Chemithon Engineers Pvt. Ltd. Vs. Secretary, Department of Atomic Energy and ors. - Court Judgment

Surinder Singh Nijjar, C.J.

1. This Letters Patent Appeal is directed against the judgment of the Learned Single Judge dated 6th February, 2009 rendered in W.P. No. 477(w) of 2009. By the aforesaid judgment, the Learned Single Judge has passed the following operative directions:

On this petition being received, an interim order was made staying all further proceedings before the patent office. Since the petitioner says that its appeal from the order dated November 7, 2008 is pending and the petitioner has not had an opportunity of presenting its case before the appellate tribunal, the hearing of the private respondent's objection to the patent will remain stayed for a period of eight weeks from date or the first opportunity that the petitioner is afforded to make a prayer for an interim order in the appeal, whichever is earlier. If the petitioner cannot persuade the appellate tribunal to allot it a date for hearing its interim prayer within the time stipulated, it will be open to the controller to proceed with the matter in accordance with law.

WP No. 477(w) of 2009 is disposed of. The parties will pay and bear their own costs.

2. We may notice the basic facts as pleaded by the parties. The Secretary, Atomic Energy, Government of India (respondent No. 1 herein) applied for a patent for its invention for method of treating gas emissions by and under Application No. 31/Bom/1999. This application was made on 12.01.1999 to the Controller of Patents and Designs and Trademarks at Bombay. The respondent No. 1 is directly involved in basic research in nuclear sciences and allied areas including frontier areas in physics. Heavy Water Board is one of the Organisations under the control of respondent No. 1. The application for grant of patent was notified on September 25, 2004. No opposition was filed by the appellant or any third party, including respondent No. 5. The patent was granted in favour of the respondent No. 1 being Patent No. 194122 on April 26, 2005. On 20th August, 2006, Dr. V.V. Rao, respondent No. 5, filed post grant oppositions under Section 25(2) of the Patents Act, 1970. On November 20, 2006, Government of India filed an application for amendment of the specifications of the patent. The appellant filed a notice of opposition to the proposed amendments on February 2, 2007. Initially, the Assistant Controller had intimated the date of hearing as June 7, 2007. By a letter dated June 7, 2007, the Assistant Controller intimated adjournment of the hearing in respect of the opposition so that the proposed amendments in the claims may be notified and the proceedings under Section 57 of the Act be first disposed of. This letter was, however withdrawn and date was fixed on August 8, 2007 to hear the oppositions. Respondent No. 1 requested for notification of amendments prior to hearing of oppositions. However, the date of hearing was confirmed by the respondent authorities. Thereafter, the hearing was adjourned sine die in view of the submissions made by respondent No. 1. The Respondent No. 1 was insisting that if the opposition proceedings were first heard, the amendment proceedings at a later stage, would become pointless. To avoid such hearing of opposition prior to the amendments claim, respondent No. 1 was constrained to file the WP No. 23451(w) of 2007 before this Court. The writ petition was opposed by the appellant and Dr. V.V. Rao. In the meantime on 10.1.2008 the Assistant Controller informed about fixing of hearing on January 28, 2008, to dispose of the amendments proposed by respondent No. 1. But the hearing was not held as the statutory process of documentation had not been completed.

3. The aforesaid writ petition was disposed of by the Learned Single Judge of this Court by order dated 29th April, 2008 which was as follows:

A point has been taken by the learned Advocate for the respondents that there is no cause of action arises within the jurisdiction of this High Court.

However, it has been submitted by Mr. Talukdar, learned Advocate for the respondent No. 5 that advertisement has already been published in the matter and the advertisement of the amendment application has been published on 14th September, 2007.

In view of that since I am not deciding the question of territorial jurisdiction of this High Court in the matter and since the advertisement has already been published, the authorities are directed to take steps to dispose of the application in accordance with provisions of law.

The application is thus disposed of.

There will be no order as to costs. Xerox certified copy of this order, if applied for, be given to the learned Advocate for the parties.

4. After protracted proceedings, hearing of oppositions only relating to amendments was concluded by the Authority on 25th September, 2008 and November 7, 2008. The main oppositions to the grant of patent were not heard. The Assistant Controller rejected the amendment application 'for the time being' by order dated 7th November, 2008. Against this order, respondent No. 1 filed an appeal before the Intellectual Property Appellate Board at Chennai on 19th November, 2008. The Assistant Controller was informed of the filing of the appeal by respondent No. 1 through letter dated November 26, 2008. Even then the Assistant Controller fixed the hearing of the main oppositions proceedings through a communication dated 5th January, 2009 fixing the hearing on 19th January, 2009.

5. Apprehensive that injustice would be caused in case the oppositions were heard before the decision in the appeal pending before the Intellectual Property Appellate Board, the respondent No. 1 was constrained to file WP No. 477 (w) of 2009 on 12.1.2009 in this Court. Hearing of the writ petition was fixed on 22.1.2009, permitting respondent No. 1 to seek adjournment of the hearing on 19.1.2009. That hearing was fixed on 28.1.2009, even though hearing of the writ petition was fixed on 27.1.2009. On 28.1.2009 the High Court stayed the opposition proceedings before the Assistant Controller till disposal of the writ petition.

6. This writ petition was disposed of by the Learned Single Judge on 6th February, 2009 by passing the operative directions as reproduced above. The present Letters Patent Appeal has been filed against the aforesaid judgment.

7. Some additional facts have been pleaded by respondent No. 1 in the affidavit-inopposition to the stay petition filed by the appellant which may be noticed, as they would be of some relevance in adjudicating the lis between the parties. On 24th February, 2009, the respondent No. 1 filed a stay petition before the Appellate Board. On 25.2.2009 the present appeal was filed. The respondent No. 1 also sought early hearing of the stay petition. Unmindful of this, the Assistant Controller fixed hearing of review petition filed by the appellant on 2.11.2009. According to respondent No. 1, it was wrongly termed as an interlocutory petition by the Assistant Controller. This was objected to by respondent No. 1. But still the date of hearing was fixed on 20.04.2009. In the meantime the application of respondent No. 1 for early hearing was heard by the appellate Board on 30.3.2009. The appellate Board passed the following order:.Heard Both Counsels. After hearing the Counsel for the appellant we are satisfied that there exists pressing need to maintain status quo in the pending post grant opposition and therefore an interim order staying the hearing fixed for 20.04.2009 before the Assistant Controller of Patents that he shall not hear the matters fixed for hearing on 20.04.2009, except the review petition. Therefore, the Assistant Controller may hear the review petition only on 20.04.2009. Further the Counsel for the appellant has undertaken that he will file necessary application for staying post grant proceedings concerning patent No. 194122 after the requisite application is received by the Appellate Board.

