Territorial Jurisdiction Under Article 226: Situs, Cause of Action, and a Critical Analysis of Baksish Ahmad vs UOI

Statutory Framework

Article 226 (1) of the Constitution of India confers power upon the High Court to issue Writs to any person, authority, including any government, that are situated “within those territories” in relation to which it exercises its jurisdiction. A bare perusal of clause 1 of Article 226 postulates that the said provision provides a situs-based jurisdiction i.e. the High Court shall have jurisdiction provided that the Respondent authority, against which the Writ is required to be issued, is situated within its territorial limits and it is immaterial whether cause of action has arisen within the territorial limits of the High Court. The sole condition to invoke clause 1 is situs or the seat of the authority.

Article 226(2) of the Constitution, on the other hand, is an extension of the power conferred under Article 226(1) upon the High Court, to entertain Writ Petitions if cause of action arises within its territorial limits, notwithstanding that the seat of the Government or authority or the residence of person, is not situated within its territories.

While Article 226(1) only concerns itself with the Seat of the Government or the authority, for exercising writ jurisdiction, Article 226(2) expands the power of the High Court to issue Writs notwithstanding that the Seat of the Government is not located within its jurisdiction, the only qualification being, that cause of action, wholly or in part must have arisen within its jurisdiction.

Legislative History of Article 226

It is pertinent to note that Article 226 in its original form, when it was first introduced in the Constitution, did not contain clause (2) i.e. cause of action based jurisdiction. Therefore, a party aggrieved by an order passed by the Government would have invoke Writ jurisdiction of the Delhi High Court as the seat of the Government/Union is located in Delhi notwithstanding that cause of action may have arisen outside Delhi. This caused huge inconvenience to parties residing away from New Delhi, which was also recognised and acknowledged by the Constitution Bench in Ltd. Col. Khajoor Singh v. Union of India¹ wherein the Supreme Court opined that the only solution to remedy the situation is to bring a constitutional amendment.

In view of the aforesaid observations of the Supreme Court and inconvenience faced by the litigants, the Parliament introduced 15^th Constitutional Amendment and inserted clause 1A to Article 226 of the Constitution, which was later renumbered as Clause (2) by 42^nd Constitutional Amendment, thereby introducing a cause of action based jurisdiction in the form of Article 226(2) which reads as in its present form today.

Position of Law

It is now well settled that a Writ Petition is a Public Law remedy which may be filed by any person, however, the main Respondent in the Writ Petition should be either Government, Governmental Agencies, or State instrumentalities of a State within the meaning of Article 12². It is common knowledge that the Seat of Government of India is in New Delhi and the Government as such is located in Delhi³. Mostly all the Public Sector Undertakings have their registered offices in New Delhi. Therefore, by a plain reading of Article 226(1) a party may invoke the Jurisdiction of Delhi High Court under Article 226(1) notwithstanding that the cause of action may have arisen entirely in a different State. If Article 226(1) is followed stricto sensu, then Delhi High Court would be inundated with Writ Petitions.

In Kusum Ingots and Alloys Ltd. vs Union of India⁴ the Supreme Court observed that Section 20(c) of the CPC would be applicable to Writ Proceedings for invoking territorial jurisdiction of High Court. The three-judge bench was adjudicating the issue whether the Seat of the Parliament or the Legislature of a State would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a Writ Petition under Article 226 of the Constitution. In facts of this case, the Appellant was registered under the Companies Act having its head office at Mumbai. It obtained a loan from the Bhopal Branch of the State Bank of India. The Bank issued a notice for repayment of loan from Bhopal under the SARFAESI Act, 2002. The Appellant Company filed Writ Petition in the Delhi High Court challenging the vires of the Legislation which was dismissed by the Delhi High Court. In SLP to Supreme Court, the Appellant contended that since the Constitutionality of a Parliamentary Legislation was questioned, the High Court of Delhi had the requisite jurisdiction. The Supreme Court, however disagreed and clarified that a Writ Petition questioning a Parliamentary Act shall not be maintainable in the High Court of Delhi only because the Seat of the Union of India is in Delhi. The Court emphasized on “cause of action” and observed 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

A Division Bench of Delhi High Court in the matter of Ex-Rect./GD Vinod Kumar vs Union of India⁵ held that clauses (1) and (2) of Article 226 have to be read and construed in conjunction with each other and in order to take the benefit of the enlarged jurisdiction of Article 226, it would be obligatory upon the Petitioner to show that any cause of action or part thereof had arisen within the territorial jurisdiction of the High Court.

In Easter Coalfields & Ors. vs Kalyan Banerjee⁶ the Respondent was an Employee in the Appellant Company, serving at Mugma, Jharkhand. His services were terminated by the General Manager/Disciplinary Authority, which was also situated in Mugma, Jharkhand. However, the Respondent filed Writ Petition before the Calcutta High Court, challenging its termination and contended that since the head office of the Appellant is situated in Calcutta therefore, Calcutta High Court would have jurisdiction. The Division Bench of the High Court, however disagreed and dismissed the Petition by observing that simply because a head office of the Company is within the territorial limits of the Calcutta High Court, that will not give jurisdiction to the Court unless cause of action arises within the territorial limits of the Calcutta High Court. However, in Review proceedings, the aforesaid judgment was set aside which was challenged in SLP before the Supreme Court. The Supreme Court noted that entire cause of action had arisen in Jharkhand and in view of the law laid down in Kusum Ingots (supra) only that Court will have jurisdiction within whose territorial limits the entire cause of action has arisen. The Supreme Court further reiterated that merely 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 on Calcutta High Court, particularly when the head office had nothing to do with the order of punishment passed against the Respondent.

A full Bench of the Delhi High Court comprising of five judges, in the matter of Sterling Agro Industries vs Union of India⁷, held that while entertaining Writ Petition the doctrine of forum conveniens and the nature of cause of action are required to be scrutinised upon the factual matrix of each case.

