# Madras v. R. Perachi and Ors., AIR

- **Citation:** (2013) 3 ILRA 1385
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-25
- **Case number:** Civil Misc. Writ Petition No.52475 of 2013
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madras-v-r-perachi-and-ors-air-42710
- **Pages:** 3

## Headnote

Constitution of India, Art.-226- 'Doctrine of
forum convenience'-explained-part of cause
of action arose at Jharkhand-and partly at
Allahabad-considering convenience of both
parties residing at Jharkhand-declined to
entertain
petition-keeping
it
open
to
approach before High Court of Jharkhand.

Held: Para-8
In the light of the aforesaid, the Court is not
inclined
to
exercise
its
discretionary
jurisdiction under Article 226 of the
Constitution of India and by invoking the
doctrine of "forum convenience", the writ
petition is dismissed with the observation
that it would be open to the petitioner to
litigate and agitate the matter before the
High Court at Jharkhand.

Case Law discussed:
AIR 1976 SC 331; 2004(6) SCC 254; AIR 2011
Delhi 174; 2012(8) ADJ 61.

## Text

3 All] Sumit Kumar Gupta Vs. Debts Recovery Appellate Tribunal & Ors.
1385
(supra) was not a matter related to transfer
and, therefore, has no application at all in
respect to the issue up for consideration in
the present case. There the matter relates to
the Government policy/instructions which
were found relevant in respect of right of life
convicts conferring right of early release and
the Court held that if such a scheme has been
framed, the incumbent may ask the
Government to consider his case according
to such scheme.

20. Both the judgements, therefore, in
my view, do not help the petitioner at all. On
the contrary, there are some subsequent
authorities of the Apex Court also which
have deprecated any attempt to interfere with
the orders of transfer very lightly.

21. Recently in The Registrar
General High Court of Judicature at
Madras Vs. R. Perachi and Ors., AIR
2012 SC 232, the Court has observed:

"...transfer is an incident of service, and
one cannot make a grievance if a transfer is
made on the administrative grounds, and
without attaching any stigma....".

22. The Court also referred to its
earlier decision in Airports Authority of
India Vs. Rajeev Ratan Pandey, 2009
(8) SCC 337 and said :

"in a matter of transfer of a govt.
employee, the scope of judicial review is
limited and the High Court would not interfere
with an order of transfer lightly, be it at
interim stage or final hearing. This is so
because the courts do not substitute their own
decision in the matter of transfer."

23.

A
transfer
is
made
in
administrative exigency, if there is a
complaint pending and instead of a regular
department enquiry, the authority concerned
decided to transfer a person concerned. It
would then be a transfer purely on
administrative ground and not by way of
punishment etc. This approach has been
approved by Apex Court in The Registrar
General High Court of Judicature at
Madras (supra), and in para 27 of the
judgment the Court observed:

"...the transfer was purely on the
administrative ground in view of the pending
complaint and departmental enquiry against
first Respondent. When a complaint against
the integrity of an employee is being
investigated, very often he is transferred
outside the concerned unit. That is desirable
from the point of view of the administration
as well as that of the employee.

24. In Tushar D.Bhatt Vs. State of
Gujarat & Ors., JT 2009 (2) SC 474,
reiterating well established principle in
long chain of authority the Court said:

"The legal position has been crystallized
in number of judgments that transfer is an
incidence of service and transfers are made
according to administrative exigencies."

25. In view of above discussions and
observations, I find no merit in the writ
petition. It is, accordingly, dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.52475 of 2013

Sumit Kumar Gupta

 ...Petitioner
Versus
Debts Recovery Appellate Tribunal & Ors.
 ..Respondents
1386 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Ashok Kumar Tiwari, Sri N.L. Srivastava

Counsel for the Respondents:
Sri Rahul Sahai, Sri Sandeep Agarwal

Constitution of India, Art.-226- 'Doctrine of
forum convenience'-explained-part of cause
of action arose at Jharkhand-and partly at
Allahabad-considering convenience of both
parties residing at Jharkhand-declined to
entertain
petition-keeping
it
open
to
approach before High Court of Jharkhand.

Held: Para-8
In the light of the aforesaid, the Court is not
inclined
to
exercise
its
discretionary
jurisdiction under Article 226 of the
Constitution of India and by invoking the
doctrine of "forum convenience", the writ
petition is dismissed with the observation
that it would be open to the petitioner to
litigate and agitate the matter before the
High Court at Jharkhand.

Case Law discussed:
AIR 1976 SC 331; 2004(6) SCC 254; AIR 2011
Delhi 174; 2012(8) ADJ 61.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri N.L Srivastava, the
learned counsel holding the brief of Sri
Ashok Kumar Tiwari, the learned counsel
for the petitioner and Sri Sandeep
Agarwal, the learned counsel holding the
brief of Sri Rahul Sahai, the learned
counsel for respondent nos. 2 and 3.

