M.N. Bhandari, J.
1. By this Criminal Misc. Petition, order dated 26.2.2008 passed by the Chief Judicial Magistrate, Churu has been challenged.
2. Before going into the merits of the case, learned Counsel for petitioner was asked to address this Court regarding maintainability of the petition before Permanent Bench of Rajasthan High Court at Jaipur.
3. learned Counsel for petitioner submits that a case Under Section 138 of the Negotiable Instrument Act (for short 'the Act') has been initiated at Churu though cheque bearing No. 50158 was issued for Bank of Punjab Limited, Station Road, Jaipur. The complainant deposited cheque in a saving bank account at Churu, but was dishonoured by Bank of Punjab Limited at Jaipur. The cause of action to the complainant, thus, arose at Jaipur. It is stated that even if case is tried at Churu, a petition Under Section 482 of the Code of Criminal Procedure (for short 'the Cr.P.C') can be maintained before the Jaipur Bench as cause of action to the complainant arose at Jaipur. By giving reference of the judgment of the Hon'ble Apex Court in the case of Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. reported in 2001(3) CCC 238 (S.C.) it is submitted that Section 138 of the Act attracts even where the cheque is presented on the bank for its encashment and accordingly the cause of action in the present matter arose within the territorial jurisdiction of Jaipur Bench. Reference of judgment in the case of M.S. Santoshkumar v. K.G. Mohanan reported in 2008(2) NIJ 548 (Ker) has also been given to show the territorial jurisdiction of the Court. It is lastly urged that the issue aforesaid has been decided by this Court in the case of State of Rajasthan and Anr. v. Smt. Rekha Mahawar and Ors. reported in 2009(3) DNJ (Raj.) 1326 : RLW 2009(4) raj 3201. In the aforesaid case, issue of territorial jurisdiction between Jaipur Bench and Jodhpur Seat of Rajasthan High Court was decided and in reference to the aforesaid judgment, a petition Under Section 482 Cr.P.C. is maintainable before Jaipur Bench, even if the order impugned herein has been passed by the Chief Judicial Magistrate, Churu.
4. He submits that decisive factor for maintaining a petition before the High Court is based on the cause of action and not on the basis of the Court passing the order. Referring to the facts of the case of Smt. Rekha Mahawar (supra), it is stated that therein accident took place at Udaipur though a claim petition was filed before the Motor Accident Claims Tribunal, Ajmer (for short 'the Tribunal'). Aggrieved by the award of the Tribunal, an appeal was preferred before the Principal Seat Jodhpur. A defect was pointed out regarding territorial jurisdiction, however, Court overruled the aforesaid defect by a detailed order holding that cause of action arose within the territorial jurisdiction of the Principal Seat Jodhpur, thus even though claim petition was decided by the Tribunal at Ajmer, appeal would be maintainable before the Principal Seat of Rajasthan High Court at Jodhpur. A further direction has been given by the Court to scrutinize all the cases filed at both the places in past five years and if cause of action, as explained in the judgment falls within the domain of Principal Seat or Bench then to transfer the cases based on the finding in Para 24 of the said judgment. In reference to the aforesaid direction, it is submitted that since the cause of action, i.e., dishonour of the cheque is within the territorial jurisdiction of the Jaipur Bench, hence, in view of the direction in Para 24 of the aforesaid judgment, the present matter will later or sooner be placed before the Jaipur Bench, thus to avoid such a shifting, the petitioner has preferred this petition before this Hon'ble Court. Specific reference of Para 24(xi) of the judgment has been given.
5. I have considered the submissions made by learned Counsel for petitioner and looked into the matter carefully.
6. Before going into the merits of the case, it is necessary to decide as to whether this petition is maintainable before the Jaipur Bench or not. I am deciding the matter firstly on the aforesaid issue and if it is held to be maintainable, then only merits of the case would be looked into.