In Shrishti Udaipur Hotels and Resorts Pvt. Ltd. vs Housing and Urban Development Corporation Limited⁸, the Delhi High Court was adjudicating a Writ Petition filed by the Petitioner challenging the Loan Recall Notice issued by the Respondent. In the facts of this case, the loan agreement between the parties was executed in Jaipur; the land in question where the project was being developed by the Petitioner was situated in Udaipur; and the impugned loan recall notice was issued by the Jaipur regional branch of the Respondent. However, the Petitioner invoked the jurisdiction of Delhi High Court by inter alia contending that the Registered office of the Respondent/Corporation was in Delhi. However, the Delhi High Court held that that this cannot be a ground to canvass that the cause of action has arisen within the territorial jurisdiction of Delhi High Court. The Court further observed that a bald submission made to the effect that ordinarily a decision to recall a loan from a client is taken at the head office of the Respondent/Corporation would not be of much assistance to the Petitioner. Since the entire cause of action had arisen in Jaipur, the Court held that the Writ Petition was not maintainable before Delhi High Court. In Jayshreyesh Kaushik vs Union of India & Anr.⁹, the Delhi High Court similarly observed that since no part of cause of action had arisen within its territorial limits, merely impleading the Union of India through the Secretary, Government of India, Department of Atomic Energy, which is located in Delhi, would not by itself vest the Court with territorial jurisdiction.

In Centre for Public Interest Litigation vs Union of India & Ors¹⁰, a Division Bench of the Delhi High Court was adjudicating a Writ Petition filed by the Petitioner challenging the e-tender process for allotment of land which was situated in Gujrat. The Respondent opposed the Petition on the ground of territorial jurisdiction by contending that the E-tender process took place in Gujrat, the land for which tender has been issued is situated in Gujrat; the lease agreement was executed in Gujrat, and the decision-making authority is also situated in Gujrat, therefore no part of cause of action arose within the territorial limits of Delhi High Court. The Respondent also argued that merely because the Union of India has been arrayed as Respondent, that would not confer any right upon the Petitioner to file Petition before Delhi High Court. The Court acceded to the submissions made by the Respondents and noted that since no part of cause of action arose within the territorial limits of the Delhi High Court, therefore, Writ Petition was not maintainable.

In Dr. Rakesh Dwivedi vs Coal India Ltd.¹¹, the Petitioner argued that the Delhi High Court would have the territorial jurisdiction to entertain the Writ Petition on the following grounds-

One of the Offices of Coal India Ltd. was located in Delhi
Petitioner is posted and works for gain in Delhi
The communications with regard to his grievances were addressed to the official Respondents from Delhi.
The response to one of the representations was received by the Petitioner in Delhi.

The Delhi High Court, however, observed that none of the above factors would confer territorial jurisdiction upon the Court. The Court reiterated that even though the Corporate Office of the Respondent is located in Delhi but that by itself will not clothe Delhi High Court with jurisdiction to entertain the Petition. The Court further emphasized that the letter and spirit of Article 226(2) is that no High Court shall have territorial jurisdiction to entertain a Petition unless a cause of action arises in its territorial limits and the location of the office of the Authority or Department will not be enough to confer the jurisdiction. Since no part of cause of action arose within the territorial limits of Delhi High Court, the Court dismissed the Petition for lack of jurisdiction.

In Meghalya Oxygen Pvt. Ltd. vs Oil and Natural Gas Corporation¹² the work awarded under the Tender was to be executed at Agartala and the entire communication between the parties including the show cause notice issued to the Bidder and reply thereto by the bidder and also the banning Order were issued at Agartala by the Regional office of ONGC. However the bidder challenged the Banning order before the Delhi High Court by filing Writ Petition on inter alia ground that the registered office of the ONGC is at Delhi therefore Delhi High Court would have jurisdiction. However, the Court held that since the entire cause of action arose at Agartala, the Delhi High Court would not have jurisdiction and the parties cannot by way of an Agreement confer jurisdiction on a Court which otherwise does not have.

In Mr. Gautam Mondal vs Union of India¹³2025 the Division Bench of Delhi High Court observed that passing of order in Delhi is not enough to invoke its writ jurisdiction. In the aforesaid case, entire cause of action had arisen in West Bengal therefore, the Court declined to exercise Writ jurisdiction.

Doctrine of Forum Non Conveniens

The three judge bench of the Supreme Court in Kusum Ingots(supra) although held that even if small fraction of a cause of action arises within the jurisdiction of the Court, the Court will have jurisdiction to entertain the Writ Petition, however, further observed that the Court may still decline to entertain the Writ Petition by invoking doctrine of forum conveniens. The full bench of Delhi High Court in Sterling Agro (supra) succinctly explained the aforesaid doctrine as follows-

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

32 The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens.” (emphasis supplied)

In Bharati Nidhi Ltd. vs Securities and Exchange Board of India & Ors.¹³2023 SCC OnLine Del 8586 the Delhi High Court held that even if a small part of cause of action is established and the same is found to be non-integral or non-material to the lis, the court may invoke the doctrine of forum non-conveniens and decline to exercise its writ jurisdiction. This was further affirmed by the Division Bench of Delhi High Court.¹⁴

Therefore, from a conspectus of the aforesaid authorities, the following position of law emerges-

Mere fact that the seat of the Government is located within the territorial limits of the High Court, alone, will not clothe the High Court with the jurisdiction to entertain the Writ.
As observed by the Full Bench of Delhi High Court in Sterling Agro, while entertaining Writ Petition, the doctrine of forum conveniens and the nature of cause of action are required to be scrutinised.
If seat of Government is located within the territorial limits of High Court, but no cause of action has arisen within the territorial limits of the High Court, that High Court shall not have the jurisdiction to entertain the Writ Petition.
Entire bundle of facts pleaded need not constitute cause of action. What is necessary to be proved is the material facts, also known as integral facts. Even if small cause of action accrues within the jurisdiction of the High Court, the Court will have jurisdiction to entertain the matter¹⁵.
Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned¹⁶.
When an order is passed by a Court, Tribunal, or an executive authority, a part of cause of action arises there. An order passed by an appellate authority would also constitute a part of cause of action and Writ would be maintainable in the High Court within whose jurisdiction the authority is situate. However, the Court still retains power to refuse from exercising its jurisdiction on the principle of forum conveniens¹⁷. In Gautam Mondal (supra) the division bench of Delhi High Court acknowledged the fact the since the impugned order was passed within the territorial jurisdiction of the High Court, the Court does possess the jurisdiction to entertain the matter, however, since the integral part of cause of action had arisen at West Bengal, the Court declined to exercise its writ jurisdiction on the principle of forum conveniens.
The question as to whether the Court has 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 immaterial¹⁸.
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 so as to confer Calcutta High Court with jurisdiction to entertain the Petition¹⁹.
All the necessary facts must form an “integral part” of cause of action. The fact which is neither material nor essential nor integral part of cause of action would not constitute a part of cause of action within the meaning of clause (2) of Article 226 of the Constitution²⁰.