8. We have heard the learned Counsel for the parties. The learned senior counsel for the appellant, Mr. Anindya Mitra and Mr. Samit Talukdar submit that the Learned Single Judge has erred in law in holding that this Court has jurisdiction to receive the writ petition. No cause of action or part of cause of action had arisen within the jurisdiction of this Court. Even if a small part of the cause of action had arisen within the jurisdiction of this Court, respondent No. 1 ought not to be permitted to choose his High Court in the matter of presentation of a writ application, he should be directed to approached that High Court which has by far the largest connection with the facts giving rise to his grievance. The Learned Single Judge has erred in coming to the conclusion that a possible test to assess whether a part of the cause of action has arisen within the jurisdiction of the High Court, would be to ascertain whether the High Court in exercise of its original jurisdiction of any Court, over which the High Court exercise its superintendence, would have the authority to receive a suit on the same cause of action. Learned Counsel further submitted that even if this test is accepted, this Court would have no territorial jurisdiction to entertain the suit. Learned Counsel further submitted that the Learned Single Judge erred in holding that forum conveniens is a bogey. The Learned Single Judge erred in holding that the plea of forum conveniens could not be taken by the private respondent i.e. the appellant herein. Lastly, it is submitted that the writ petition ought not to have been entertained by the Learned Single Judge as respondent no 1 had already challenged the order dated 7th November, 2008 before the Appellate Board.

9. In support of the submissions, the learned Counsel have relied on certain facts which may be briefly noticed. Notice of hearing dated 5th January, 2009 was issued by the Officer Superintendent, Controller of Patents and Designs having his Office at Mumbai. Opposition proceeding filed by the appellant under Section 25(2) of the Patents Act is pending before Assistant Controller of Patents, Bombay. The order dated 7th November, 2008 was passed by the Assistant Controller at Mumbai. The appeal filed by respondent No. 1 against the order dated 7th November, 2008 is pending before the Appellate Board at Chennai. The Controller General of Patents is situated at Mumbai and not at Salt Lake, Kolkata as sought to be pleaded by respondent No. 1. Respondent Nos. 2 and 3 have no connection with issuance of notice of hearing dated 5th January, 2009. They were made parties only for invoking jurisdiction of this Court. The patent office (Head Office) situated at Salt Lake City, Kolkata has nothing to do with the order dated 7th November, 2008 or the opposition proceedings pending before the Assistant Controller, Mumbai or the notice of hearing dated 5th January, 2009. Prior to September 2007, notices and communications from the patent office were served on the Attorney of respondent No. 1, S. Majumdar & Co. at Mumbai. It was only on a written request made by the aforesaid Attorney that notices were sent to the Kolkata address of the Attorney. As far as respondent No. 1 is concerned, the appropriate office of the patent office is situated at Mumbai. The notice dated 5th January, 2009 does not infringe or threaten infringement of any legal right of respondent No. 1, within the territorial jurisdiction of this Court.

10. In support of the submissions, the learned Counsel have relied on a number of judgments which are as under:

Sl. No. Citation Cause Title1. : (2008) 3 SCC 456 Eastern Coalfields Ltd. and Ors. (para 13) v. Kalyan Banerjee. 2. : (2004) 6 SCC 254 Kusum Ingots & Alloys Ltd. (para 30) v. Union of India and Ors. 3. (2007) 11 SCC 335 Alchemist Ltd. v. State Bank of Sikkim and Ors. 4. : (2004) 9 SCC 786 National Textile Corporation Ltd. v. Haribox Swalram 5. : AIR 1953 SC 210 Election Commission v. Saka (para 3, 6 & 7) Venkata Subba Rao 6. : AIR 1961 SC 532 Lt. Col. Khajoor Sing v. Union (para 7) of India and Ors. 7. : AIR 1979 Cal 354 Abdul Kafi Khan v. Union of (para 9,10) India and Ors. 8. 1994 (1) CHN 445 S.S. Jain & Co. v. Union of India and Ors. 9. 90 CWN 438 Everest Coal Co. Pvt. Ltd. v. Coal Controller 10. : (2006) 6 SCC 207 Om Prakash Srivastava v. Union of India 11. : (2007) 6 SCC 769 Ambica Industries v. Commissioner of Central Excise

11. On the other hand, Mr. S. K. Kapoor, Learned Senior Advocate and Mr. Ranjan Bachawat learned Counsel for the respondents, have submitted that essentially two proceedings were pending before the Assistant Controller, Mumbai. Firstly, it was the application for amendment made by respondent No. 1. Secondly, it was the oppositions filed by the appellants under Section 25(2) of the Patents Act, 1970. In spite of repeated requests, the Assistant Controller decided to hear the opposition of the appellant, first. This attitude of the Assistant Controller compelled respondent No. 1 to file WP No. 23451(w) of 2007. This writ petition was disposed of with a direction to the Assistant Controller to proceed in accordance with law. Even then, the Assistant Controller persisted in his attitude and rejected the amendment application for the time being by order dated 7th November, 2008. Without wasting any time, respondent No. 1 filed the statutory appeal before the Appellate Board at Chennai. In the aforesaid appeal, an application for stay of further proceedings before the Assistant Controller at Mumbai had also been made. However, as neither the appeal nor the stay application were being decided by the Appellate Board, respondent No. 1 was constrained to file writ petition, in which the impugned order has been passed by the Learned Single Judge. According to the learned Counsel, the appeal has been rendered infructuous as the eight weeks stay granted by the Learned Single Judge has already expired. Even otherwise, no appeal is competent at the instance of the appellant who was private respondent No. 5 to the writ petition. Respondent Nos. 2, 3 and 4 have not filed any appeal nor did they oppose the writ petition. These respondents did not raise the issue of forum non conveniens. Therefore, the Learned Single Judge has correctly concluded that the bogey of forum non conveniens has been inappropriately raised by the appellant. Government of India granted the patent in respect of a technology which would substantially reduce, if not eradicate, environmental pollution by treating exhaust gas emissions having a specific alkaline pH produced during the combustion of coal having a specific low sulpher content in a coal combustion Plant. This pollution controlling device has been successfully commissioned by HWB at several Thermal Power Plants. The technology was temporarily transferred by the appellant by way of a non-exclusive user licence through a memorandum of understanding (MOU) dated 12th September, 2000 for five years. Therefore, the licence of the appellant expires on 11th September, 2005. The technology has been transferred to a number of industries. The appellant was seeking the renewal of the licence. Being unsuccessful, the appellant as a counter blast mala fide filed the post grant oppositions under Section 25(2) of the Patents Act, 1970. Since the licence has not been granted to the appellant, its sole motive has been to delay the proceedings before the Assistant Controller for amendment of the patent. It was in these compelling circumstances that respondent No. 1 had pleaded before the Assistant Controller for a decision on the amendments before the oppositions of the appellant were taken up for considerations. Respondent No. 1 was apprehensive that Assistant Controller may be biased and, therefore, filed writ petitions in this Court. According to Mr. Kapoor, this Court would have territorial jurisdiction as the patent office (Head Office) Government of India is situated at Salt Lake City, Kolkata. Learned Counsel further submitted that since the notice dated 5th January, 2009 has been served on the Attorney of respondent No. 1 in Kolkata, clearly there is an infringement or at least a threatened infringement of its legal rights within the territorial jurisdiction of this Court. According to the learned Counsel, the Learned Single Judge has correctly decided the issue of territorial jurisdiction. In support of his submissions learned Counsel relied on the decision of Sri Zafar Khan v. Coal India Ltd. and Ors. 2009 (2) CLT 111(HC). Learned Counsel also relied on Navinchandra N. Majithia v. State of Maharashtra and Ors. : (2000) 7 SCC 640. On the basis of these judgments the learned Counsel submits that part of cause of action may arise in a number of places. Therefore, jurisdiction would vest in any of the High Courts. According to the learned Counsel the judgment of the Learned Single Judge is in accordance with the Article 226(1) and (2) of the Constitution of India.