7. The issue regarding territorial jurisdiction to maintain a complaint Under Section 138 of the Act has been decided by the Hon'ble Apex Court in the cases cited by the counsel for the petitioner and according to him, cause of action arose within the territorial jurisdiction of Jaipur Bench also as cheque was dishonoured at Jaipur. The question yet remains as to whether Jaipur Bench has jurisdiction to entertain a petition Under Section 482 Cr.P.C. in regard to the order passed by the Chief Judicial Magistrate, Churu. To look into the aforesaid aspect, it is necessary to start from the stage when Jaipur Bench of the High Court was established. On formation of the State of Rajasthan, the President of India exercising the powers under Sub-section 1 of Section 51 of the State Reorganization Act, 1956 established Jodhpur to be Principal Seat of the High Court for State of Rajasthan. On 8.12.1976, the President of India issued an order for establishment of Permanent Bench at Jaipur which reads thus:-
In exercise of the powers conferred by Sub-section 2 of Section 51 of the State Reorganization Act, 1956 (37 of 1956), the President, after consultation with the Governor of Rajasthan and the Chief Justice of the High Court of Rajasthan, is pleased to make the following order, namely:-
1. Short title and commencement - (1) This order may be called the High Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976.
(2) It shall come into force on the 31st day of January, 1977.
2. Establishment of a Permanent Bench of the Rajasthan High Court at Jaipur - There shall be established a permanent Bench of the High Court of Rajasthan at Jaipur, and such Judges of the High Court of Rajasthan, being not less than five in numbers, as the Chief Justice of that High Court may, from time to time nominate, shall sit at Jaipur in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the districts of Ajmer, Alwar, Bharatpur, Bundi, Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawai Madhopur, Sikar and Tonk.
Provided that the Chief Justice of that High Court may, in his discretion, order that any case or class of cases arising in any such district shall be heard at Jodhpur.
New Delhi Sd/ FA
AHMAD
December 8, 1976 President
8. Under the aforesaid Presidential order, jurisdiction to the Permanent Bench at Jaipur was given in respect of 11 districts named therein. The Chief Justice of the High Court was given discretion to order that case or class of cases shall be heard at Jodhpur. Subsequent to the Presidential order, the Chief Justice issued three orders on 26th of December, 1976, 23rd of December, 1976 followed by last order on 12.1.1977. The validity of the Presidential order as well as orders passed by the then Acting Chief Justice of the High Court was challenged in a petition, Ram Rakh v. Union of India. The Division Bench dismissed the petition. The matter then travelled to the Hon'ble Apex Court. In para 11 of the judgment in the case of Rajasthan High Court Advocates Association v. Union of India reported in AIR 2001 SC 416, it was held that Permanent Bench at Jaipur is having its defined territorial jurisdiction, since the Presidential order makes bifurcation of State of Rajasthan in two parts for the purpose of territorial jurisdiction of the High Court between the Principal Seat and the Permanent Bench. Referring to the provisions of Section 44 of the Rajasthan High Court Ordinance so as to Section 54 of the aforesaid Act, the Hon'ble Apex Court decided the matter holding that issue of territorial jurisdiction between the Bench and the Principal Seat should be decided in the individual case taking note of the cause of action and other aspects. In Para 18 of the aforesaid judgment following was held, which is quoted thus:-
It was submitted at the end by the learned Counsel for the appellant that the Division Bench of the High Court in its impugned order has observed that the permanent bench at Jaipur shall have exclusive jurisdiction to hear the cases arising out of the 11 specified districts and the High Court at Jodhpur shall not have jurisdiction to hear those cases which fall within the territorial jurisdiction of Jaipur Bench. He submitted that the use of word exclusive pre-fixed to jurisdiction is uncalled for. We find no substance in this contention as well. The purpose of the Presidential Order is to carve out and define territorial jurisdiction between the principal seat at Jodhpur and the permanent bench seat at Jaipur. The cases are to be heard accordingly unless the Chief Justice may exercise in his discretion the power vested in him by the proviso to para 2 of the Presidential order. Clauses (1) and (2) of Article 226 of the Constitution provide how territorial jurisdiction shall be exercised by any High Court. Although the said clauses do not deal with principal seat or permanent bench of any High Court but in our opinion, there is no reason why the principle underlying thereunder cannot be applied to the functioning of the bifurcated territorial jurisdiction between the principal seat and permanent bench of any High Court. In case of a dispute arising whether an individual case or cases should be filed and heard at Jodhpur or Jaipur, the same has to be found out by applying the test from which district the case arises, that is, in which district the cause of action can be said to have arisen and then exercising the jurisdiction Under Article 226 of the Constitution.