Article 226(1) and 226(2) are not independent pathways to invoke Writ jurisdiction of High Court and both must be read conjunctively

A bare perusal of Article 226(1) and 226(2) of the Constitution provide two independent pathways to invoke Writ jurisdiction of the High court viz. –

Article 226(1)– Seat based jurisdiction viz. High Court will have jurisdiction if the Respondent authority is located within its territorial limits.
Article 226(2)– Cause of action based jurisdiction viz. if cause of action, wholly or in part, has arisen within the territorial limits of the High Court, then the High Court shall have jurisdiction to entertain the Writ Petition, notwithstanding that the Seat of the Respondent authority may be located outside its territorial limits.

Given the aforesaid statutory framework, a question arises whether 226(1) jurisdiction can be invoked independent of Article 226(2), i.e. if no cause of action has arisen within territorial limits of High Court, but the Respondent authority is located within the territorial limits of the High Court, can the High Court exercise its jurisdiction under Article 226(1)? notwithstanding that no cause of action has arisen within its territorial limits?

The aforesaid line of authorities categorically lay down the law that mere seat of the government is not the determining factor for exercising the Writ jurisdiction and if no cause of action has arisen within the territorial limits of the High Court, the Court shall not have jurisdiction to entertain the Writ Petition, notwithstanding that the Respondent authority may be located within its territorial limits. This was categorically observed by the Delhi High Court in Rakesh Dwivedi(supra) after a conspectus of authorities on the issue, as follows-

” 29. The uniform and unambiguous view of the Supreme Court with respect to the territorial jurisdiction of the High Court is that if the seat of the Government or the concerned Department is located within the territorial jurisdiction of the Court, but no cause of action or even a fraction has arisen within the jurisdiction of that Court, it shall have no jurisdiction to entertain the writ petition..” (emphasis supplied)

In Oil and Natural Gas Commission vs Utpal Kumar Basu and Ors.²¹ ONGC invited tenders for setting up of a Kerosene Recovery Processing Unit. As per the advertisement, the bids were required to be submitted at Delhi and scrutinised by the Tender Committee at Delhi. The Respondent, a Calcutta based company, submitted its bid in Delhi which was rejected by the Tender Committee at Delhi. However, the Respondent filed Writ in Calcutta High Court which entertained the same and directed ONGC to consider the Respondent’s bid. ONGC filed SLP challenging the aforesaid order of Calcutta High Court on inter alia grounds that no cause of action arose in Calcutta, therefore, Calcutta High Court did not have the jurisdiction. The three judge bench of Supreme Court held that since entire cause of action has arisen in Delhi, Calcutta High Court did not have jurisdiction to entertain the Writ and deprecated the practise in the High Courts of exercising jurisdiction in matters where it lacked territorial jurisdiction.

The decision in Utpal Kumar (supra) is although not a situs based decision, i.e. on application of Article 226(1) as the Respondent therein entirely anchored its case in cause of action i.e. Article 226(2) by inter alia arguing that it read the advertisement at Calcutta and submitted bid from Calcutta therefore Calcutta High Court had jurisdiction, however, the Supreme Court in the aforesaid case has expounded upon the relationship between Article 226(1) and 226(2) and after a detailed consideration, the three judge bench arrived at a categoric finding that in order to invoke Article 226(1) i.e. situs based jurisdiction, it is imperative that cause of action, wholly or in part, must have arisen within its territorial limits. The court observed as follows-

“10…But as stated earlier, on a plain reading of clause (2) of Article 226, it is clear that the power conferred by clause (1) can be exercised by the High Court provided the cause of action, wholly or in part, had arisen within its territorial limits.” (emphasis supplied)

Therefore, it is manifestly clear from the aforesaid observation of the Supreme Court that clause 1 and 2 are not independent pathways for invoking writ jurisdiction of the High Court and mere seat of the authority within its territorial limits does not clothe a High Court with jurisdiction under Article 226(1), that jurisdiction is qualified by the requirement that a part of the cause of action arise within its territory. In fact, the aforesaid is all the more fortified by the ratio laid down by the Supreme Court in Kusum Ingots (supra) wherein the issue viz. whether the seat of the Parliament or the legislature of a State would be a relevant factor for determining the territorial jurisdiction of the High Court, was squarely under consideration by the three judge bench. The Supreme Court in the aforesaid case was considering a larger issue which had the potential of opening floodgates to litigation in Delhi High Court. If Article 226(1) is given an independent enforcement then a Petitioner can merely state that since Union is in Delhi, therefore, Writ would be maintainable in Delhi High Court as Union is located within the territorial limits of Delhi High Court as per Article 226(1). However, the Supreme Court was alive to the aforesaid abuse of Writ jurisdiction and categorically observed as follows-

“Situs of office of Respondents- whether relevant?

23.A writ petition, however, questioning the constitutionality of a Parliamentary Act shall not be maintainable in the High Court of Delhi only because the seat of the Union of India is in Delhi.” (emphasis supplied)

The aforesaid observation of the Supreme Court is directly falling from para 10 of Utpal Kumar (supra) wherein the three judge bench of the Supreme Court qualified the invocation of Article 226(1) by a requirement that cause of action whether wholly or in part must arise within the territorial limits of the High Court. The three judge bench in Kusum Ingots (supra) extended that application to the facts before it and reiterated that seat of Respondent/Union in Delhi alone shall not clothe Delhi High Court with the jurisdiction to entertain the matter. Emphasis must be laid on the word “only” in para 23 of the judgement. Even the Division Bench of Delhi High Court in Vinod Kumar (supra) categorically observed that clause 1 and 2 of Article 226 have to be read and construed in conjunction with each other. Therefore, in order to invoke Article 226(1) it is imperative that cause of action, wholly or in part, must also arise within the territorial limits of the High Court. Independent invocation of Article 226(1) absent a cause of action, is not permissible in view of the aforesaid line of authorities.

Critical Analysis of Judgment of Supreme Court in Baksish Ahmad vs Union of India & Anr.