12. We have considered the submissions made by the learned Counsel for the parties. Although we have narrated at some length about the nature of the dispute between the parties pending before the various authorities under the Patents Act, 1970, it would not be necessary to discuss the merits thereof as the issue involved herein pertains purely to the maintainability of these proceedings in this Court. The appellant claims that the writ petition filed by respondent No. 1 could not have been entertained as this Court would has no territorial jurisdiction. On the other hand, respondent No. 1 claims that this Court has the territorial jurisdiction as part of the cause of action as arisen within the jurisdiction of this Court.

13. The issue clearly has to be decided on an interpretation of Article 226 of the Constitution of India. Article 226(1) empowers the High Court to issue writ of or in the nature of mandamus to any person or authority within its jurisdiction for the enforcement of any of the fundamental rights conferred by part III of the Constitution. Article 226(2) also empowers the High Court to issue directions, orders or writs where a part of the cause of action against any Government authority or person arises within the territorial jurisdiction of the High Court. Even though, the seat of such Government, authority, or the residence of such person is not within its territorial jurisdiction. The aforesaid provision has been interpreted by the Supreme Court in a number of cases, which will be noticed a little later.

14. The Learned Single Judge has considered all the judgments that have been cited before us and recorded the following conclusions:

The scope of the present proceedings is rather limited. The petitioner steers clear of making a frontal challenge to the order dated November 7, 2008 as that is the subject matter of its appeal before the appropriate tribunal. The underlying theme of the petition is that if the statute has recognized the right of appeal from an order of the kind that was made on November 7, 2008, it would be harsh and arbitrary for the petitioner to be denied such opportunity by the needless haste that the patent authorities have shown.

15. The Learned Single Judge after notices the opinion expressed in a judgment of New Zealand reported at [2001] NZIPOPAT 20 (Valinge Aluminium AB v. Unilin D cor NV) and a judgment of the Federal Court of Australia reported at [2001] FCA 787 (England Biolabs Inc v. Commissioner of Patents), and observed:

These two authorities are otherwise irrelevant in the present context but would at least go to show that an arguable case can be made out by the petitioner in the appeal and that the appeal has not been filed merely to ward off the imminent hearing of the opposition to the patent. It was incumbent on the petitioner to establish an arguable case in the appeal to excite a writ court to exercise its discretion in a matter of the present nature. But the exercise of any discretion on the merits of the matter can only come into play if the objector's protest on this Court's jurisdiction to receive the petition fails.

16. On the issue as to whether this Court has territorial jurisdiction to entertain the writ petition the Learned Single Judge first discusses the meaning of the expression 'cause of action'. It is held that in view of the judgments of the Supreme Court there is no further need for clarification of the expression. Thereafter, the conclusion is as follows:

In a sense, a civil writ petition is merely a procedural matter: in that it is brought before a specified constitutional forum rather than a regular court. Every civil matter which is made the basis of a writ petition can also be urged in a suit unless there is a specific bar by statute, or a bar by necessary implication, to a suit being founded on such cause. The only matter that a civil court, not being a High Court exercising original jurisdiction, cannot take up is a challenge to the constitutionality of any enactment. A possible test to assess whether a part of the cause of action has arisen within the jurisdiction of the High Court receiving the writ petition would be to ascertain whether such High Court in exercise of its original jurisdiction or any court over which the High Court exercises superintendence, would have the authority to receive a suit founded on the same cause of action. The first limb of Article 226 appears to correspond to Clause (1) of Article 227 of the Constitution. Though the situs of the cause of action is irrelevant for the purpose of Article 226(1) of the Constitution and a writ petition can be instituted in a High Court if either the opening condition in Article 226(1) is met or the condition relating to situs of cause of action in Clause (2) is satisfied, if a court subordinate to that High Court is entitled to entertain a suit founded on a cause of action (disregarding, for the moment, any possible statutory bar to the institution of a suit), that High Court will have the authority to receive a writ petition founded on the same cause of action. For, the territorial jurisdiction of a civil court subordinate to a High Court (or the original jurisdiction of a chartered High Court) will be a subset of what is covered by the expression 'exercising jurisdiction in relation to the territories' appearing in Article 226(2) of the Constitution.

17. The learned Single Judge then discusses the principle of forum conveniens. It is held that:

the High Court may exercise its discretion not to proceed with the petition on its appreciation that the matter may be more conveniently carried to another High Court within whose territory the better part of the cause of action has arisen...

The authorities do not say that the principle of forum conveniens would apply strictly. Kusum Ingots speaks of such principle being kept in mind and being a relevant consideration in the exercise of discretion to receive a petition by a High Court. The bogey of forum conveniens is ordinarily raised by a defendant in a civil suit citing its convenience, whether by way of costs or otherwise, to bring material and witness to effectively defend the suit.

18. On forum non conveniens the Learned Single Judge further observes as follows :

It must be borne in mind in the present matter that the alternative case of forum non conveniens has been run, not by the respondent authority but by the private respondent. Ordinarily the discretion on such count would be exercised on the assessment of the inconvenience likely to be occasioned to the authorities who are the respondents to the action and not necessarily on the private respondent's inconvenience. It is accidental in the present case that the private respondent also has its place of business in Mumbai and would find the Bombay High Court the more convenient forum for the writ petition. But an objector to a patent application or a person seeking revocation of the grant may be situated in a place other than where the respondent authorities in a writ petition would find it more convenient to contest the action. In the exercise of the discretion in such case it would be the respondent authorities' inconvenience that would be the guiding factor and not the private respondent's for the objector in this case could easily have been from, say, the North-East to whom Calcutta would have been a less inconvenient forum than Mumbai.