9. Perusal of the aforesaid para clarifies that a specific bifurcation in regard to the territorial jurisdiction has been made between the Principal Seat at Jodhpur and the Permanent Bench at Jaipur. The case therein was accordingly taken up in reference to Article 226 of the Constitution of India and therefore judgment in case of Nasiruddin v. State Transport Appellate Tribunal reported in : AIR 1976 SC 331 was referred. The aforesaid judgment also clarifies territorial jurisdiction while exercising jurisdiction Under Article 226 of the Constitution of India and therein cause of action becomes relevant.
10. The judgment in the case of Rajasthan High Court Advocates Association (supra) was taken into consideration by the Coordinate Bench of this Court in the case of Smt. Rekha Mahawar (supra) along with other judgments. In the case of Smt. Rekha Mahawar (supra), a claim petition was preferred before the Motor Accident Claims Tribunal, Ajmer in regard to an accident at Udaipur. The Tribunal, Ajmer falls within the territorial jurisdiction of the Permanent Bench at Jaipur, however, the appeal was preferred before the Principal Seat at Jodhpur. The registry of the High Court pointed out defect regarding the maintainability of the appeal. The Coordinate Bench of this High Court overruled the aforesaid objection taking note of the fact that the cause of action i.e. the accident took place within the territorial jurisdiction of the Principal Seat at Jodhpur. The consideration of the issue of territorial jurisdiction is accordingly based on the cause of action. For that purpose, reference of the judgment in the case of Rajasthan High Court Advocate Association (supra) was given at the first instance. The Coordinate Bench further considered the judgment in the case of Kusum Ingots Alloys Ltd. v. Union of India and Anr. reported in : (2004) 6 SCC 254 wherein interpretation of the words 'cause of action' has been given. Same way other judgments on the issue pertaining to cause of action were considered and accordingly it was held that since the accident took place at Udaipur, falling in the territorial jurisdiction of Principal Seat, Jodhpur, the appeal is maintainable at Jodhpur, as cause of action took place at Udaipur.
11. The issue of 'cause of action' is material for maintaining a writ petition Under Article 226 of the Constitution of India and even for invoking the jurisdiction of the Civil Courts in view of the provisions of Section 20(c) of the Civil Procedure Code (for short 'the C.P.C.'). It may also be relevant while Court/Tribunal is approached in its original side. The issue for maintaining an appeal or a petition Under Section 482 of Cr.P.C., cause of action does not carry same significance rather in a case where an appeal is preferred to the High Court from an order passed by the subordinate court, cause of action keeps no significance. The judgment in Rajasthan High Court Advocates Association (supra) so also the judgment in the case of Nasiruddin (supra) are on the issue of cause of action mainly referring to the provisions of Article 226 of the Constitution of India. In the case of Rajasthan High Court Advocates Association (supra) reference of the order passed by the Chief Justice was denoting writ cases, as to where it would be maintainable. It is, thus, necessary to note that cause of action becomes material for maintaining a writ as would be clear from the perusal of the Article 226 of the Constitution of India, which is reproduced hereunder for ready reference:-
Article 226 - Power of High Courts to issue certain writs-
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise 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 ha(sic) as corpus, mandamus, prohibitions, 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
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition Under Clause (1), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by Clause (2) of Article 32