2. The petitioner has filed the present
writ petition praying for the quashing of the
order dated 26th July, 2013 passed by the
Debts
Recovery
Appellate
Tribunal,
Allahabad as well as the order dated 3rd
June, 2011 passed by the Debt Recovery
Tribunal, Ranchi in the State of Jharkhand.

3. A preliminary objection was
raised with regard to the maintainability
of the writ petition before this Court. The
Court has heard the learned counsel for the
parties at some length and finds that a part of
cause of action arose within the territorial
limits of this Court, inasmuch, as the appellate
order was passed by an authority, which was
located at Allahabad, which is within the
territorial jurisdiction of this Court.

4. In the light of the various decisions of
the Apex Court starting from Sri Nasiruddin
Vs. State Transport Appellate Tribunal,
AIR 1976 SC 331 and Kusum Ingots and
Alloys Ltd. Vs. Union of India 2004 (6)
SCC 254, since a part of cause of action has
arisen, the writ petition is maintainable.
However,
the
Court
in
the
given
circumstances is not inclined to entertain the
writ petition for the following reasons:

a. The petitioner is a resident of
district East Singhbhum, Jamshedpur in
the State of Jharkhand.

b. The respondent nos. 3,4 and 5 are
also resident of district East Singhbhum,
Jamshedpur in the State of Jharkhand.

c. Notice under the SARFAESI Act
was issued by the bank from Jharkhand,
which was questioned by the petitioner
before the Debt Recovery Tribunal at
Ranchi in the State of Jharkhand.

d. The petitioner, being aggrieved by
the order of the Debt Recovery Tribunal,
filed an appeal before the Debt Recovery
Tribunal at Allahabad.

e. All the contesting parties are resident
of district East Singhbhum, Jharkhand except
respondent no. 1, which is the Debt
Recovery Appellate Tribunal, which is
located at Allahabad and is only a formal
party.

5. The Court is of the opinion that the
doctrine of "forum convenience" comes into
3 All] Aalam Ali Khan and Anr. Vs. Smt. Anjul and Ors.
1387
play,
namely,
that
in
the
given
circumstances, the Court will decline to
exercise its extra ordinary jurisdiction under
Article 226 of the Constitution of India and
leaves it to the party to file a petition before
the appropriate Forum, which in the instant
case would be the High Court at Jharkhand.

6. The doctrine of "forum convenience"
was examined by a Full Bench of five Judges
of the Delhi High Court in M/s. Sterling Agro
Industries Ltd. Vs. Union of India and
others, AIR 2011 Delhi 174. The Full Bench
of the Delhi High Court held that, even though,
a part of cause of action has arisen in the State,
where the appellate authority is located, it does
not become the "forum convenience" for a
party to challenge that order in that particular
State, inasmuch as, it is obligatory on the part
of the Court to see the convenience of all the
parties. The Full Bench held that the concept of
"forum convenience" means that it is obligatory
on the part of the Court to see the convenience
of all the parties before it, which would include
the existence of more appropriate forum,
expenses involved, the law relating to the lis,
verification of certain facts which are necessary
for just adjudication of the controversy
involved and its ancillary aspects. The balance
of convenience is also to be taken into
consideration. The Supreme Court in the case
of Kusum Ingots (supra) also touched on the
aspect of forum convenience while opining that
the cause or part of action would entitle the
High Court to entertain the writ petition.

7. In similar situation, where the Debt
Recovery Tribunal of Madhya Pradesh had
passed an order and the Appellate Tribunal at
Allahabad had dismissed the appeal, a writ
petition was filed before this Court, wherein,
the Court declined to entertain the petition
and directed the parties to litigate before the
appropriate forum in Madhya Pradesh. This
judgement,
namely,
M/s.
Dynamic
Education
Systems
(International)
Limited and another Vs. Bank of Baroda
and others, 2012 (8) ADJ 61 is fully
applicable in the instant case.

8. In the light of the aforesaid, the
Court is not inclined to exercise its
discretionary jurisdiction under Article 226
of the Constitution of India and by invoking
the doctrine of "forum convenience", the writ
petition is dismissed with the observation
that it would be open to the petitioner to
litigate and agitate the matter before the High
Court at Jharkhand.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2013

BEFORE
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No.53092 of 2013

Aalam Ali Khan and Anr. ...Petitioners
Versus
Smt. Anjul and Ors. ...Respondents

Counsel for the Petitioner:
Sri Nipun Singh

Counsel for the Respondents:
-----

Constitution of India, Art.-226- Appeal
against rejection of application-under order
21 rule 97 admitted-prayer for interim
order rejected-submission that as per
verdict of Apex Court once appeal admittedinterim relief must be given-held-petitioner
being stranger failed to produce any
evidence either oral or documentary either
before lower appellate court or before writ
court-rejection of interim relief-held proper.

Held: Para-13 & 14
13. The appeal, admittedly is pending and
it is for the petitioners to bring on record
evidence to show that the order of the