19. With utmost respect we are unable to agree with the observations made by the Learned Single Judge. We do not discern any restraint placed on a private party raising the issue of forum non conveniens. We also do not see any ratio of law which permits that discretion with regard to directing parties to seek remedies in a High Court which will be convenient to all the parties is to be exercised only at the instance of respondent authorities such as respondent No. 1 in the present case. In the case of Kusum Ingots & Alloys Ltd (supra) the Supreme Court considered the issue of forum non conveniens while considering the issue with regard to territorial jurisdiction of a High Court under Article 226(2) of the Constitution of India. It is held that indisputably even if a small fraction of a cause of action accrues within the jurisdiction of High Court, the High Court will have jurisdiction in the matter. However, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merits. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. The Supreme Court considered and approved the Division Bench judgment of this Court in the case of S. S. Jain & Co. (supra) in the following words:

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 : AIR 1941 Cal 670, Madanlal Jalan v. Madanlal (1945) 49 CWN 357 Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd. 1997 CWN 122, S.S. Jain & Co. v. Union of India (1994) 1 CHN 445 and New Horizons Ltd. v. Union of India : AIR 1994 Del. 126.

20. In S. S. Jain & Co. (supra) case the Division Bench observed as follows:

19. The High Court, in appropriate cases, can and should, examine the bundle of facts constituting the cause of action to see if some other High Court can be said to be dominantly connected with the cause of action, rather than itself. In case the High Court comes to such a conclusion, then in my opinion, it would be improper for the writ petitioner to proceed in the High Court having a far less, and a mere slender connection with the cause of action. The writ petitioner in that case should be relegated to seek his remedy before that other High Court, having the dominantly larger connection. Just as a litigant is not permitted to choose his judge, so also shall a litigant not choose his High Court in the matter of presentation of his writ application. He shall approach that High Court only which has by far the largest connection with the facts giving rise to his grievance.

20. There might well be cases where the distinction becomes too fine, and two High Courts might both be said to have roughly similar connection with the cause of action. Making too fine, a distinction in these matters, moreover, would work injustice to the petitioner, and the Courts cannot deny relief to a petitioner upon too strict a decision in these matters. But if the cause of action is such as shows a preponderance of facts connected with the other High Court, and if the respondent authorities also happen to be within the local limits of that other High Court, than the High Court connected with only a small part of the cause of action should unhsitatingly refuse relief to the petitioner and send him elsewhere. It is a salutary principle to follow, as the prospective writ petitioners as well as the prospective respondents will know where approach is to be made, and none will try to by pass one High Court in preference for another. We, the Judges, look upon such preferment with suspicion, and deeply discourage any such tendency in any litigant.

21. The same ratio of law has been laid down by the Supreme Court in the case of Ambica Industries (supra) in the following words:

40. 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 material facts. The expression material facts is also known as integral fact.

41. Keeping in view the expression 'cause of action' used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum conveniens may also have to be considered.

22. In view of the aforesaid observations, we would be rather reluctant to offer any encouragement to respondent No. 1 to initiate or continue with proceedings in this Court.

23. In our opinion it would be much more appropriate for respondent No. 1 to seek the remedy in the Bombay High Court. We are also of the opinion that the situation obtaining in this appeal would be squarely covered by the observations of the Supreme Court in Aligarh Muslim University v. Vinay Engineering Enterprises (P) Ltd. : (1994) 4 SCC 710.

2. We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction. The contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, even the contracts provided that in the event of dispute the Aligarh court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondent was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none by adopting a queer line of reasoning. We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable.

24. Similarly, in National Textile Cor. Ltd. (supra) it has observed as follows:

12.1. As discussed earlier, the mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained. In view of the above finding, the writ petition is liable to be dismissed. However, in order to avoid any further harassment to the parties and to put an end to the litigation, we would examine the matter on merits as well.

25. On territorial jurisdiction the Learned Single Judge has held :

The discretion is between a question of maintainability of a writ petition and a matter of discretion to be exercised to receive the petition. If no part of the cause of action in the writ petition arises within the territory of a High Court and the first limb of Article 226(1) is also not satisfied, the High Court would plainly have no power to receive the petition. If, however, despite the first limb of Article 226(1) not being met, an infinitesimal part of the cause of action in the petition is seen to have arisen within the territory of a High Court such High Court can receive the petition but may be minded to ask the petitioner to launch the proceedings before another High Court on its assessment of the weight of the bundle of relevant facts that has nexus with it against the weigh of the bundle of relevant facts that has no connection with it. No discretion can be exercised if the authority to receive an action is absent. Discretion comes into play only when there is first the power to entertain the action.

26. On infringement or a threatened infringement of a legal right to vest jurisdiction in this Court the Learned Single Judge has held as follows:

But the assessment of inconvenience would arise only if it is seen that this Court has the authority to receive this petition. The statutory rule in the present case required the patent office to issue a notice to the address supplied by the patentee or on its behalf and, irrespective of the situs of the patentee, the notice was required to be sent to such recorded address. The object of a notice of the kind that is relevant in the present proceedings is to make the noticee aware of the date of hearing. Implicit in the notice impugned herein is the patent authorities' decision to continue with the hearing on the objection to the patent without waiting for a decision on the petitioner's appeal. And this is the petitioner's cause for this action. For the purpose of the present petition and in the context of the prayers made, the notice of January 5, 2009 is central and the receipt of such notice in Calcutta would be part of the cause of action in this petition.

The notice here is that of a specialized authority having the legal sanction to deal with a property of the petitioner that has issued a notice touching upon the petitioner's right to such property, which has been made the foundation of the challenge and the basis for instituting the petition on this Court. There is, therefore, a part of the cause of action of the petitioner that has arisen within the territory of this High Court. To make such fact irrelevant and hold that the cause of action accrued where the notice emanated from, would be to negate the effect of the Fifteenth Amendment to the Constitution. In the absence of the respondent authorities here citing inconvenience, the private respondent's challenge on such score is also greatly diminished in value. Further, on a consideration of the extent of the adjudication necessary in the context of the prayers made in the writ petition, it appears that there is nothing more than the notice, and the underlying decision embodied therein, that is required to be assessed. A part of the cause of action of the petitioner has arisen within the territory of this High Court and, given the narrow compass of the adjudication necessary, the facts do not warrant this petitioner being directed to another High Court.

