesting that the impugned decision was taken by them, the petitioners are misdirected in attempting to claim jurisdiction of this Court, which otherwise is not made out. Concededly, all other parties are not located in the jurisdiction of this Court. At the cost of repetition, it is observed that internal correspondence exchanged between respondent No.5 and Railway Board is inconsequential for locating territorial jurisdiction of a Court in the matter.
26. The petitioners’ reliance on Clause 26.4.[1] of the License Agreement to attract jurisdiction of this Court is also fundamentally flawed. Jurisdiction clauses in the contracts would decide the jurisdiction within which contractual disputes are resolved. Party autonomy is the reason for such choice being provided to contracting parties to chose a forum of their mutual choice in contractual disputes. However, when a party chooses to invoke extraordinary writ jurisdiction of a constitutional Court, the jurisdiction clause in the contract cannot be a guiding factor. Regardless, even in contracts, one cannot confer jurisdiction by way of jurisdiction clauses on a Court that does not have one. One can only confine jurisdiction to one of the two competent Courts that have jurisdiction. As already held, this Court lacks jurisdiction to start with, therefore, even under Clause 26.4.[1] of the license agreement, this Court does not attract jurisdiction in the matter. The whole argument advanced by the petitioners on “seat versus venue” is misplaced. There is no need to refer to Clause 26.4.[1] of the License Agreement dated 19.09.2012 to look for signs to find if this Writ Court will have jurisdiction.
27. No part of cause of action, much less material cause of action, has arisen within the territorial limits of this Court.
28. In this view of the matter, this Court is of the opinion that it does not have territorial jurisdiction to decide the case under Article 226 of the Constitution of India. Having arrived at such conclusion, the question as to whether this Court is the forum conveniens or not, and other contentions raised, need not be gone into.
29. The petition is dismissed. Pending miscellaneous application stands disposed of.
JUDGE FEBRUARY 28, 2023