12. Perusal of the Article 226 of the Constitution shows that cause of action is having significance for maintaining a writ petition. The provision of Section 20(c) of the C.P.C. also makes a mention about cause of action for maintaining a suit. Thus, the judgments rendered in reference to Section 20(c) of the C.P.C. were also considered to determine the issue of cause of action for judging territorial jurisdiction of the High Court Under Article 226 of the Constitution of India. The various judgments referred by the Coordinate Bench in the case of Smt. Rekha Mahawar (supra) are mainly in reference to Article 226 of the Constitution of India for maintaining a petition except in the case of Stridewell Leathers (P) Ltd. v. Bhankerpur Simbhaoli Beverages (P) Ltd. reported in : (1994) 1 SCC 34 and few others. Therein the issue regarding the maintainability of the appeal against the order passed by the Company Law Board was under consideration and in reference to Section 10-F of the Companies Act, the matter was decided. The same is the position in the case of Sumitomo Corpn. v. CDC Financial Services (Mauritius) Ltd. and Ors. reported in : AIR 2008 SC 1594 wherein the issue was in reference to Section 50 of the Arbitration Act. In Nasiruddin's case (supra), after dealing with issue of jurisdiction Under Article 226 of the Constitution, it was further held that a criminal case would arise where offence has been committed and jurisdiction for trial is to be determined as per the provisions of the Cr.P.C. This is again for invoking original jurisdiction. In the aforesaid case, the issue involved was not of a criminal case, thus jurisdiction of the criminal cases has not been dealt with elaborately. It has to be kept in mind that question herein is not in regard to the territorial jurisdiction of the High Court Under Article 226 of the Constitution of India, thus matter needs further elaboration and clarification.
13. If the facts of Smt. Rekha Mahawar's case (supra) are looked into, then it was a case of accident, thus covered by the provisions of the Motor Vehicles Act of 1988 (in short 'the Act of 1988'). As per the amended provisions of Section 166 of the Act of 1988, a claim application can be maintained. For ready reference amended provisions of Section 166 of the Act of 1988 are reproduced hereunder:-
166. Application for compensation.
(1) An application for compensation arising out of an accident of the nature specified in Subsection (1) of Section 165 may be made-(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
1[(2) Every application Under Sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation Under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.]
2[***]
3[(4) The Claims Tribunal shall treat any report of accidents forwarded to it Under Sub-section (6) of Section 158 as an application for compensation under this Act. ]
Perusal of the aforesaid provision shows that a claim application can be maintained at the place where accident occurred, claimant resides or at place where defendant resides. Once a claim petition is maintained before a Tribunal as per the provisions of Section 166 of the Act of 1988, aggrieved by the award, appeal would be to the High Court. Section 173 of the Act of 1988 is quoted hereunder for ready reference:-
173. Appeals.
(1) Subject to the provisions of Sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent, of the amount so awarded, whichever is less, in the manner directed by the High Court:
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.
14. The aforesaid provision provides an appeal to the High Court. The expression 'High Court' has not been defined under the Act, however, in view of the judgment of the Hon'ble Apex Court, High Court necessarily means the High Court under whose territorial jurisdiction first order was passed. In few cases, even appellate or revisional orders were considered to be giving cause of action for maintaining a writ petition, but again it is for writ jurisdiction. The provision of Section 166 and Section 173 of the Act of 1988 are explained by one illustration for and in regard to the maintainability of the appeal. Illustration - if in a case, accident took place at Delhi. The claimant resides at Jaipur and accordingly he maintained a claim petition before the Motor Accident Claims Tribunal at Jaipur. On passing of the award, the appeal cannot be maintained before the High Court at Delhi taking cause of action to be basis, as Claims Tribunal at Jaipur is under the superintendence of the Rajasthan High Court. If ratio of Smt. Rekha Mahawar's case (supra) is applied, then taking note of the cause of action being the place of accident, an appeal before the High Court at Delhi can be maintained, which otherwise is not permissible as per the respective High Court's Act and Rules.