27. It may be appropriate at this stage to analysis the conclusions of the Learned Single Judge recorded above in view of the law laid down by the Supreme Court and this Court on the same issues. The Learned Single Judge notices that the order dated November 7, 2008 has not been challenged by respondent No. 1 on merits. At the same time the Learned Single Judge concludes that the issues raised by respondent No. 1 before the Appellate Board is arguable, on the basis of the two judgments of New Zealand and Australia (supra), although the same have been held to be irrelevant for the decision of the controversy raised in the proceedings. Implicit in this conclusion is the acceptance by the Learned Single Judge that the issue cannot be decided by this Court on merits as the matter is pending in appeal before the appropriate authority. In our opinion, entertaining the writ petition in such circumstances would be an exercise in futility. Clearly, respondent No. 1 had filed the writ petition for the limited purpose of stalling the proceedings before the Assistant Controller, Mumbai. The same relief was available to respondent No. 1 in the appeal filed before the Appellate Board which is the competent authority. It was not disputed in the writ petition that the respondent No. 1 could have obtained the same relief in appeal. Indeed, we have noticed earlier that after obtaining an order from this Court for stay of proceedings before the Assistant Controller for a period of 8 weeks on 6th of February, 2009, respondent No. 1 moved the necessary application for stay before the Appellate Board on 13th April, 2009. The Learned Single Judge while discussing the issue with regard to forum conveniens accepts that the High Court exercising self-restraint may direct the writ petitioner to avail an alternative remedy which is recognized by law. Having so observed, the Learned Single Judge proceeds to entertain the writ petition, which in our opinion, was erroneous exercise of jurisdiction in favour of respondent No. 1. It was a clear case of a party availing of multiple remedies before different forums to some how obtain a favourable order. In our opinion, the principle against 'forum shopping', would apply with equal vigour and vitality to High Court hunting. We are, therefore, unable to agree with the aforesaid reasoning of the Learned Single Judge.

28. Coming now to point number three. We are unable to accept, entirely, the reasoning adopted by the Learned single Judge. A civil writ petition is no more of a procedural matter than a civil suit. Article 226 of the Constitution is a substantive Constitutional right enabling an aggrieved party to seek enforcement of any of the fundamental rights conferred by Part III of the Constitution of India. Under Article 226 and Article 227 of the Constitution of India, the High Court exercises power of judicial review of administrative action. Such power also vests in the Supreme Court under Article 32 of the Constitution which provides for remedy for enforcement of rights conferred by Part III of the Constitution of India. Judicial review under Articles 32 and 226 of the Constitution of India has been accepted as part of the basic structure of the Constitution of India. This view of ours will find support from the judgment of the Supreme Court in the case of His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. : (1973) 4 SCC 225. With the aforesaid rider we would accept the proposition that a possible test to assess whether a part of the cause of action has arisen within the jurisdiction of this Court would be to ascertain whether this Court would have received a suit founded on the same cause of action. Learned Single Judge noticed the observations made by the Supreme Court in the case of : (1985) 3 SCC 217 (State of Rajasthan v. Swaika Properties) which are as follows:

8. The expression 'cause of action' is tersely defined in Mulla's code of Civil Procedure:

The 'cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court.'

In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory, unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(1) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The notification dated February 8, 1984 issued by the State Government under Section 52(1) of the Act became effective the movement it was published in the Official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department, Jaipur under Section 52(2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution, the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench, where the cause of action wholly or in part arose.

29. Having noticed these observations the Learned Single Judge still proceeds to hold that part of cause of action of the petitioner has arisen within the territory of this Court.

30. With due respect we are unable to agree with the conclusion reached by the Learned Single Judge. The issue has been conclusively decided by this Court and the Supreme Court on numerous occasions. In our opinion, no part of the cause of action has arisen within the territorial jurisdiction of this Court which would have enabled this Court to entertain the writ petition. For this view we find support from various judgments of the Supreme Court. In the case of Oil & Natural Gas Commission v. Utpal Kumar Basu and Ors. : (1994) 4 SCC 711, Supreme Court was considering the following facts:

2. The Oil and Natural Gas Commission (ONGC), a Government of India Undertaking, has a Gas Processing Plant at Hazira in the State of Gujarat. Engineers India Limited (EIL) acting as consultants for ONGC issued an advertisement dated 27-6-1991 in the leading newspapers of the country including those in circulation in West Bengal calling for tenders for setting up of a Kerosene Recovery Processing Unit at the Hazira Complex in Gujarat. According to the said advertisement the tenders containing offers were to be communicated to EIL at New Delhi. NICCO, having its registered office in Calcutta, read and became aware of the tender notice printed in the Times of India circulated within the jurisdiction of the Calcutta High Court. The tenders were to be scrutinised by a Tender Committee and the final decision was to be taken by a Steering Committee at New Delhi presided over by the Chairman of ONGC. NICCO, along with others, submitted their offer or bid in response to the tender notice. All the bids were scrutinised by EIL at New Delhi. NICCO's bid was rejected on the ground that it did not fulfil the requisite experience criteria stipulated in the tender. The recommendations made by the EIL were considered by the Tender Committee. The Tender Committee, however, expressed the view that NICCO satisfied the experience criteria and they too should be called for the clarificatory meeting proposed to be held by EIL at New Delhi. The said meeting was held by the EIL with various bidders including NICCO some time in July-August 1992. After the said meeting EIL once again reiterated its earlier view that NICCO lacked the experience criteria. The Tender Committee re-examined the view of EIL and agreed with the same some time in October 1992. In view of the said development NICCO was not recommended for shortlisting by the Tender Committee. NICCO represented and their representations were considered by the EIL as well as the Tender Committee but they saw no reason to depart from their earlier view. The final decision was taken by the Steering Committee on 27-1-1993 at New Delhi, pursuant whereto it was decided to award the contract to M/s CIMMCO Ltd. Thereupon NICCO filed the aforesaid writ petition in the High Court of Calcutta. In the said writ petition CIMMCO was not made a party. On the application of CIMMCO this Court directed that it be joined in the appeal as a co-respondent. NICCO prayed that ONGC be restrained from awarding the contract to any other party and if awarded to cancel the same. The High Court by its impugned order dated 17-12-1993 directed as under:

There will be an order directing the respondents to consider the offer of the petitioner along with the others and in the event the petitioner's offer is otherwise found to be valid and lowest and in the event petitioner otherwise complies with the formalities, petitioner's offer should be accepted by the respondent authorities.

The writ petition is accordingly disposed of.

All the parties to the writ petition were directed to act in accordance with the signed copy of the aforesaid operative part of the order. A detailed judgment giving reasons for the aforesaid operative part of the order was later rendered on 4-2-1994...

