Can constitutionality of a Parliamentary Act be challenged only in Delhi High...

Can constitutionality of a Parliamentary Act be challenged only in Delhi High Court?

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Question: As per the cause of action which arose in Mumbai, my case needs to be filed before the Bombay High Court. I have to file a writ petition. In this petition, I want to challenge the constitutionality or the vires of a Central Act which is passed by the Parliament of India which is situated in New Delhi. I have been advised by my lawyer that if I want to challenge the vires of the Parliamentary Act then I have to file a writ petition only in Delhi High Court since the Parliament is located within the jurisdiction of that High Court and the cause of action of passing the said Act occurred in New Delhi. Please guide me whether I can file this writ petition only in Delhi High Court, which includes challenge to the constitutionality of the Central Act?

Answer: You have mentioned that the actual cause of action for filing your writ petition is in Mumbai and therefore the writ petition needs to be filed before Bombay High Court. The only issue before you is: since you also want to challenge the constitutionality of a Central Act passed by the Parliament (located in New Delhi), so whether the vires of the Central Act can be challenged only in Delhi High Court and not in any other High Court where the actual cause of action for the proposed writ petition has arisen.

In fact, this issue is no longer res integra. This issue has already been settled by the Supreme Court in the case of Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254 : AIR 2004 SC 2321. In this case, the appellant company was registered with its registered office being at Mumbai. It obtained a loan from the Bhopal Branch of State Bank of India. Respondent No. 2 issued a notice for repayment of the said loan from Bhopal which was in terms of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Questioning the vires of the said Act, a writ petition was filed before the Delhi High Court by the appellant company which was dismissed on the ground of lack of territorial jurisdiction. The only submission made on behalf of the appellant before the Delhi High Court and then before the Supreme Court was that as the constitutionality of a parliamentary Act was in question, the High Court of Delhi had the requisite jurisdiction to entertain the writ petition. Thus, the question that arose for consideration before the Supreme Court was whether the seat of 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. Dismissing the appeal, the Supreme Court held that a writ petition 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. The Supreme Court further held as under:

“A parliamentary legislation when it receives the assent of the President of India and is published in the Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled, would not determine a constitutional question in a vacuum.”

It was also held that a legislation is not confined to a statute enacted by Parliament or the legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instructions issued in this behalf shall also come within the purview thereof. A distinction between a legislation and executive action should be borne in mind while determining whether a cause of action arose at a particular place. Passing of a legislation by itself does not confer any such right to file a writ petition unless a cause of action arises therefor. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action on cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate / revisional authority is constituted at another, a writ petition would be maintainable at both the places as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.

Coming back to your question, since the main cause of action has arisen in Mumbai, you can file the writ petition in Bombay High Court, including the question of constitutionality or vires of the Central Act. You do not have to file this case in Delhi High Court merely because of the reason that the Parliament is located in New Delhi. In fact, as held by the Supreme Court in the above case, Delhi High Court will not have jurisdiction in this matter, since the main cause of action has arisen at Mumbai. So, go ahead and file your case in Bombay High Court.

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