11. In the writ petition, the petitioners have claimed jurisdiction of this Court in the following terms:-
"59. The present petition is maintainable before this Hon'ble Court inasmuch as the concerned respondents viz. respondent nos. 1 to 4 who took the decisions impugned are located within the territorial jurisdiction of this Hon'ble Court. Moreover the essential part of cause of action viz. decisions leading to the acts and/or omission including non- consideration of the petitioner's representation dated December 28, 2022 have taken place within the territorial jurisdiction of this Hon'ble Court."
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:-
"226. Power of High Courts to issue certain writs.--(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."
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:-
"6. ...Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court."
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:-
"9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts.
10. Keeping in view the expressions used is clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter.
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16. In Union of India v. Adani Exports Ltd. it was held that in order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the Court to decide the dispute and the entire or a part of it arose within its jurisdiction.
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18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.
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27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places...
xxx Forum conveniens
30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. [See Bhagat Singh Bugga v. Dewan Jagbir Sawhney, Madanlal Jalan v.
Madanlal, Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd., S.S. Jain & Co. v. Union of India and New Horizons Ltd. v. Union of India.]"
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:-
"9. ... On a plain reading of the amended provisions in clause (2), it is clear that now the High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court's territorial jurisdiction. Cause of action for the purpose of Article 226(2) of the Constitution, for all intent and purpose must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. The expression cause of action has not been defined either in the Code of Civil Procedure or the Constitution. Cause of action is bundle of facts which is necessary for the plaintiff to prove in the suit before he can succeed."
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:-
"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 minuscule 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).
(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 mala fide 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 (supra) and Adani Exports Ltd. (supra).
(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.
(h) Any decision of this Court contrary to the conclusions enumerated herein above stands overruled."
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:-
"10. ...The thrust of the argument is that even though the Tripartite Agreement dated 24th December, 2010 (supra) was executed at Kolkata but the same also did not tinker with the term of the initial agreement dated 29th July, 2005 vesting the jurisdiction exclusively in the Courts at Delhi. On enquiry as to how the parties by consent could vest the jurisdiction in an alien Court, it is contended that the parties in the present case even though executed the agreement at Kolkata, were entitled to retain the clause in the earlier agreement of exclusive jurisdiction of the Delhi Courts for the reason of the train subject matter of the agreement running between Delhi and Hatia (Ranchi).
11. Having given our thought to the argument aforesaid, we are unable to persuade ourselves to hold that the High Court at Delhi would have jurisdiction in the present facts and/or the High Courts at Kolkata would not be the appropriate Court to entertain the present controversy. ...
12. Though undoubtedly the initial contract dated 29th July, 2005 was executed at Delhi but the same was for the period till 28th July, 2010 only. In July, 2010 there was a drastic change in policy with respect to such contracts. While earlier (i.e. when the contract dated 29th July, 2005 was entered into) the Railways had hived off the mobile catering services to IRCTC and which in turn had awarded the contract to the appellant, under the Catering Policy 2010, the Railways decided to remove IRCTC and to take over the catering services unto itself and for better management thereof entrusted the same to the zonal railways. Thus the powers which earlier were exercised by IRCTC vis-à-vis the train subject matter of the agreement aforesaid, stood vested in the South Eastern Railways. Even though the subject train plies between Delhi and Hatia (Ranchi) but still the management of the contract with respect thereto fell in the lap of South Eastern Railways and of which as aforesaid there is no dispute. Thus, the factum of Delhi being one of the stations between which the train plies, is immaterial.
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14. ...We may notice that the initial agreement not only provided for the jurisdiction of the Courts at Delhi but also provided for the arbitration of the disputes and in which arbitration the sole arbitrator was to be appointed by the Managing Director, IRCTC. In the Tripartite Agreement it was however expressly provided that the right of appointment of the arbitrator stood assigned to the Chief Commercial Manager, South Eastern Railways. It thus cannot be said that the parties at the time of entering into the Tripartite Agreement did not touch the Dispute Resolution Mechanism. The said Mechanism having provided for arbitration, the parties agreed to the arbitration of arbitrator to be appointed by the CCM, South Eastern Railways and who can reasonably be expected to nominate an officer of the South Eastern Railways only as the Arbitrator. The clause in the initial agreement as to the jurisdiction of the Courts at Delhi and the amended agreement dated 24th December, 2010 have to be viewed in the light of the said change/amendment.
