Dismissed

Shri Muthappa Nettala Rai v. Union of India & Ors.

Delhi HC19 Feb 2016W.P.(C)/1386/2016

Case brief

AI extract

What is this about?

Petitioner challenged passport refusal order under Passports Act relying on a Karnataka High Court order. Court, following Sterling Agro judgment on forum conveniens, dismissed petition as Delhi High Court was not a convenient forum and directed petitioner to approach Karnataka High Court.

What did the court decide?

Petition dismissed with liberty to the petitioner to approach the Karnataka High Court.

Shri Muthappa Nettala Rai Vs Union of… — Constitutional and Fundamental Rights | Delhi HC (2016)

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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- W.P.(C) 1386/2016

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SHRI MUTHAPPA NETTALA RAI ..... Petitioner Through: Mr. Jayant Bhushan, Senor Advocate with Mr. Sunil Fernandes and

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Mr. Deepak Pathak, Advocate.

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versus

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UNION OF INDIA & ORS ..... Respondents Through: Mr. Naginder Banipal, Advocate for Mr. Anil Soni, Advocate. % Date of Decision: 19^th February, 2016

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CORAM: HON'BLE MR. JUSTICE MANMOHAN J U D G M E N T MANMOHAN, J: (Oral)

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CM Appl. 6049/2016 (for exemption) in W.P.(C) 1386/2016

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Allowed, subject to just exceptions.

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W.P.(C) 1386/2016

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Present writ petition has been filed seeking a direction to challenge the order dated 25^th June, 2015 passed by the Deputy Passport Officer whereby petitioner’s application was refused in accordance with Section 6(2)(b) & (c) of the Passports Act, 1967.

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W.P.(C) 1386/2016

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Page 1 of 5

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Petitioner also challenges the impugned order dated 23^rd November, 2015 passed by respondent No.2-Chief Passport Officer whereby the order dated 25^th June, 2015 was upheld and petitioner’s application for passport was rejected on the ground of adverse verification reports by the police and Central Security Agencies. Petitioner also seeks issuance of a regular passport forthwith.

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Mr. Jayant Bhushan, learned senior counsel for the petitioner states that petitioner had filed a W.P.(C) 30080/2013 GM (Pass) before the High Court of Karnataka and the same was disposed of with the liberty to the petitioner to apply for the passport before respondent No.3 and a direction to the respondent No.3 to communicate the adverse report to the petitioner and not to consider the adverse report of police as binding.

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Mr. Bhushan further states that no adverse report was ever communicated to the petitioner and consequently, principles of natural justice have been violated. He states that the State Crime Report Bureau, Bangalore, in its report dated 02^nd July, 2010 has stated that the petitioner was discharged/acquitted in all the twelve cases filed against him and there is no pending case against the petitioner as of today.

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In the opinion of this Court, since the petitioner has already invoked the jurisdiction of Karnataka High Court, it would not be appropriate for this Court to entertain the present writ petition.

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A Five Judge Bench judgment in Sterling Agro Industries Ltd. Vs. Union of India & Ors. 181 (2011) DLT 658 (LB) has held as under:-

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"31. The concept of forum conveniens fundamentally means that it is obligatory on the part of the court to see the convenience of all the parties before it. The convenience in its ambit and sweep would include the existence of more

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W.P.(C) 1386/2016

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Page 2 of 5

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appropriate forum, expenses involved, the law relating to the lis, verification of certain facts which are necessitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of. Be it noted, the Apex Court has clearly stated in the cases of Kusum Ingots (supra), Mosaraf Hossain Khan (supra) and Ambica Industries (supra) about the applicability of the doctrine of forum conveniens while opining that arising of a part of cause of action would entitle the High Court to entertain the writ petition as maintainable.

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32. The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens. The Full Bench in New India Assurance Co. Ltd. (supra) has not kept in view the concept of forum conveniens and has expressed the view that if the appellate authority who has passed the order is situated in Delhi, then the Delhi High Court should be treated as the forum conveniens. We are unable to subscribe to the said view.

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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

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(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.

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W.P.(C) 1386/2016

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Page 3 of 5

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(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. (supra).

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(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.

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(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.

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(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 malafide alone.

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(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 (supra) and Adani Exports Ltd. (supra).

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(g) The conclusion of the earlier decision of the Full Bench in New India Assurance Company Limited (supra) “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.

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W.P.(C) 1386/2016

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Page 4 of 5

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(h) Any decision of this Court contrary to the conclusions enumerated hereinabove stands overruled."

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(emphasis supplied)

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In view of the aforesaid judgment, this Court is of the opinion that the present Court is not a convenient forum. Accordingly, present writ petition is dismissed with liberty to the petitioner to approach the Karnataka High Court. The rights and contentions of all the parties are left open.

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MANMOHAN, J
FEBRUARY 19, 2016
js

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W.P.(C) 1386/2016

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Shri Muthappa Nettala Rai v. Union of India & Ors.

Case brief

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Shri Muthappa Nettala Rai v. Union of India & Ors.

Case brief

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