The line of authorities as discussed herein above lay down that a seat based jurisdiction, anchored in Article 226(1) of the Constitution cannot be independently invoked in absence of a cause of action having arisen within the territorial limits of the High Court. However, in a recent decision in Baksish Ahmad vs Union of India & Anr.²² the Supreme Court has inter alia held that Article 226(1) of the Constitution can be independently invoked notwithstanding that no cause of action may have arisen within the territorial limits of the High Court. The aforesaid judgment appears to have disturbed the ratio laid down in the aforesaid line of authorities, emanating from three judge bench decisions, in contrast to Baksish Ahamd (supra) which is a judgment rendered by a two judge bench.

Facts in Baksish Ahmad (supra)

The Appellant was enrolled with the Border Security Force [“BSF”] and posted at Malda West Bengal. The Staff Headquarters, BSF, at Malda ordered a staff court of inquiry against the Appellant owing to his immoral and questionable conduct. Pursuant to an investigation a show cause notice was served to the Appellant at Malda, West Bengal. Since the Appellant failed to reply to the show cause notice, the BSF, at Malda, West Bengal dismissed the Appellant from service. The aforesaid order was also served to the Appellant at Malda, West Bengal. The Appellant preferred a statutory Appeal under Rule 28A of BSF Rules which was considered by the Inspector General, Frontier Headquarters, BSF, Jammu and rejected. The Appellant filed a Writ Petition in Delhi High Court for challenging his dismissal and justified the territorial jurisdiction on the ground that offices of the Director General, BSF and Ministry of Home Affairs are located in Delhi. However, the Delhi High Court dismissed the Petition by invoking doctrine of forum conveniens as no part of cause of action arose within its jurisdiction. The court observed that cause of action arose at Malda, West Bengal or Jammu as the Petitioner’s dismissal order and subsequent statutory appeal were decided at the aforesaid places, respectively.

Decision of Supreme Court in Baksish Ahmad (supra)

The Appellant anchored its challenge, in the Supreme Court, in Article 226(1) of the Constitution, that the Delhi High Court had jurisdiction to entertain the Petition as per Article 226(1) of the Constitution as the Respondent authorities were located in Delhi and relied upon a decision of Supreme Court in the matter of Abrar Ali vs CISF²³ wherein the Supreme Court had observed that Writ Petition would be maintainable in Delhi High Court as per Article 226(1) of the Constitution notwithstanding that no cause of action may have arisen within its territorial limits in terms of Article 226(2). In the aforesaid case, while the Delhi High Court had dismissed the Writ Petition on the ground that no cause of action had arisen within its territorial limits, however, the Supreme Court reversed that finding by invoking clause 1 of Article 226 on the ground that since Respondent headquarter is situated in Delhi, therefore, Delhi High Court would have jurisdiction in terms of Article 226(1). Therefore, in Baksish Ahmad (supra) the Supreme Court drew force and sustenance from the decision in Abara Ali (supra). What also weighed with Supreme Court was that in terms of sub rule 4 of Rule 22 of BSF rules, every order of dismissal/removal under sub-rule 3 has to be reported to Director General, situated in Delhi. Taking the aforesaid factors into consideration the Supreme Court held as follows-

“27. Be that as it may, to reconcile the conflict, if any, we hold that in case any member of the CAPF, and that includes the BSF, is aggrieved by any administrative order of termination of his service issued by the competent authority, notwithstanding that the cause of action arose outside, i.e., the said order was issued from a place beyond the territorial limits of the Delhi High Court or that the events which triggered such an order occurred outside its limits, etc., still the Delhi High Court would have territorial jurisdiction in light of situs of office of the Union of India and the Director General, BSF/the officer in whom is vested supervision and command of the other CAPF, as per clause (1) of Article 226.” (emphasis supplied)

The Supreme Court further went on to observe that doctrine of forum non conveniens rarely apply when Article 226(1) of the Constitution is invoked i.e. situs based territorial jurisdiction. In the aforesaid context, the Supreme Court further held that the observation of the three judge bench in Kusum Ingots (supra) regarding the application of the doctrine of forum non conveniens to the Writ jurisdiction, was made in the context of cause of action based jurisdiction i.e. Article 226(2) and not in relation to situs of the office of the Respondent i.e. Article 226(1).

Abrar Ali (supra) Appears to be Per Incuriam and Supreme Court misdirected itself by Relying Upon It.

The ratio laid down by the Supreme Court in Baksish Ahmad (supra) is entirely anchored in Abrar Ali (supra). It is pertinent to note that Abrar Ali (supra) is a mere four paragraph order devoid of any jurisprudential analysis of the issue at hand. A two judge bench of Supreme Court in Abrar Ali (supra) green lit the filing of a Writ Petition under Article 226(1) notwithstanding the cause of action may have not arisen within the territorial limits of the High Court. Therefore, only qualification being, the seat of the Respondent authority must be situated within its territorial limits. In effect, the Supreme Court provided two independent pathways of invoking Writ Jurisdiction i.e. one by invoking situs based territorial jurisdiction of the High Court under Article 226 (1) and the other by invoking cause of action based jurisdiction conferred under Article 226(2).

What the Supreme Court completely overlooked in Abrar Ali (supra) is a binding three judge bench decision of the Supreme Court in Utpal Kumar (supra) wherein the Supreme Court at para 10 as reproduced hereinabove, very categorically qualified the invocation of Article 226(1) i.e. situs based jurisdiction, by the requirement that cause of action, wholly or partly must also arise within the territorial limits of the High Court. Absent a cause of action, seat of Respondent authority within the territorial limits of the High Court will not clothe the High Court with jurisdiction to entertain the Writ Petition. This principle was further followed by another three judge bench of the Supreme Court in Kusum Ingots (supra) wherein a question was directly in issue whether the seat of the Union at Delhi, alone, will clothe the High Court with jurisdiction to entertain the Writ Petition. The Supreme Court answered in negative at para 23 of the judgement as reproduced herein above. The ratio laid down in the aforesaid two cases has been subsequently followed by the Delhi High Court in the cases as discussed herein above. Furthermore, the Supreme Court in Abrar Ali (supra) also failed to consider the ratio laid down in Kalyan Banerjee (supra).