15. The aforesaid illustration has been given to clarify the position in reference to the provisions of the Act of 1988. The case in hand is arising out of the proceedings Under Section 138 of the Negotiable Instrument Act. If cognizance of the offence has been taken by a Court within the territorial jurisdiction of the Principal Seat at Jodhpur, then petition Under Section 482 of the Cr.P.C. cannot be maintained before the Permanent Bench at Jaipur as there exists clear bifurcation of the jurisdiction between the Principal Seat and Permanent Bench pursuant to the Presidential order. The then Acting Chief Justice of the Rajasthan High Court issued following order, which is quoted hereunder:
RAJASTHAN HIGH COURT, JODHPUR
NOTIFICATION
No. 1/J.B. Dated 23.12.1976
In pursuance of the High Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976, and in exercise of the powers Under Sub-section (2) of Section 44 of the Rajasthan High Court Ordinance, 1949, read with Sections 54 and 57 of the States Reorganization Act, 1956, Hon'ble the Chief Justice has been pleased to order that with effect from the 31.1.1977:
(a) all cases arising in the revenue districts of Banswara, Barmer,Bikaner, Bhilwara, Chittorgarh, Churu, Dungarpur, Ganganagar, Jailsalmer, Jalore, Jodhpur, Nagaur, Pali, Sirohi and Udaipur (except such case or class of cases as may by special order be transferred to the Jaipur Bench) shall be disposed of by the Court at Jaipur:
Provided that a Vacation Judge, whether sitting at Jodhpur or at Jaipur may hear any case irrespective of the district in which it has arisen for the purpose of deciding any matter which in his opinion requires immediate action.Explanation - A Writ case shall be deemed to arise in the district where the first order pertaining to that case was passed by a Court, Tribunal or Authority irrespective of the district in which the appeal or revision from that order is heard and irrespective also of the fact whether or not there has been any modification or reversal of the order in appeal or revision.
Sd/- Ved Pal Tyagi
Chief Justice
23.12.1976
On 12.1.1977 Acting Chief Justice issued yet another order substituting new explanation, which is also quoted hereunder for ready reference:
In the above order for the Explanation the following may be substituted:
Explanation - A writ case shall be deemed to arise in the district where the cause of action for issuing the first order pertaining to that case passed by a Court, Tribunal or authority has arisen irrespective of the district in which the appeal or revision from that order is heard and irrespective also of the fact whether or not there has been any modification or reversal of the order in appeal or revision.
Sd/- Ved Pal Tyagi
Chief Justice
23.12.1976
16. Perusal of the aforesaid notifications shows that all the cases arising out of the revenue districts mentioned in para (a) of notification dated 23.12.1976 were transferred to Jaipur and ordered to be disposed of by the Court at Jaipur. An explanation was added but same was in respect of writ cases. This clearly indicates that other than writ cases to be dealt with as per explanation, other cases were to be transferred and subsequent institution of the cases was to be as per the Presidential order. The subordinate Court working under the territorial jurisdiction of Principal Seat at Jodhpur or Permanent Bench at Jaipur become determining factor for further appeal or maintaining further miscellaneous petition. So far as the writ jurisdiction is concerned, that has been explained by the Hon'ble Apex Court in the case of Rajasthan High Court Advocate Association's case (supra). Last para of which has been quoted because last para of the aforesaid judgment makes a reference of exclusive jurisdiction of Permanent Bench at Jaipur vis-a-vis Seat at Jodhpur. For jurisdiction Under Article 226 of the Constitution, the Hon'ble Apex Court held that functional bifurcation of the territorial jurisdiction between Principal Seat and Permanent Bench would where cause of action took place. In case of any dispute, applying the test given in the aforesaid judgment, individual case would be decided. This is in regard to the writ jurisdiction otherwise functional bifurcation as recognized by the Hon'ble Apex Court in Rajasthan High Court Advocates Association (supra) makes it clear that for 11 Districts, Permanent Bench, Jaipur would be having exclusive jurisdiction. There is a bifurcation of the territorial jurisdiction for functioning between Principal Seat and Permanent Seat. It is divided with the subordinate Courts working in the respective revenue districts mentioned in the Presidential and Chief Justice's order read with High Court Rules. In view of the aforesaid, a petition Under Section 482 Cr.P.C. against the order passed by the Court at Churu cannot be maintained at Permanent Seat at Jaipur as Churu District falls within the territorial jurisdiction of Principal Seat at Jodhpur as per bifurcated functional jurisdiction.
