Calcutta High Court (Appellete Side)
Dr. Sekhar Chandra Set vs Secretary on 21 June, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
1
21.06.2019
Item no. 03
dd RVW 104 of 2019
+
CAN 4621 of 2019
in
WP 20999 (W) of 2018
Dr. Sekhar Chandra Set
Vs.
Secretary, Ministry of Culture,
Government of India
Dr. Sekhar Chandra Set
... ... Applicant in person
Mr. Kaushik Chanda, ld. ASG
... ...For respondent
Review applicant appears in person. He seeks review of order dated 30th January, 2019, by which, on respondent in the writ petition, Union of India, having taken point of territorial jurisdiction, inter alia, following was said :-
"Mr. Partha Sarathi Sengupta, learned senior advocate is appointed Amicus Curiae to assist this Court in determining whether it has territorial jurisdiction to entertain this writ petition. Department will serve a copy of the writ petition along with orders on Mr. Sengupta."
Applicant submits, reopening for determination whether this Court has territorial jurisdiction to entertain the writ petition is an error apparent on the face of record and hence, review maintainable. He submits, there is an application for condonation of delay which be allowed and this review application be decided. Mr. Chanda, learned senior advocate, Additional Solicitor General appears for Union of India and in fairness does not oppose the condonation of delay application. Same is allowed.
Applicant relies on two judgments of Supreme Court. In Raichand & Co. & Anr. vs. Director General of Foreign Trade & Ors. reported in 1990 (1) CLJ 425, he relies on paragraph 7, in which there is discussion on several cases considered by the Bench. He gives particular emphasis to sub-paragraph (viii) 2 wherein State of Rajasthan vs. Swaika Properties, reported in AIR 1985 SC 1289, was discussed. He relies on extract from that judgment in Raichand & Co. (supra), which extract is reproduced below :-
"(b) If the challenge is to the vires of a Central statute or notification or other statutory instrument which is applicable nationwide the place where the petitioner is affected by the implementation of the statute would have the jurisdiction to entertain the challenge. A distinction is to be drawn between circulars which are executive in character and statutes or statutory orders, notifications or other statutory instruments (See (10) Hindusthan Sugar Mills v. Union of India & Ors. AIR 1985 Cal 17)."
Applicant refers to orders dated 12th November, 2018 and 2nd January, 2019 in asserting that point of jurisdiction stood decided thereby. 12th November, 2018 was order passed when respondent went unrepresented. Submissions made on behalf of respondent in applicant's earlier writ petition, dealt with by a learned single Judge of this Court, were extracted in part and applicant directed to serve on office of Additional Solicitor General. By order dated 2nd January, 2019 directions for affidavits were given on prayer made to that effect by learned advocate appearing on behalf of respondent. An interim order was passed restraining respondent from publishing names of selected candidate till disposal of the writ petition. This, applicant submits, is implied rejection of contention of respondent that this Court exercising writ jurisdiction does not have it by lack of territorial aspect of jurisdiction.
As aforesaid, order dated 12th November, 2018 was passed when respondent was not represented. On 2nd January, 2019 respondent sought opportunity to answer the challenge. There was no concession recorded on part of respondent in waiving any contention in resisting, it might have. Interim order passed was on prima facie appreciation of circumstances and in aid of successful party in the writ petition, to prevent multiplicity of judicial proceedings.
Order under review records affidavits were filed. Respondent asserted point of lack of territorial jurisdiction. Applicant, since was appearing in person, Court required assistance and appointed Amicus Curiae in determining this point of demurer. Nothing was decided for applicant to consider himself aggrieved. Hence, review does not lie. Applicant has relied on judgment of Supreme Court 3 in Harshad Chiman Lal Modi reported in (2005) 7 SCC 791 to urge that point of jurisdiction must be taken at the earliest. Above recital of sequence of proceedings, as appearing from aforesaid orders, will demonstrate that respondent took the point at the first hearing. So far as Raichand & Co (supra) is concerned, applicant might rely on the same in at hearing of the writ petition.
Review application is found to be without merit and same is dismissed.
(Arindam Sinha, J.)