4. At the hearing of this appeal we indicated to counsel that we would like to confine ourselves to the preliminary objection of ONGC that the High Court of Calcutta had no jurisdiction to entertain, hear and dispose of the writ petition in the manner it did as the averments in the writ petition, even if assumed to be correct, did not disclose that even a part of the cause of action for institution of the said writ petition had arisen within the jurisdiction of the Calcutta High Court. The writ petitioners averred in paragraph 43 of the writ petition that a part of the cause of action had arisen within the jurisdiction of the said High Court as pleaded in paragraphs 5, 7, 18, 22 and 26 of the writ petition. They further averred in the said paragraph that they were likely to suffer a loss at its registered office within the jurisdiction of the Calcutta High Court if the contract was not awarded to them. The averments in paragraphs 5, 7, 18, 22 and 26 in a nutshell are as under:

Para 5. NICCO came to know of the tender from the publication in the Times of India 'issued and obtained' by NICCO within the said jurisdiction;

Para 7. NICCO issued/submitted its tender on 19-8-1991 from its registered office within the jurisdiction of the Calcutta High Court which was received by EIL at New Delhi;

Para 18. NICCO submitted its revised price bid by letter dated 3-12-1992 issued from its registered office within the aforesaid jurisdiction;

Para 22. By communication dated 4-12-1992 issued from its registered office, NICCO made demands for justice to various authorities; and

Para 26. By letters addressed to different agencies including the Steering Committee of ONGC in January/February 1993 from its registered office, NICCO made demands for justice.

These are the averments in the body of the writ petition on the basis whereof NICCO contended that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court. It may also be mentioned that in the course of submissions before this Court counsel for NICCO referred to a fax message dated 15-1-1993 sent in answer to NICCO's fax message dated 11-1-1993 on the basis of which he contended that a part of the cause of action arose within the jurisdiction of the Calcutta High Court where the message was received. Although in the paragraphs disclosing the cause of action for the institution of the writ petition reference is not made to this fax message, we propose to deal with it to avoid technicalities. The question which, therefore, arises for consideration is whether the aforesaid averments made in the body of the writ petition taken individually or collectively, assuming them to be true, constitute a cause of action for the maintenance of the writ petition in the High Court of Calcutta?

31. Upon consideration of the aforesaid fact the Supreme Court considered the earlier judgments of the Supreme Court with regard to cause of action and the extent of territorial jurisdiction which may vest in a particular High Court. It observed as follows:

11. Strong reliance was placed on the decision of this Court in the State of Rajasthan case (1985) 3 SCC 271 by the learned Counsel for ONGC. The facts of that case reveal that the respondent-company having its registered office at Calcutta owned a large chunk of land on the outskirts of Jaipur. The Special Officer, Town Planning Department, Jaipur, at the instance of the Improvement Trust, Jaipur issued a notice intimating that the State Government proposed to acquire a large part of the said parcel of land for a public purpose, namely, implementation of a development scheme. The said notice was duly served on the respondents at their Calcutta office. The respondents thereafter participated in the inquiry and contended that they proposed to use the land for constructing a three star hotel. The Special Officer, however, felt that the alleged need of the respondents was just a pretence and the land was not needed bona fide by them, but the real object was to get the land released from acquisition. Consequently, the requisite final notification for the acquisition of the land was issued. Thereafter an attempt was made to seek exemption in regard to the notified land under Section 20 of the Urban Lands (Ceiling and Regulation) Act, 1976, but in vain. Having failed to get the land released from acquisition, the respondents filed a writ petition under Article 226 of the Constitution in the High Court of Calcutta challenging the acquisition wherein rule nisi was issued and an ad interim ex parte prohibitory order was granted restraining taking of possession of the acquired land, etc. The question which arose for consideration in the backdrop of the said facts was whether the High Court of Calcutta had jurisdiction to entertain the petition and grant ex parte ad interim relief. This Court observed that upon the said facts, the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court and therefore the learned Judge had no jurisdiction to issue rule nisi or to grant the ad interim ex parte prohibitory order. After extracting the definition of the expression 'cause of action' from Mulla's Code of Civil Procedure, this Court observed as under: (SCC p. 223, para 8)

The mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench.12. Pointing out that after the issuance of the notification by the State Government under Section 52(1) of the Act, the notified land became vested in the State Government free from all encumbrances and hence it was not necessary for the respondents to plead the service of notice under Section 52(2) for the grant of an appropriate direction or order under Article 226 for quashing the notification acquiring the land. This Court, therefore, held that no part of the cause of action arose within the jurisdiction of the Calcutta High Court. This Court deeply regretted and deprecated the practice prevalent in the High Court of exercising jurisdiction and passing interlocutory orders in matters where it lacked territorial jurisdiction. Notwithstanding the strong observations made by this Court in the aforesaid decision and in the earlier decisions referred to therein, we are distressed that the High Court of Calcutta persists in exercising jurisdiction even in cases where no part of the cause of action arose within its territorial jurisdiction. It is indeed a great pity that one of the premier High Courts of the country should appear to have developed a tendency to assume jurisdiction on the sole ground that the petitioner before it resides in or carries on business from a registered office in the State of West Bengal. We feel all the more pained that notwithstanding the observations of this Court made time and again, some of the learned Judges continue to betray that tendency. Only recently while disposing of appeals arising out of SLP Nos. 10065-66 of 1993, Aligarh Muslim University v. Vinay Engineering Enterprises (P) Ltd : (1994) 4 SCC 710, this Court observed:

We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction.

In that case, the contract in question was executed at Aligarh, the construction work was to be carried out at Aligarh, the contracts provided that in the event of dispute the Aligarh court alone will have jurisdiction, the arbitrator was appointed at Aligarh and was to function at Aligarh and yet merely because the respondent was a Calcutta-based firm, it instituted proceedings in the Calcutta High Court and the High Court exercised jurisdiction where it had none whatsoever. It must be remembered that the image and prestige of a court depends on how the members of that institution conduct themselves. If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation.

32. In our opinion the aforesaid observations puts the matter entirely beyond pale of controversy. In the present case the petitioner does not even have an office within the territorial jurisdiction of this Court. The application for the grant of patent dated 12.01.1999 was made from an office in Mumbai. The patent was granted in Mumbai. The post grant opposition to the patent is pending before the Assistant Controller, Mumbai. The appeal filed by the writ petitioner/respondent No. 1 before the Appellate Board is pending at Chennai. All earlier notices in the proceedings were received by the Attorney of the respondent No. 1 at Mumbai. The address of the Attorney was changed from Mumbai to Calcutta in September 2007. The appropriate patent office for respondent No. 1 in view of Rule 4 of the Patent Rules, 2003 is the Controller of Patent, Mumbai. This Rule provides as under:

4. Appropriate office.-(1) The appropriate office of the patent office shall-

(i) for all the proceedings under the Act, other than those under Sections 39, 65 and 125 be the head office of the patent office or the branch office, as the case may be, within whose territorial limits -

(a) the applicant or first mentioned applicant in case of joint applicants for a patent, normally resides or has his domicile or has a place of business or the place from where the invention actually originated; or

(b) the applicant for a patent or party in a proceeding if he has no place of business or domicile in India, the address for service in India given by such applicant or party is situated; and

(ii) for proceedings under Sections 39, 65 and 125 be the head office of the patent office.