17. To clearly understand the issue of territorial jurisdiction of the High Court, it is necessary to take note of the fact that mainly High Court is exercising following jurisdiction:
(i) the appellate/revisional jurisdiction in the civil as well as criminal side apart from civil miscellaneous appeal as well as criminal miscellaneous petition. This is the jurisdiction mainly exercised by the High Court in criminal and civil side arising out of the order passed by the subordinate Courts;
(ii) writ jurisdiction Under Articles 226 & 227 of the Constitution;
(iii) appellate jurisdiction over certain Tribunals exercising its jurisdiction under Excise Law, Income-tax Law, Company Law etc. and
(iv) election petition, arbitration and company law cases under its original jurisdiction.
The High Court is mainly exercising jurisdiction as indicated above apart from appellate jurisdiction by Division Bench.
1. First Category :
So far as the first category is concerned, while exercising the jurisdiction for the cases arising in civil or criminal side, appeal, revision or miscellaneous petition would be to the Principal Seat at Jodhpur or to Permanent Seat at Jaipur, from the subordinate Courts working respectively under Seat and Bench with bifurcated jurisdiction of various revenue districts. To clarify, if an order has been passed by a subordinate Court in civil/criminal side at Barmer, then district Barmer being under territorial jurisdiction of Principal Seat, Jodhpur, the jurisdiction of appeal, revision or miscellaneous petition would be to the Principal Seat at Jodhpur and therein cause of action would not be of any significance to determine the territorial jurisdiction of the High Court exercising its jurisdiction under category one. In fact, cause of action determines the jurisdiction at the initial stage when civil or criminal Court is approached.
2. Second Category:
So far as exercise of writ jurisdiction Under Articles 226 & 227 of the Constitution is concerned, cause of action is relevant to determine the territorial jurisdiction. In view of the aforesaid, determination of the territorial jurisdiction would be as to whether cause of action in part or whole arose within its territorial jurisdiction. The aforesaid issue has already been decided by the Hon'ble Apex Court in a catena of judgments as otherwise referred in Smt. Rekha Mahawar's case (supra) elaborately. The judgment in the case of Smt. Rekha Mahawar lays down the law regarding jurisdiction of the High Court while hearing writ Under Articles 226 and 227 of Constitution.
3. Third Category:
So far as third category of cases are concerned, appeal or reference to the High Court are provided in respect of legislations operating in the field of excise, custom, income-tax, company cases etc. The Tribunal or the Board functioning therein are not subordinate Courts to the High Court, yet as per the statutory provision, appeals/references are provided to the High Court. Determination of the jurisdiction in respect of those proceedings have been dealt with by the Hon'ble Apex Court in several cases. If the latest judgment on the subject is taken note of, then territorial jurisdiction of the High Court is to be determined as per the provisions of statute concerned. The cases of Stridewell Leathers Pvt. Ltd. (supra) so as Sumitomo Corporation (supra) have already been referred earlier and are covering the case of third category. Apart from those two judgments, the Hon'ble Apex Court dealt with the issue relating to third category in Ambika Industrial v. Commissioner of Central Excise reported in : 2007(6) SCC 769. In the aforesaid case, it was held that determination of jurisdiction should be on the basis of statutory provision. In Paras 17, 20 & 30 following observations have been made, which are quoted hereunder:
17. There cannot be any doubt whatsoever that in terms of Article 227 of the Constitution of India as also Clause (2) of Article 226 thereof, the High Court would exercise its discretionary jurisdiction as also power to issue writ of certiorari in respect of the orders passed by the Subordinate Courts within its territorial jurisdiction or if any cause of action has arisen therewithin but the same tests cannot be applied when the appellate court exercises a jurisdiction over Tribunal situated in more than one State. In such a situation, in our opinion, the High Court situated in the State where the first court is located should be considered to be the appropriate appellate authority. Code of Civil Procedure did not contemplate such a situation. It provides for jurisdiction of each court. Even a District Judge must exercise its jurisdiction only within the territorial limits of a State. It is inconceivable under the Code of Civil Procedure that the jurisdiction of the District Court would be exercisable beyond the territorial jurisdiction of the District, save and except in such matters where the law specifically provides therefor.
