Dismissed

Ashok Kumar v. Union of India and Ors.

Delhi HC4 Apr 2016W.P.(C)/2896/2016

Case brief

AI extract

What is this about?

Petitioner challenged illegal sand mining by Union Government officers with Haryana collusion on Defence Land in Faridabad. Court applied doctrine of forum conveniens finding Punjab and Haryana High Court the convenient forum. Writ petition dismissed with liberty to file there.

What did the court decide?

Writ petition dismissed with liberty to file a writ petition in the Punjab and Haryana High Court.

Ashok Kumar Vs Union of India and Ors. — Environment and Pollution | Delhi HC (2016)

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$~44

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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- W.P.(C) 2896/2016

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ASHOK KUMAR ..... Petitioner

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Through Petitioner in person.

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versus

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UNION OF INDIA AND ORS ..... Respondents Through Mr.Manish Mohan, CGSC with Mr.Shivam Chanana, Ms.Manisha Saroha and Ms.Priyanka Sinha, Advocates for R- 1 to 3.

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CORAM:

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HON'BLE MR. JUSTICE MANMOHAN

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O R D E R % 04.04.2016

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Present writ petition has been with the following prayers:-

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“(i) Issue an appropriate Writ, Order or Direction in the nature thereof to the Respondent Nos.1 to 3 for disposal of the representation dated 17-10-2014 of the petitioner by reasoned orders, by giving an opportunity of hearing, wherein the petitioner had sought enquiry/action against the Respondent Nos.4 to 7 for causing heavy loss to the tune of Rs.29,00,33,680/- (Rupees Twenty Nine Crores Thirty Three Thousand Six Hundred Eighty only) to the exchequer of the Government of India till 07-07-2014 by their acts of omission/commission and misusing of their positions for allowing the illegal mining of sand, in collusion with the administrative/police officers of Haryana Government and sand mafias, from the Defence Land, which belongs to the India Air Force situated at Tilpat Ranges-I & II, District Faridabad, Haryana.

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(ii) Issue such other or further Writ/Order/Direction in the nature as appropriate as this Hon’ble Court may deem fit and proper, in

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the interest of justice.

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It has been averred in the petition that the petitioner filed an O.A.No.302/2013, wherein vide order dated 10^th October, 2013, the National Green Tribunal prohibited mining activities in District Faridabad, Haryana.

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The petitioner who appears in person states that respondent nos. 4 to 7 being the Central Government officers in collusion with the employees of the State Government of Haryana have allowed illegal mining (excavation) of sand in Tilpat Range I & II, Faridabad, which belongs to the Indian Airforce. He further states that respondent nos. 4 to 7 have prepared false reports/affidavits to the effect that no illegal mining is being carried out on the Defence land.

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The petitioner also states that petitioner made a representation dated 17^th October, 2014 to the respondent nos. 1 to 3 regarding the aforesaid issue, but no action has been taken till date.

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According to this Court, both Punjab & Haryana as well as Delhi High Courts have concurrent jurisdiction. However, keeping in view of the situs of mining i.e. State of Haryana and FIR, if any, has to be registered by local police i.e Haryana Police, this Court is of the view that Punjab and Haryana High Court is the convenient forum.

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In fact, a Five Judge Bench of this Court 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

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convenience in its ambit and sweep would include the existence of more 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 (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

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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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(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

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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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(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 thereof, the present writ petition is dismissed with liberty to the petitioner to file a writ petition in the Punjab and Haryana High Court.

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MANMOHAN, J

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APRIL 04, 2016 KA

Ashok Kumar v. Union of India and Ors.

Case brief

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Ashok Kumar v. Union of India and Ors.

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