15. ...The challenge in a Writ Petition is to the arbitrary action of the South Eastern Railways, Kolkata. The Court competent to entertain such a challenge would be the Court at Kolkata only within whose territorial jurisdiction the South Eastern Railways with respect to whose action writ of certiorari is claimed is situated and not this Court. It is for this reason only that much emphasis cannot be laid on the agreement, even if any, between the parties of the jurisdiction of the Courts at Delhi. The said agreement was in the context of the then decision making authority being situated within the jurisdiction of this Court. However, now when under the changed policy and the agreement and to which the appellant has consented, the decision making authority is situated outside the jurisdiction of this Court, it cannot be said that the agreement of the jurisdiction of the Courts at Delhi subsists.
16. It cannot also be lost sight of that the appellant is approaching the Court in the exercise of its jurisdiction under Article 226 of the Constitution for impugning the action of the South Eastern Railways and seeking directive against the South Eastern Railways, Kolkata who are beyond the jurisdiction of this Court. The Catering Policy 2010 having vested all decisions in the matter in the zonal railways and the subject train having fallen in the South Eastern Zone, such jurisdiction can be exercised only by the High Court having jurisdiction over the said zone and which this Court admittedly does not have. We may notice that the Supreme Court recently in Interglobe Aviation Ltd. v. N. Satchidanand (2011) 7 SCC 463 has held that a clause in an agreement which ousts jurisdiction of all Courts having jurisdiction and conferring jurisdiction exclusively in one Court is valid only when the cause of action in part accrues within the jurisdiction of the Court in which exclusive jurisdiction is conferred and would have no application where no part of cause of action has accrued within the jurisdiction of such Court. It was further held that such an invalid clause conferring exclusive jurisdiction in the Courts at Delhi would not be validated if the entire cause of action had accrued outside Delhi and merely because the flight with respect whereto grievance was made had originated at Delhi. Similarly, in the present case, the clause even if any, of exclusive jurisdiction of Courts at Delhi would be invalid when the cause of action for the writ petition is the action of the South Eastern Railways at Kolkata."
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:-
"8. Thus, in order for the Court to have jurisdiction, the impugned action forming part of the cause of action, ought to have taken place within the territorial jurisdiction of the Court. The various orders of the Ld. Division Bench passed in similar circumstances are clear to the effect that this Court would not have territorial jurisdiction if the striking off has been directed by the authority in a different state. In those cases, before the Ld. Division Bench, the striking off orders were passed by the ROCs located in Kanpur and in Maharashtra. For e.g., the order of the Division Bench in Vishal Bhati (supra) reads:
"Considering the fact that the issue pertains to action taken by the Registrar of Companies, Kanpur and under identical situation with regard to action taken by Registrar of Companies, Mumbai on account of lack of territorial jurisdiction, we had refused to interfere into the matter earlier. Accordingly, we dismiss this petition also with liberty to the petitioner to file an appropriate petition before the Court having territorial jurisdiction over the matter".
9. In the present case the grievance of the Petitioner is not against the SFIO investigation. In fact, the Petitioner relies on the said investigation to argue that the name of the company cannot be struck off. Thus, the cause of action arose due to the act of the ROC in Chennai and not the Central Government's act of directing the SFIO investigation. The impact of Sub-Rule 3(1) on the striking-off of the name of the Petitioner-Company would be a legal argument which the Petitioner would have to raise before the appropriate forum.
The said forum would be entitled to consider the effect of Sub-Rule 3(1) and also to examine the legality of the order dated 25th October, 2019. The mere fact that the Central Government may have directed the SFIO investigation, would not vest jurisdiction in this Court, especially when the specific order impugned in this case has been passed by the ROC in Chennai. Accordingly, this Court is of the view that this Court lacks territorial jurisdiction to entertain the present writ petition."
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.
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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;
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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.
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