Territorial Jurisdiction under Article 226: Cause of Action, Situs of the Authority and Forum Conveniens

A High Court exercises jurisdiction over a defined territory, and the question which High Court may entertain a writ petition arises constantly in a country where authorities are headquartered in one State, decisions are communicated to persons in another, and consequences are felt in a third. Article 226 answers it in two limbs. The first confers power over authorities within the High Court's territory; the second, added by the Fifteenth Amendment, extends the power to authorities outside it where the cause of action wholly or in part arises within it. The second limb has generated most of the litigation, because petitioners naturally prefer some forums to others and because a small connection with a territory is easy to assert. This topic sets out both limbs, what counts as a cause of action, and the discretionary doctrine of forum conveniens.

1. The Two Limbs

Article 226(1) and 226(2)

Article 226(1) empowers every High Court, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs for the enforcement of fundamental rights and for any other purpose. Article 226(2) provides that the power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

The historical background explains the second limb. Before the Fifteenth Amendment of 1963, jurisdiction depended on the location of the authority, with the consequence that a person anywhere in India aggrieved by an order of the Union Government had to come to the Delhi High Court, and that a High Court could not reach an authority sitting outside its territory however local the effect of the order. Clause (2) cured that by adding the cause of action as an independent basis.

2. What Counts as a Cause of Action

📖 Oil and Natural Gas Commission v. Utpal Kumar Basu, (1994) 4 SCC 711

Facts: A tender for work at Hazira in Gujarat was advertised in newspapers circulating in Calcutta. A Calcutta company submitted its bid from Calcutta, corresponded from there, and on being unsuccessful moved the Calcutta High Court, which entertained the petition. The tender documents had been issued and the decision taken outside West Bengal, and the project was in Gujarat.

Held: The Supreme Court held that the Calcutta High Court had no territorial jurisdiction. It held that the expression cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support his right to the judgment; facts which have no bearing on the lis do not give rise to a cause of action. The mere fact that the advertisement was read in Calcutta, that the bid was submitted from Calcutta and that representations were made from there did not constitute any part of the cause of action, since none of those facts was an integral part of the decision impugned: the tender was to be performed in Gujarat, the documents were issued elsewhere, and the decision was taken outside West Bengal. The Court cautioned that High Courts should scrupulously observe the limits of their territorial jurisdiction and should not entertain petitions on a tenuous connection with their territory.

Ratio: The leading case on clause (2). Only facts forming an integral part of the cause of action count; the receipt of information, the despatch of correspondence or the residence of the petitioner within a territory does not by itself confer jurisdiction.

3. Part of the Cause of Action Must Be Substantial

📖 Alchemist Ltd. v. State Bank of Sikkim, (2007) 11 SCC 335

Facts: A tender process conducted in Sikkim was challenged in the Punjab and Haryana High Court, the petitioner relying on the facts that the advertisement had appeared in newspapers circulating in Chandigarh, that the bid had been despatched from there and that communications had been received there.

Held: The Supreme Court held that the Punjab and Haryana High Court lacked jurisdiction. It restated the principles: a High Court has jurisdiction under clause (2) where the cause of action wholly or in part arises within its territory, but the expression must be given its ordinary meaning, and the facts pleaded must have a nexus or relevance with the lis. It is not every fact, but only a fact forming an integral part of the cause of action, that will do; a fact which is incidental or of no consequence, however connected with the transaction, does not confer jurisdiction. The Court held that even where a part of the cause of action arises within a High Court's territory, that court is not obliged to entertain the petition and may, on the doctrine of forum conveniens, decline to exercise jurisdiction where another forum is more appropriate.

Ratio: A fragment of the cause of action must be integral rather than incidental. Even where part of the cause of action arises within the territory, the High Court retains a discretion to decline on the ground of forum conveniens.