Therefore, the decision in Abrar Ali (supra) is in ignorance of at least three binding judgements of the Supreme Court, two of which have been rendered by a three judge bench, wherein the Supreme Court has settled the issue at hand before the Supreme Court in Abrar Ali (supra) that absent a cause of action, the situs based jurisdiction conferred by Article 226(1) cannot be invoked. The decision in Abrar Ali (supra), since it holds otherwise, and green lights the independent enforcement of Article 226(1) notwithstanding that cause of action arises outside the territorial limits, and ignores the three binding precedents of the Supreme Court on the issue at hand, has rendered itself per-incuriam.

In Home Care Retail Carts Pvt. Ltd. vs Haresh N. Sanghavi²⁴ the Supreme Court held that a decision which does not proceed on consideration of an issue cannot be deemed to be law declared to have a binding effect as per Article 141 of the Constitution. In S. Shanmugavel Nadar vs State Of Tamil Nadu And Anr²⁵ the Supreme Court further observed that a court is not bound by an earlier decision if it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. A decision which is not express and is not founded on reasons, nor which proceeds on consideration of the issues, cannot be deemed to be a law declared, to have a binding effect as is contemplated by Article 141. In Secunderabad Club ETC. vs CIT-V ETC²⁶ the Supreme Court held that an order without reasoning or analysis does not carry precedential value so as to be binding on Supreme Court in a subsequent case. It is pertinent to reiterate that Abrar Ali (supra) is a mere four paragraph order of Supreme Court devoid of any exposition upon the law on the issue at hand. Therefore, the law laid down in Abrar Ali (supra) appears to be per incuriam and the Supreme Court misdirected itself by relying upon it.

It is pertinent to mention that the Supreme Court in Baksish Ahmad (supra) at para 24 of the judgment, itself identifies this glaring defect in Abrar Ali (supra) that it failed to consider Kalyan Banerjee (supra) and host of other decision on the point of territorial jurisdiction discussed in Kalyan Banerjee (supra), rendering the ratio laid down in Abrar Ali (supra) per incuriam, however, instead of addressing this aspect and declaring Abrar Ali (supra) a defective authority, the Supreme Court stated that “Prudence dictates silence on this aspect.”.

An Unreasoned Order Preferred to a Reasoned Judgment on materially identical facts

The Supreme Court in the Baksish Ahmad (supra) addressed two decisions viz. Abrar Ali (supra) and Kalyan Banerjee (supra) having materially identical facts with contrasting conclusions arrived at by the Supreme Court. Abrar Ali (supra) as mentioned hereinabove, is a mere four para order of Supreme Court devoid of any reasoning or citation/reference to any judgment dealing with the issue at hand. While Kalyna Banerjee (supra) has extensively dealt with the issue at hand, it is a detailed exposition of law and also takes into consideration the three judge bench decisions in Utpal Kumar (supra) and Kusum Ingots (supra). Yet the Supreme Court chose to build a foundation on Abrar Ali (supra) and categorically stated at para 21 that we agree with Abrar Ali, however, the Supreme Court completely failed to address the tension between the two decisions despite noting the glaring defect in Abrar Ali (supra) of having failed to take into consideration Kalyan Banerjee (supra) and instead stated that “Prudence dictates silence on this aspect”.

Supreme Court in Kalyan Banerjee (supra) had already rejected the independent pathway reading of Article 226(1) which the Supreme Court revived in Baksish Ahmad (supra) in similar facts

It is pertinent to mention that the facts that the Supreme Court was dealing with in Kalyan Banerjee (supra) and the Baksish Ahmad (supra) were also materially identical, which can be tabulated hereinbelow-

	Eastern Coalfields Limited vs Kalyan Banerjee	Baksish Ahmad vs UOI
Nature	Service Termination Writ	Service Termination Writ
Cause of action arose	Entirely at Jharkhand (Mugma)	West Bengal and Jammu
226(1) invocation	Head office in West Bengal	Headquarter of DG/UOI in Delhi
Writ Petition field	Calcutta High Court	Delhi High Court

In both the aforesaid decisions the Writ Petitions were filed by invoking the situs based jurisdiction conferred under clause 1 of the Article 226 on the ground that the head office or the Headquarter of DG is located within the territorial limits of the High Court notwithstanding that the cause of action arose entirely at a different place. It is interesting to reproduce herein the impugned order passed by the Calcutta High Court in Kalyan Banerjee (supra) which was under challenge before Supreme Court, as reproduced at para 4 of the judgement in Kalyan Banerjee (supra)-

“As provided in Article 226(1) of the Constitution of India, even if the cause of action arises outside the territorial limit of the High Court, such High Court can entertain a writ application if the person sought to be bound by the order of the Court is stationed within the territorial limit. Article 226(2) is an additional provision subsequently incorporated by way of amendment о enabling a High Court to issue writ even in cases where the respondents are functioning beyond its territorial limit if the cause of action has arisen Once it is held that Article 226(1) is clearly applicable, there is no necessity of invoking Article 226(2) of the Constitution of India. From the order sought to be reviewed, we find that the Division Bench confined its attention to the cause of action of the present writ application but totally ignored the fact that the employer, the government company, has its registered office within the district of Burdwan and consequently the question whether cause of action had really arisen within the territorial limit of this Court was immaterial.” (emphasis supplied)

As noted herein above, the Calcutta High Court in Kalyan Banerjee (supra) bifurcated the application of Article 226 by providing two independent pathways, viz. situs based- Article 226(1) and cause of action based- Article 226(2) and further held that the application of Article 226(2) i.e. cause of action is immaterial when Article 226(1) is satisfied, i.e. the Respondent authority is found to be within the territorial limits of the High Court. It is pertinent to note that this is exactly what the Supreme Court in Abrar Ali (supra) did as discussed hereinabove and exactly what the Supreme Court followed in Baksish Ahmad (supra) at para 27 of the aforesaid judgment wherein the Supreme Court categorically arrived at a finding that it is immaterial that cause of action has arisen outside the Delhi High Court, if the Respondent authority is located within its territorial limits then Delhi High Court would have jurisdiction as per Article 226 (1).