(2) The appropriate office once decided in respect of any proceedings under the Act shall not ordinarily be changed.

33. In the present case respondent No. 1 has its office in Mumbai. It had made the application dated 12.01.1999 for registration of patent to Controller of Patent in Mumbai. The patent was granted by the Controller of Patent, Mumbai. The office of the Attorney at the relevant time was at the Mumbai. The change of address of the attorney, in view of Rule 4(2) would not necessarily amount to change of the appropriate office for any proceedings under the Patent Act, 1970, from Mumabi to Kolkata. The reliance placed by respondent No. 1 on notification dated 23rd January, 2009 issued by the Patent Office does not indicate that the patent office (Head Office), Kolkata would exercise jurisdiction over patent matters pertaining to the territory of Mumbai. The notification rather indicates addresses of all Patent Offices located at different places having their territorial jurisdiction on a zonal basis. It indicates that office of the Controller General of Patent, Designs and Trademarks is situated at Antop Hill, Mumbai. It further indicates that the Patent Office also situated at Antop Hill, Mumbai, would have territorial jurisdiction with regard to patents within the States of Gujrat, Maharashtra, Madha Pradesh, Goa and Chhatisgarh and the Union Territories of Daman and Diu and Dadra and Nagar Haveli. Similarly, the Patent Office at Chennai exercises the territorial jurisdiction over the States of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and the Union Territories of Puducherry and Lakshadweep. The Patent Office at New Delhi has jurisdiction over the States of Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttar Pradesh, Uttaranchal, Delhi and the Union Territory of Chandigarh. The Patent Office (Head Office), Kolkata exercises territorial jurisdiction over rest of India. This clearly excludes the territories specifically allotted to different Patent Offices as narrated above. We therefore, do not find much substance in the submissions of Mr. Kapoor that the existence of the Patent Office (Head Office), Kolkata, would vest the territorial jurisdiction in this Court, even with regard to the matters pertaining to the Patent Office, Mumbai.

34. We also do not find much substance in the submission of Mr. Kapoor that this Court would have territorial jurisdiction as the notice of hearing has been received by the Attorney of respondent No. 1 in Kolkata. The notice of hearing dated 5th of January, 2009 has been issued by the Appellate Board intimating the date of hearing in an appeal voluntarily filed by respondent No. 1. The appeal has been filed by respondent No. 1 seeking to protect its rights under the Patent. Under these circumstances it cannot be said, by any stretch of imagination, that the notice of hearing is an infringement or even a threatened infringement of the propriety of respondent No. 1 in the Patent. Rather, it is an invitation to the appellant (respondent No. 1 herein) to attend the hearing, so that the protection prayed for, could be considered and granted. In our opinion the assumption of the jurisdiction by the Learned Single Judge in this matter was erroneous in view of the law laid by the Supreme Court in the cases of Swaika Properties (supra), Aligarh Muslim University (supra), ONGC (supra), Kusum Ingots & Alloys Ltd (supra), Eastern Coalfields Ltd (supra), Alchemist Ltd. (supra). We need only notice the judgment in Kusum Ingots & Alloys Ltd (supra) in which some of the aforesaid judgments have been considered. The Supreme Court has clearly held as follows:

11. In Chand Kour v. Partab Singh it was held: (IA pp. 157-58)

[T]he cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.

12. This Court in Oil & Natural Gas Commission v. Utpal Kumar Basu : (1994) 4 SCC 711 held that the question as to whether the Court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial.

13. This Court in Oil and Natural Gas Commission case : (1994) 4 SCC 711 held that all necessary facts must form an integral part of the cause of action. It was observed: (SCC p. 719, para 8)

So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action.

14. In State of Rajasthan v. Swaika Properties : (1985) 3 SCC 217 this Court opined that mere service of a notice would not give rise to any cause of action unless service of notice was an integral part of the cause of action. The said decision has also been noticed in Oil and Natural Gas Commission. This Court held: (SCC p. 223, para 8)

The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action.

15. In Aligarh Muslim University v. Vinay Engg. Enterprises (P) Ltd. : (1994) 4 SCC 710 this Court lamented: (SCC p. 711, para 2)

2. We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction. The contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, even the contracts provided that in the event of dispute the Aligarh court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondent was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none by adopting a queer line of reasoning. We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable.

16. In Union of India v. Adani Exports Ltd. : (2002) 1 SCC 567 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.

17. Recently, in National Textile Corpn. Ltd. v. Haribox Swalram : (2004) 9 SCC 786 a Division Bench of this Court held: (SCC p.797, para 12.1)

12.1. As discussed earlier, the mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained. In view of the above finding, the writ petition is liable to be dismissed.

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.

35. In our opinion the aforesaid observations of the Supreme Court leave no manner of doubt that this Court has no jurisdiction to entertain writ petition. The legal position was reiterated by the Supreme Court in the case of Alchemist Ltd. (supra). Here the Supreme Court again considered a catena of earlier judgments. In that case the company had its registered and corporate office at Chandigarh. A proposal was made by the company for a strategic partnership with respondent No. 1, State Bank of Sikkim and respondent No. 2, the State of Sikkim, for disinvestment of the 49% of the equity capital of respondent No. 2 in the first respondent. Ultimately the offer was not accepted by the Government of Sikkim, and it was sought to be withdrawn through a communication which was received by the appellant in Chandigarh. This withdrawal was challenged by the appellant company in a writ petition before the High Court of Punjab & Haryana under Article 226 of the Constitution of India. The High Court dismissed the writ petition only on the ground that it did not have the territorial jurisdiction to entertain the writ petition as no cause of action had arisen within the territorial jurisdiction of the Court. The High Court did not enter into the merits of the matter and granted liberty to the appellant company to seek appropriate remedy before an appropriate Court. In appeal before the Supreme Court, the appellant company contended that a part of cause of action had arisen within the territorial jurisdiction of the High Court of Punjab & Haryana.

36. The appellant Company, for such submission, relied on the following facts:

8. ...