20. The situs of a Tribunal may vary from time to time. It could be Delhi or some other place. Whether its jurisdiction would be extending to 3 States or more or less would depend upon the Executive order which may be issued. Determination of the jurisdiction of a High Court on the touchstone of Sections 35G and 35H of the Act, in our opinion, should be considered only on the basis of statutory provisions and not anything else. While defining High Court in terms of Section 36B of the Act, the Parliament never, in our opinion, contemplated to have a situation of this nature.
30. In Nasiruddin (supra) and Kusum Ingots & Alloys Ltd. (supra), the court was not dealing with a question of this nature. Therefore, the same are not authorities for the proposition that the High Court, which is situated at the same place as the situs of the Tribunal, alone will have jurisdiction. If the cause of action doctrine, as analysed hereinbefore is given effect to, invariably more than one high Court may have jurisdiction, which is not contemplated.
Perusal of the aforesaid shows that determination of appellate jurisdiction can be as per the statutory provision and not based on cause of action doctrine. In the case of Cannal Steel Pvt. Ltd. v. Commissioner of Customs reported in 2007 (14) SCC 464, case of Ambika Industries (supra) has not been referred though decided earlier. However, even if the aforesaid judgment is looked into, then cases falling in third category, appeal/reference can be maintained before the High Court in whose jurisdiction the original adjudication order or the appellate order was issued. Cannal Steel Pvt. Ltd.'s judgment has noticed earlier judgment in the case of Kusum Ingots Alloys Ltd. (supra) and all other judgments. However, it is to be kept in mind that those judgments are in reference to the order passed by the Tribunal or the Board, which are not subordinate to the High Court, yet appeal/reference has been provided to the High Court. In view of the decision in Ambika Industries and Cannal Steel Pvt. Ltd. (supra), the jurisdiction has to determine for cases falling in third category and it is not based on cause of action.
4. Fourth Category:
So far as fourth category is concerned, matters relating to the election petition, arbitration and company laws, again territorial jurisdiction of the High Court would be as per the statutory provision therein. The Company Judge of the High Court will exercise jurisdiction as per the provisions of the Company Law and the same is the position in the case of arbitration where the exercise of jurisdiction by the High Court would be subject to territorial jurisdiction as per the provisions of Arbitration & Conciliation Act, 1996.
18. In view of the aforesaid finding, direction of this Court in the case of Smt. Rekha Mahawar (supra) more specifically in Para 24 becomes perineurium, other than for cases falling in second category and otherwise is to be considered as obterdicta because therein matter was essentially arising out of the award passed by the Motor Accident Claims Tribunal. Even for the matters falling under the excise law, company law etc., jurisdiction has to be determined in view of the judgment of the Hon'ble Apex Court while dealing with the cases of category third mentioned above and would not be based on the place where manufacturing of goods takes place. Direction of Para 24 goes contrary to the judgment of the Hon'ble Apex Court. As per Section 166 of the Act of 1988, a claim petition is not necessarily to be filed where accident took place but can be at the place where claimants reside or the defendants exist. In the case of Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation reported in : (2009) 8 SCC 646, the Hon'ble Apex Court held that Motor Accident Claims Tribunals are subordination of the High Court, hence, appeal can be maintained to the High Court as per the judgment of the Hon'ble Apex Court referred above.
19. Coming to the facts of this case, since cognizance order has been passed by the subordinate Court falling within the functionally bifurcated territorial jurisdiction of Principal Seat at Jodhpur, thus the order passed by the said Court can be challenged by maintaining appeal, revision or miscellaneous petition before the Principal Seat at Jodhpur alone. The position for filing of the writ petition may, however, be different.
20. In view of the discussion made above, I am of the view that this miscellaneous petition Under Article 482 Cr.P.C. is not maintainable before Permanent Bench at Jaipur and accordingly same is dismissed. The petitioner would, however, be at liberty to maintain a miscellaneous petition before the Principal Seat at Jodhpur.