Now it is pertinent to observe how the Supreme Court has dealt with the aforesaid impugned order passed by the Calcutta High Court in Kalyan Banerjee (supra). The Supreme Court relied upon the three judge bench judgment in Kusum Ingots (supra) and emphasised that only that court will have jurisdiction within which entire cause of action has arisen and in the present case since no cause of action had arisen within the limits of Calcutta High Court, the Supreme Court held that Calcutta High Court did not have jurisdiction to entertain the Petition. The Supreme Court further held that merely because the head office was situated in West Bengal, that by itself will not confer jurisdiction upon Calcutta High Court, especially when the head office had nothing to do with the order of termination passed in the matter. Therefore, the Supreme Court in Kalyan Banerjee (supra) refused the interpretation of two tier invocation of Writ Jurisdiction by independently invoking the clauses of Article 226. The Supreme Court drew sustenance from the three judge bench in Kusum Ingots (supra) and held that situs of the office of the Respondent i.e. Article 226(1) alone, will not confer jurisdiction upon the High Court in absence of a cause of action. Both the clauses of Article 226, as discussed herein above, are to be read conjunctively.

However, the Supreme Court, in Baksish Ahmad (supra) in similar facts before it, revived the Calcutta High Court reasoning in Kalyan Banerjee (supra) – that Article 226 (1) and (2) provide two different and distinct pathways to invoke the Writ Jurisdiction of the High Court, which was rejected by the Supreme Court in Appeal in the aforesaid case. The Supreme Court failed to consider the ratio laid down in Kalyan Banerjee (supra) and aligned itself with the Order in Abrar Ali (supra) which discussed herein above is per incuriam.

Forum Non Conveniens and 226(1): The Conflict with Sterling Agro

(a) The Sterling Agro Conflict

In Baksish Ahamd (supra) the Delhi High Court non-suited the Petitioner by invoking doctrine of Forum Non Conveniens, stating that since the cause of action has arisen in West Bengal or Jammu, merely because the Ministry of Home affairs or Director General are situated in Delhi, that alone would not confer jurisdiction upon the High Court to entertain the Petition. The Supreme Court, however, at para 37, criticised Delhi High Court for invoking Forum Non Conveniens, stating that when invocation of Writ Jurisdiction is traceable to clause 1 of Article 226, doctrine of Forum Non Conveniens rarely apply. It is pertinent to mention that when Delhi High Court invoked Forum Non Conveniens to non-suit the Petitioner it was being only guided by the settled ratio passed by the full bench comprising five judges in Sterling agro (supra). The Full Bench of Delhi High Court in Sterling Agro (supra) categorically observed that while entertaining a Writ Petition, the doctrine of forum conveniens and the nature of cause of action are required to be scrutinised. The Delhi High Court did not bifurcate clause (1) and (2) of Article 226 and held that the aforesaid principle applies to Writ Jurisdiction under Article 226 as well as Article 227. However, in Baksish Ahmad (supra), the Supreme Court, in its misdirected approach founded on a per incuriam decision in Abara Ali (supra) first bifurcated the application of Article 226 and held that principle of forum conveniens rarely apply to Article 226(1). Not to mention Supreme Court in Baksish Ahmand (supra) did not consider Sterling Agro (supra).

(b) Misreading of Kusum Ingots (supra)

The Supreme Court in Baksish Ahmad (supra) although referred to the three judge bench decision of Supreme Court in Kusum Ingots (supra) but only for a collateral purpose viz. at para 31 the Supreme Court observed that the observation made by the three judge bench in Kusum Ingots (supra) regarding Forum Non conveniens was only made in the context of Article 226(2) i.e. cause of action jurisdiction and not in relation to situs of office of the Respondent i.e. Article 226(1). It is pertinent to mention that in Kusum Ingots (supra) the Supreme Court addressed a situs based argument anchored in Article 226(1). The cause of action in the said case had arisen at Bhopal however the Petitioner filed Writ in Delhi on the premise that vires of legislation is being challenged and since seat of parliament/union is in Delhi therefore, Writ is maintainable in Delhi. However, the Supreme Court categorically held that situs of office of Respondent is not relevant and writ in Delhi will not be maintainable only because seat of Union is in Delhi. Therefore, the Supreme Court in Kusum Ingots (supra) was addressing exactly the argument which the Petitioner in Baksish Ahamd (supra) was making, however, the Supreme Court in Baksish Ahmad (supra) recharacterized Kusum Ingots (supra) as a cause of action based decision than a decision addressing an argument anchored in Article 226(1). It is settled law that judgments should be read holistically and not divorced from context²⁷.

The Necessary-Party Fallacy: Ranjeet Mal Misapplied

The Supreme Court in Baksish Ahmad (supra) in order to supplement its reasoning that Delhi High Court had jurisdiction under Article 226 (1) by founding it on the ratio laid down in Abrar Ali (supra), relied upon a three judge bench decision of Supreme Court in Ranjeet Mal vs General Manager, Northern Railway, Baroda House , New Delhi. It is pertinent note that Ranjeet Mal (supra) is not an authority on the proposition that Writ would be maintainable at a High Court notwithstanding that no cause of action had arisen within the territorial limits of the High Court. Supreme Court in Ranjeet Mal (supra) granted leave to appeal only confined to the question whether Union of India is a necessary party in a service Writ Petition. The Supreme Court answered in the affirmative that Appellant was a servant of the Union, the order of removal is removal from the service of the Union, any order of a court would have to be enforced against the Union, any order setting aside the removal would fasten liability on the Union of India and not on any servant of the Union, therefore the Union of India is a necessary party. However, the decision in Ranjeet Mal (supra) does not answer the question whether Writ would be maintainable in Delhi merely because Union is in Delhi notwithstanding that no cause of action arose in Delhi. That question was squarely answered in the negative by the three judge bench in Kusum Ingots (supra) which the Supreme Court in Baksish Ahmad ignored, despite referring to Kusum Ingots (supra) although for the collateral purpose of addressing the forum non conveniens issue. Furthermore, it is also pertinent to note that the Supreme Court in order to stultify the ratio laid down in Kalayan Banerjee (supra) referred to a three judge bench judgment in the matter of Dinesh Chandra Gahtori v. Chief of Army Staff²⁸ stating that Supreme Court in Kalyana Banerjee (supra) did not take into consideration the aforesaid decision wherein the Supreme Court had observed that the Chief of Army staff can be sued anywhere in the country. However, at para 26, the Supreme Court itself conceded that the aforesaid authority is of no relevance post AFT Act.