Fact relied on	Does it confer jurisdiction?
The impugned order was made within the territory	Yes; the core of the cause of action
The authority is situated within the territory	Yes, under clause (1)
The contract was to be performed within the territory	Yes, ordinarily an integral fact
The property or the project is within the territory	Yes, where the dispute concerns it
The order was communicated to and received within the territory	Generally not by itself; receipt of communication is usually incidental
The advertisement was read within the territory	No (ONGC v. Utpal Kumar Basu)
The bid or representation was sent from within the territory	No, standing alone
The petitioner resides or has an office within the territory	No; residence alone is not a cause of action
The legislation was enacted by Parliament sitting in Delhi	No; the seat of the legislature confers nothing
The appellate or revisional order was made within the territory	Yes; the appellate order is itself part of the cause

4. The Position on Legislation and on Appellate Orders

Two recurring questions were settled in Kusum Ingots and Alloys Ltd. v. Union of India, (2004) 6 SCC 254. First, the passing of a legislation by Parliament does not by itself confer a cause of action within the territorial jurisdiction of the court at the seat of Parliament; a person challenging a central Act must show some other connection with the forum he has chosen. Secondly, an order passed on the merits by a High Court on the constitutionality of a statute operates throughout the country, since a declaration of invalidity is not confined to the territory of the court that made it. The Court also confirmed that even where a small part of the cause of action arises within a High Court's jurisdiction, the court may refuse to exercise its discretion on the principle of forum conveniens.

On appellate and revisional orders, the position is that the order under challenge is itself part of the cause of action, so the High Court within whose territory the appellate authority sits has jurisdiction; whether the High Court within whose territory the original order was made also has jurisdiction depends on whether that order is under challenge and on where the original cause arose. Where both courts have jurisdiction, forum conveniens decides.

5. Forum Conveniens

Territorial jurisdiction and the exercise of it are separate questions. A High Court may have jurisdiction because part of the cause of action arose within its territory and still decline to exercise it because another High Court is clearly the more appropriate forum. The considerations are these.

Where the substantial part of the cause of action arose, as distinct from the fragment relied on.
Where the records and the authorities are, since the respondent must be able to defend the petition.
Where the consequences of the order are felt, and where any relief would have to be worked out.
Convenience of the parties and witnesses, and the cost of litigating in each forum.
Whether connected proceedings are pending elsewhere, since fragmenting a dispute across forums is undesirable.
Whether the choice of forum appears designed to avoid an unfavourable precedent of the natural forum.

⚠ The two questions must be kept apart

Objections to territorial jurisdiction are often argued as though there were one question, and there are two. The first is whether the High Court has jurisdiction at all, which depends on clause (1) or on whether an integral part of the cause of action arose within the territory; if the answer is no, the petition must be returned or dismissed, and the court has no discretion in the matter. The second arises only if the answer to the first is yes, and it asks whether the court should exercise a jurisdiction it undoubtedly has; here forum conveniens operates and the court has a full discretion. Confusing the two produces the familiar error of describing a forum conveniens refusal as a finding of no jurisdiction, which it is not, and which matters because the two lead to different consequences for a fresh petition elsewhere.

6. The Position in Summary

Article 226(1) confers jurisdiction over authorities within the High Court's territory; Article 226(2), added by the Fifteenth Amendment, extends it to authorities outside where the cause of action wholly or in part arises within it.
Cause of action means the facts necessary to support the claim; facts having no bearing on the lis do not count, and reading an advertisement, despatching a bid or residing within the territory does not confer jurisdiction (ONGC v. Utpal Kumar Basu).
A part of the cause of action must be integral rather than incidental, and even then the court may decline on the ground of forum conveniens (Alchemist Ltd.).
The enactment of a law by Parliament confers no cause of action at the seat of Parliament, and a High Court's decision on the constitutionality of a statute operates throughout the country (Kusum Ingots).
Jurisdiction and its exercise are distinct: want of jurisdiction leaves no discretion, while forum conveniens operates only where jurisdiction exists.

7. Related Topics and Provisions

Constitutional Writs (Topic 106): Articles 32 and 226 and the difference between them.
The Five Writs Compared (Topic 114): the reach of Article 226 generally.
Alternative Remedy (Topics 117 and 118) and Delay and Laches (Topic 119): the other threshold objections.
Res Judicata in Writ Proceedings (Topic 120): the effect of a decision by another High Court.
Judicial Review of Government Contracts and Tenders (Topic 98): the field in which these disputes most often arise.
Constitution of India: Articles 32, 226(1), 226(2) and 227; Constitution (Fifteenth Amendment) Act, 1963.