Calcutta High Court
Movewell Griha Nirman Pvt.Ltd.& Anr vs The Andrew Yule Co. Ltd.& Ors on 23 July, 2008
Author: Surinder Singh Nijjar
Bench: Surinder Singh Nijjar, Pinaki Chandra Ghose
G.A.917 of 2008
APOT No. 67 of 2008
W.P.26 of 2008
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
MOVEWELL GRIHA NIRMAN PVT.LTD.& ANR. Appellants/Petitioners
Versus
THE ANDREW YULE CO. LTD.& ORS. Respondents.
For Appellants/Petitioners : Mr.Debjyoti Basu, Advocate For Respondent Nos. 1-4 : Mr. Arunabha Ghosh, Sr.Advocate with Mr. Soumya Majumdar, Advocate For Respondent No.5 : Mr. S.Talukdar with Ms. Pooja Das Chowdhury and Ms. Radhika Singh, Advocates BEFORE:
The Hon'ble CHIEF JUSTICE SURINDER SINGH NIJJAR AND The Hon'ble JUSTICE PINAKI CHANDRA GHOSE Date : 23rd July, 2008.
THE COURT : This appeal has been filed against the judgment of the learned single Judge dated 5th of February 2008 rendered in Writ Petition No.26 of 2008. The petitioner is aggrieved by the grant of a contract in favour of Respondent No.4 (in the writ petition).
When the matter came up for hearing before the learned single Judge, a preliminary objection was raised that the respondent Andrew Yule Co. Ltd. would not fall within the definition of 'State' as contained in Article 12 of the Constitution of India. In support of the submission, the learned counsel for the respondent Nos.1 to 4 relied upon a Division Bench judgment of this Court in the case of Anupam Ghosh v. Union of India & Ors. 1991 (II)CHN 451. The Trial 2 Court dismissed the Writ petition after noticing the submission of the learned counsel for the writ petitioner that the view taken by the Division Bench would not be good law any longer in view of the judgment of the Supreme Court in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Ors. 2002(5) SCC 111. The Trial Court dismissed the writ petition with the following observations :-
" This Court has perused the pleadings in the petition. The pleadings appear to be absolutely insufficient for arriving at a decision on the point as to whether Andrew Yule is a 'State' or not upon application of the tests laid down in Pradeep Kumar Biswas (supra). The extent of administrative, financial and functional control exercised by the Central Government over Andrew Yule has not been indicated in the petition. In its absence, this Court is unable to embark on an investigation as to whether Andrew Yule is a 'State' or not."
.... ....
However, dismissal of this writ petition shall not preclude the petitioners from approaching the appropriate Court for damages, if so advised."
Learned counsel for the appellant submitted that the Division Bench in the case of Anupam Ghosh (supra) has based its decision relying on a judgment of the Supreme Court in the case of Sabhajit Tewari v. Union of India, AIR 1975 SC 1325. It is submitted that the ratio of law laid down in the case of Sabhajit Tewari (supra) has been subsequently diluted by the Supreme Court in the case of Pradeep Kumar Biswas (supra).
On the other hand, learned counsel for the Respondents Nos.1 to 4 submitted that the judgment rendered by the 3 Division Bench cannot be said to be based on Sabhajit Tewari (supra) alone. In fact, the judgment has been rendered on consideration of the entire case law commencing from Praga Tools Corporation v. Immanual AIR 1969 S.C.1306 upto M.C.Mehta v. Union of India AIR 1987 SC 1086, which judgment was rendered in the year 1987.
We have considered the submissions made by the learned counsel. We have also perused the judgment of the Division Bench. It is clearly evident that the Division Bench considered the relevant factors concerning the respondent- Company to come to a reasoned decision that the same would not fall within the ambit of Article 12 of the Constitution of India. A perusal of paragraphs 3 and 4 of the judgment would clearly show that the Division Bench considered all necessary facts and materials placed before it. However, on applying the various tests indicated by the Supreme Court in the cases of Som Prakash Rekhi AIR 1984 S.C.212 and Ajay Hasia AIR 1981 S.C.487, the Division Bench has concluded that the respondent Andrew Yule Co.Ltd. does not fall within the ambit of Article 12 of the Constitution of India. The learned Single Judge in this case has reached the same conclusion by relying upon the tests laid down by the Supreme Court in the case of Pradeep Kumar Biswas (supra). Therefore, it cannot be said that the judgment of the Trial Court is based only on 4 the earlier decision of the Division Bench in the case of Anupam Ghosh (supra).
We see no reason to take a view different than the one expressed by the Division Bench. In view of the above we hold that the writ petition has been correctly dismissed by the learned single Judge.
Both the appeal and the application are dismissed. Xerox certified copy of this order be made available to the parties upon compliance of usual formalities.
( SURINDER SINGH NIJJAR,C.J.) ( PINAKI CHANDRA GHOSE, J.) Rsg.