In Union of India and Anr. vs Arulmozhi Inirarasu and Others²⁹ the Supreme Court cautioned that in the matter of applying precedents the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in the fact situation on which reliance is placed. Therefore, the reliance placed on Ranjeet Mal (supra), a case confined to the issue whether Union is a necessary party in a service Writ Petition, for adjudicating a case concerning an issue whether a Writ can be filed in Delhi merely because Union is in Delhi despite no cause of action has arisen in Delhi, is wholly misplaced.

The Necessary Party Rationale Proves Too Much

The Supreme Court in Baksish Ahmad (supra) held that since Union of India is a necessary party in order to enforce an order regarding dismissal from service and since Union is in Delhi therefore, Writ Petition would be maintainable in Delhi. However, it is pertinent to note-

Every central-government service matter (dismissal, promotion, pension, transfer), relief runs against the Union.
Every challenge to an order of a central authority, tribunal, or PSU where the Union or its instrumentality must implement the result.

So the “necessary party whose office is in Delhi” feature is satisfied in almost all central-government litigation across the country and the Supreme Court in Baksish Ahmad (supra) used situs of office of Union in Delhi as trigger for invoking Article 226(1) and justified filing of Writ in Delhi. The absurd result it leads to is that every such litigant, anywhere in India, may file in Delhi- because the Union’s seat is in Delhi and the Union is a necessary party in nearly all of these matters. The Delhi High Court becomes a universal forum for central-government litigation. At the cost of repetition, it is pertinent to mention that this is exactly what the three judge bench in Kusum Ingots (supra) was concerned with, that merely because Union in Delhi, Writ cannot be anchored in Delhi despite no cause of action having arisen within its territorial limits. The Supreme Court in Kusum Ingots (supra) introduced the “situs alone is not enough” rule precisely to prevent the floodgate – to stop every litigant in the country anchoring jurisdiction in Delhi merely because Parliament/the Union sits in Delhi. Furthermore, it is pertinent to note that the Parliament introduced the 15^th Constitutional Amendment and incorporated the cause of action jurisdiction in Article 226, for addressing the inconvenience being caused to the parties as earlier the parties were being forced to invoke Delhi High Court jurisdiction since Union was in Delhi. The entire constitutional purpose of clause (2) was to break the monopoly whereby everyone had to sue the Union in Delhi. Therefore, the conclusion reached by the Supreme Court in Baksish Ahmad (supra) that any CAPF member may sue the Union in Delhi on office-situs regardless of where the cause of action arose runs directly against the mischief the 15th Amendment was enacted to cure.

Is Baksish Ahmad (supra) Perincuriam?

The Constitution Bench of Supreme Court in M/s Bajaj Alliance General Insurance and Co. Ltd. vs Rambha Devi & Ors.³⁰ held that a decision is per incuriam if it overlooked a legal precedent which is central to the legal issue in question and might have led to a different outcome if that overlooked precedent was considered. Recently the Supreme Court in Parveen Kumar@ Parveen Chauhan vs State of Haryana & Ors.³¹ held that a decision is per incuriam when its ratio is not reconcilable with an earlier decision rendered by a Bench of equal or higher strength. The Supreme Court added a caveat that a decision is not per incuriam if it makes reference to an earlier decision and then concludes correctly or incorrectly. In Sankar Padam Thapa vs Vijay Kumar Dinseshchandra Agarwal³², the Supreme Court observed as follows-

Not as a matter of routine can a later bench of equal strength refuse to follow an earlier decision of a bench of equal strength.
An earlier decision of co-equal strength Bench must be followed by a later Bench of co-equal strength.
In case of a conflict between equal benches strength judgments, the earlier view alone should be followed.

In the aforesaid backdrop it is pertinent to mention that the decision of Supreme Court in Kalyan Banerjee (supra) was pronounced earlier i.e. in the year 2008 whereas the decision of Supreme Court in Abrar Ali (supra) of co-equal strength, was pronounced later i.e. in the year 2012. On the foundation of the aforesaid precedents it is pertinent to examine Baksish Ahmad (supra).

The foundation of the ratio laid down in Baksish Ahmad (supra) is anchored in Abrar Ali (supra). As discussed hereinabove, Abrar Ali (supra) itself is per incuriam, for it fails to consider three binding authoritative decisions of the Supreme Court on the issue at hand viz. Utpal Kumar (supra) Kusum Ingots (supra) and Kalyan Banerjee (supra). Therefore, in Baksish Ahmad (supra) a per incuriam decision is relied upon to lay down a position of law. A question therefore arises if a per incuriam decision is relied upon to lay down a law, does that automatically render that very decision also per incuriam?

Furthermore, the conclusion reached by the Supreme Court in Baksish Ahmad (supra) at para 27 as reproduced herein above, that Delhi High Court would have jurisdiction to entertain the Writ Petition notwithstanding that cause of action has not arisen within its territorial limits because of situs of office of the Union of India/DG, BSF is in Delhi- is a finding directly in teeth of the ratio laid down by the three judge bench in Kusum Ingots (supra) wherein the Supreme Court categorically held Delhi High Court would not have the territorial jurisdiction to entertain the Writ petition only because of situs of office of Union is in Delhi. Absent a cause of action, seat of Union in Delhi alone will not clothe Delhi High Court with jurisdiction to entertain the Petition. This satisfies the qualification laid down by Supreme Court in Praveen Kumar (supra) viz. a decision is per incuriam when its ratio is not reconcilable with an earlier decision rendered by a Bench of equal or higher strength. The Supreme Court in Baksish Ahmad (supra) also failed to examine or refer the decision of three judge bench in Utpal Kumar (supra) which qualified the invocation of Article 226(1) with the requirement that cause of action must arise within the territorial limits of the High Court.

However, the Supreme Court in Praveen Kumar (supra) added a caveat and held that a decision is not per incuriam if it makes reference to an earlier decision and then concludes correctly or incorrectly, and here is where the problem arises. Because the Supreme Court in Baksish Ahmad (supra) has referred to two binding decisions deciding the issue at hand viz. Kalyan Banerjee (supra) and Kusum Ingots (supra) and then arrived at its conclusion, whether correct or incorrect. However, it is pertinent to mention that although the Supreme Court has referred to Kalyan Banerjee (supra), it did not give any observation as to why the aforesaid decision does not apply to the facts before it which were materially identical to Kalyan Banerjee (supra). Supreme Court has only referred to Ranjit Mal (supra) and Dinesh Chandra Gahtori (supra) decisions to stultify the ratio laid down in Kalayn Banerjee (supra), which itself is fallacious as demonstrated herein above, however, there is no observation as to how the facts in Kalyan Banerjee (supra) are not applicable to facts in Baksish Ahamd (supra).