(i) the appellant Company has its registered and corporate office at Chandigarh;

(ii) the appellant Company carries on business at Chandigarh;

(iii) the offer of the appellant Company was accepted on 20-2-2004 and the acceptance was communicated to it at Chandigarh;

(iv) part-performance of the contract took place at Chandigarh inasmuch as Rs 4.50 crores had been deposited by the appellant Company in a fixed deposit at Chandigarh as per the request of the first respondent;

(v) the Chairman and Managing Director of the first respondent visited Chandigarh to ascertain the bona fides of the appellant Company;

(vi) negotiations were held between the parties in the third week of March, 2005 at Chandigarh;

(vii) letter of revocation dated 23-2-2006 was received by the appellant Company at Chandigarh. Consequences of the revocation ensued at Chandigarh by which the appellant Company is aggrieved. It was, therefore, submitted that at least a part of cause of action had certainly arisen within the territorial jurisdiction of the High Court of Punjab and Haryana and hence it had jurisdiction to entertain the petition. It was, therefore, submitted that the impugned order passed by the High Court deserves to be set aside by directing the Court to decide the writ petition on merits.

9. The respondents, on the other hand, submitted that neither of the above facts nor circumstances can be said to be a part of cause of action investing jurisdiction in the High Court of Punjab and Haryana. According to the respondents, all substantial, material and integral facts constituting a cause of action were within the territory of the State of Sikkim and, hence, the High Court of Punjab and Haryana was fully justified in holding that it had no territorial jurisdiction to entertain, deal with and decide the lis between the parties.

10. The respondents, in this connection, relied upon the following facts:

(i) registered and corporate office of the first respondent Bank is at Gangtok i.e. Sikkim;

(ii) secretariat of the second respondent State is situated at Gangtok i.e. Sikkim;

(iii) offers were called for from various parties at Gangtok;

(iv) all offers were scrutinised and a decision to accept offer of the appellant Company was taken by the first respondent Bank at Gangtok;

(v) the State Government's decision not to approve the proposal of the appellant Bank was taken at Gangtok;

(vi) the meeting of the Board of Directors of the first respondent Bank was convened at Gangtok and a resolution was passed to withdraw the letter dated 20-2-2004 at Gangtok;

(vii) a communication was dispatched by the first respondent Bank to the appellant Company on 23-2-2004 from Gangtok.

11. The respondents, therefore, submitted that the High Court was wholly right in dismissing the petition on the ground of want of territorial jurisdiction and the order needs no interference by this Court.' The Supreme Court analysed the various earlier judgments and observed as follows:

21. The classic definition of the expression 'cause of action' is found in Cooke v. Gill (1873) 8 CP 107 wherein Lord Brett observed:

'Cause of action' means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.'..

27. In State of Rajasthan v. Swaika Properties : (1985) 3 SCC 217 the Company whose registered office was at Calcutta filed a petition in the High Court of Calcutta challenging the notice issued by the Special Town Planning Officer, Jaipur for acquisition of immovable property situated in Jaipur. Observing that the entire cause of action arose within the territorial jurisdiction of the High Court of Rajasthan at Jaipur Bench, the Supreme Court held that the High Court of Calcutta had no territorial jurisdiction to entertain the writ petition.

28. This Court held that mere service of notice on the petitioner at Calcutta under the Rajasthan Urban Improvement Act, 1959 could not give rise to a cause of action unless such notice was 'an integral part of the cause of action'...

36. In National Textile Corpn. Ltd. v. Haribox Swalram : (2004) 9 SCC 786 referring to earlier cases, this Court stated that: (SCC p. 797, para 12.1)

12.1 ...the mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained.

37. From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a 'part of cause of action', nothing less than that.

38. In the present case, the facts which have been pleaded by the appellant Company, in our judgment, cannot be said to be essential, integral or material facts so as to constitute a part of 'cause of action' within the meaning of Article 226(1) of the Constitution. The High Court, in our opinion, therefore, was not wrong in dismissing the petition.

37. The Supreme Court in the case of Eastern Coalfields Ltd (supra) again reviewed the entire legal position with regard to territorial jurisdiction and cause of action for the purposes of Article 226(2) of the Constitution of India and observed as follows:

6. The jurisdiction to issue a writ of or in the nature of mandamus is conferred upon the High Court under Article 226 of the Constitution of India. Article 226(2), however, provides that if cause of action had arisen in more than one court, any of the courts where part of cause of action arises will have jurisdiction to entertain the writ petition.

7. 'Cause of action', for the purpose of Article 226(2) of the Constitution of India, for all intent and purport, must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. It means a bundle of facts which are required to be proved. The entire bundle of facts pleaded, however, need not constitute a cause of action as what is necessary to be proved is material facts whereupon a writ petition can be allowed. 8. The question to some extent was considered by a three-Judge Bench of this Court in Kusum Ingots & Alloys Ltd. v. Union of India (2004) 6 SCC 254 stating: (SCC p. 261, para 18)

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.

....

13. In view of the decision of the Division Bench of the Calcutta High Court that the entire cause of action arose in Mugma area within the State of Jharkhand, we are of the opinion that only because the head office of the appellant Company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court, particularly when the head office had nothing to do with the order of punishment passed against the respondent.'

38. In view of the aforesaid settled law, with due respect, we express our inability to concur with the concussions recorded by the Learned Single Judge.

39. Even otherwise, in our opinion, the writ petition deserved to be dismissed on the ground that the respondent No. 1 has already availed of the remedy of appeal. Even though existence of an alternative remedy is not absolute bar, but it is still a very important factor to be taken into consideration at the time when the High Court is asked to exercise its extraordinary jurisdiction under Article 226/227 of the Constitution of India. The existence of an alternative remedy may not be a ground for refusing to exercise the jurisdiction, but the High Court cannot ignore an objection founded on the existence of an alternative remedy. In case the Court finds that the alternative remedy is speedy and effective, normally the Court would decline to exercise the discretionary jurisdiction of issuing a writ under Article 226/227 of the Constitution. It is only in the cases where the remedy is found by the High Court to be illusory, inadequate or time consuming that the writ petition may be entertained, inspite of the existence of the alternative departmental remedy. In the present case, admittedly the relief claimed in the writ petition was also available to respondent No. 1 in the appeal filed before the Appellate Board at Channai.

40. In fact, in the stay application filed by respondent No. 1, the Appellate Board has already granted the order of status quo in proceeding before the Assistant Controller. The appeal filed by respondent No. 1 before the Appellate Board was pending on the date when the judgment was given by the learned Single Judge. In such circumstances, we are of the opinion that the learned Single Judge erred in exercising the discretionary jurisdiction to entertain the writ petition under Article 226 of the Constitution.

41. In view of the above, we are of the considered opinion that the order passed by the Learned Single Judge cannot be sustained either in law or in equity. The appeal is allowed. The order passed by the Learned Single Judge is set aside.

42. There will be no order as to costs.

43. I agree

44. Later : After the judgment is pronounced, Mr. Bachawat, learned Counsel for the respondents prays for stay, which is considered and declined.

45. I agree