In fact, as discussed herein above, the Calcutta High Court in Kalyan Banerjee (supra) has arrived at the same conclusion that the Supreme Court in Baksish Ahmad (supra) arrived at viz. that Article 226(1) and (2) invocation are independent and once Article 226(1) is satisfied Article 226(2) is immaterial. However, the Supreme Court reversed this very finding of Calcutta High Court in Kalyan Banerjee (supra) when it was challenged before it and that finding was arrived at by relying upon the three judge bench in Kusum Ingots (supra). Similarly, although the Supreme Court has referred to the Kusum Ingots (supra) however, only for the purpose of addressing the argument of Forum Non Conveniens. The Supreme Court did not engage with the ratio laid down in the aforesaid judgment viz. Writ is not maintainable in Delhi merely because Union is in Delhi in absence of cause of action arisen in Delhi. Therefore, although the Supreme Court has referred to the aforesaid decisions, however, the ratio laid down by the Supreme Court in Baksish Ahmad (supra) is not reconcilable with the aforesaid decisions, which meets the first qualification laid down by the Supreme Court in Praveen Kumar (supra) that a decision is per incuriam when its ratio is not reconcilable with an earlier decision rendered by a Bench of equal or higher strength.

Lastly, as noted hereinabove, the Supreme Court in Baksish Ahmad (supra) referred to Kalyan Banerjee (supra), however did not give any observation as to why the said decision is not applicable to the facts before it. As mentioned hereinabove, the facts in Kalyan Banerjee (supra) are materially identical to Baksish Ahmad (supra). Instead, the Supreme Court drew force and sustenance from a mere four para order passed in Abrar Ali (supra) which itself is a decision per incuriam, as discussed herein above. If the Supreme Court did not agree with the ratio laid down in Kalyan Banerjee (supra), a bench of Co-equal strength, then, as held by the Supreme Court in Praveen Kumar (supra) the matter should be referred to a bench of three judges to decide the issue. Even leaving the per incuriam analysis aside, at para 23 Supreme Court states that the decision in Kalyan Banerjee (supra) has struck a discordant note. Clearly, the Supreme Court identified the conflict and on principle laid down in Sankar Padam Thapa (supra) in case of conflict, the Supreme Court was bound by an earlier decision which is Kalyan Banerjee (supra) than Abrar Ali (supra) which was pronounced later. However, the Supreme Court did the opposite, it referred to Kalyan Banerjee (supra), did not agree with it, and drew sustenance from ratio laid down in Abrar Ali (supra), rendered by a co-ordinate bench and pronounced later, devoid of any jurisprudential analysis of the issue at hand, to conclude that Writ in Delhi High Court is maintainable as Union is in Delhi.

Therefore, the supreme Court in Baksish Ahamd (supra)-

Laid foundation on Abrar Ali (supra), a per incuriam decision, for reaching its conclusion.
Overlooked a three judge bench decision of Supreme Court in Utpal Kumar (supra)
Despite noting conflict between Kalyan Banerjee (supra) and Abrar Ali (supra) rendered by co-equal benches, followed Abrar Ali (supra) which was pronounced later.
Reached a conclusion which is not reconcilable with the ratio laid down in Kalyan Banerjee (supra) and Kusum Ingots (supra)

The aforesaid factors, in view of the author, has rendered the decision of Supreme Court in Baksish Ahmad (supra) Per Incuriam.

Conclusion

The consistent position of law running from the full bench of Delhi High Court in Sterling Agro (supra), three judge bench decision of Supreme Court in Kusum Ingots (supra), decision of Supreme Court in Kalyan Banerjee (supra) and various other Division Bench as well as Single Bench decisions of Delhi High Court as discussed herein above is that a Writ Petition shall not be maintainable in a particular High Court merely because the Seat of the Respondent authority lies within its territorial limits. Absent a cause of action arisen within its territorial limits, a Writ Petition would not be maintainable merely because Seat of the Respondent is in its territorial limits. And even if a cause of action has arisen within the territorial limits of the High Court and the Seat of the Respondent authority also lies within its territorial limits, then also the High Court may refuse to entertain the Writ Petition by invoking doctrine of forum non conveniens following the ratio laid down in Kusum Ingots (supra) and Sterling Agro (supra). The Courts have refused to interpret Article 226 of the Constitution as a two tier invocation mechanism viz. a situs of office based jurisdiction i.e. Article 226(1) and cause of action based jurisdiction i.e. Article 226 (2). In fact the three judge bench of Supreme Court in Utpal Kumar (supra) qualified the invocation of Article 226(1) with the requirement that cause of action must arise within the territorial limits of the High Court and the Division Bench of the Delhi High Court in Vinod Kumar (supra) held that both clauses of Article 226 have to be read and construed in conjunction with each other. However, the Supreme Court in Baksish Ahmad (supra) interpreted Article 226 in a manner which provides a two tier invocation mechanism. A ruling which the Supreme Court in Kalyan Banerjee (supra) in similar facts before it, while considering the order under challenge passed by Calcutta High Court, having reached the same conclusion as Baksish Ahamd (supra), reversed it by relying upon the three judge bench decision of Supreme Court in Kusum Ingots (supra). The decision of supreme Court in Baksish Ahamd (supra) has disturbed the aforesaid line of authorities which had neutralised the application of Article 226. It has failed to consider the aforesaid decisions, as discussed hereinabove, and arrived at a ratio which is not reconcilable with Kalyan Banerjee (supra) and Kusum Ingots (supra), rendering it per incuriam. If the interpretation adopted in Baksish Ahmad (supra) is applied across Article 226, it would open the floodgates to writ litigation in the Delhi High Court merely because the seat of the Union lies in Delhi, the very concern that the three-judge bench in Kusum Ingots (supra) had already addressed and foreclosed, holding that the seat of the Union alone confers no jurisdiction.

By Daksh Pandit