India Timber & Seasoning Plant ... vs Union Of India Thr Secretary Ministry Of ... on 18 February, 2016

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Jharkhand High Court

India Timber & Seasoning Plant ... vs Union Of India Thr Secretary Ministry Of ... on 18 February, 2016

Equivalent citations: 2016 (2) AJR 643, (2016) 2 JLJR 410 (2016) 2 JCR 531 (JHA), (2016) 2 JCR 531 (JHA)

2. Challenge on merits to the letter bearing F.No.8-80/2015-PP-II dated 26.10.2015 (Annexure-17) issued by the Deputy Secretary, Department of Agriculture, Cooperation and Farmer Welfare, Ministry of Agriculture and Farmers Welfare, Government of India has been made by the petitioner where under the decision of the competent authority has been communicated to the Plant Protection Advisor, Directorate of Plant Protection Quarantine and Storage for lodging F.I.R against the importer and exporter; return / diversion of the Consignment.

3. After the writ petition was taken up on 6.11.2015 and an interim order was passed to the effect that no coercive steps shall be taken pursuant to the order dated 26.10.2015, the respondent- Union of India has filed counter affidavit on merit and followed by supplementary counter affidavit. It has raised a preliminary objection as to the maintainability of the writ petition on the ground of lack of territorial jurisdiction as allegedly no cause of action has arisen within the jurisdiction of this Court.

4. Essential facts which are required to consider for answering the plea of maintainability are being noticed here under:-

Petitioner- Company is a licensee of Import and Export issued by the Ministry of Commerce and Industry, Government of India vide Annexure-1 dated 30.8.2001. Petitioner's Headquarter is at Ranchi. It placed an order to Suryadeep International FZC Company at Sharjah, United Arab Emirates giving its requirement of timber on which the proforma invoice was raised through official mail to the petitioner(Annexure-2). The proforma invoice showed the address of the consignee / importer i.e. petitioner at Old Hazaribag Road, Kokar, Ranchi, Jharkhand. The shipment information showed the proforma invoice PI/SDI/2015-16/017 dated 14.5.2015 with Port of loading as any sea port in Netherland, Spain, Germany, West Africa; Port of Discharge as any Seaport in India and Discharge and Delivery at any Seaport in India. The description of the commodity of specified quantity in Unit Price USD of the consignment of Gmelina Logs & Gmelina Rough Square Logs and Teak Logs & Teak Rough Square Logs is shown there. The terms and conditions showed documents of shipment to be forwarded to the Banker after the receipt of irrevocable letter of credit of usance period of 180 days from the date of presentation of documents in the Bank of the consignee. All bank charges are to be borne by the consignee. Checking of materials to be done within 24 hours after arrival of containers. There can be tolerance of ±1 ½ % in measurement. All Custom, Excise, Cess, Taxes or Duties of any kind at the Indian Ports shall be borne by the Consignee. Consignment started from the country of Ivory Coast and were delivered at its destination at Nagpur through Commercial ship namely SAF Marine Shipping Company. The commercial invoice dated 21.6.2015 was issued to the HDFC Bank which has issued the letters of Credit in 3 its favour at the instance of the petitioner(Annexure-5).

5. At this stage, it would be relevant to state that any such shipment containing the goods of the nature specified there in were required to carry Phyto Sanitaire certificate in terms of the Plant Quarantine (Regulation of Import Into India) Order,2003 framed in exercise of powers as conferred by sub-section (1) of Section 3 of the Destructive Insects and Pests Act,1914 by the Central Government. The purpose is to prohibit and regulate the import into India of agricultural articles mentioned in the order. Petitioner made request for inspection before the Plant Protection Quarantine Officer who is designated as Assistant Director(E) Central Integrated Paste Management Centre, Nagpur (Annexure-

12). Its notings reflected that because of non-compliance of requirement of certification relaxation could be sought from the Department of Agriculture and Cooperation, Directorate of Plant Protection Quarantine Storage. Petitioner had produced quarantine certificate obtained through its Bank i.e. HDFC after receiving of the consignment and issuance of letters of Credit before the Plant Protection Officer at Nagpur. Petitioner applied for inspection in the said prescribed format at Annexure-12 and deposited the requisite fee. It got the entire imported timber fumigated by the agency approved by the authorities and after that the said agency issued Fumigation certificate to the petitioner on 21.8.2015 (Annexure-

15). According to the petitioner after such fumigation, goods do not have any chance of getting any infection; the process of fumigation could also be repeated if the authorities so desired. They can further go for the process of dis-infestation or disinfection for which the provision is contained in the Order of 2003. The aforesaid process reached the stage where the Assistant Director, Directorate of Plant Protection Quarantine and Storage informed 4 the Plant Protection Advisor, Ministry of Agriculture for any relaxation vide letter dated 27.8.2015 (Annexure-16). Annexure-16 evidences that the petitioner had filed on-line import application to the said Office for import of teak logs from Ivory Coast. The Phyto Sanitaire certificate dated 14.6.2015 of the description shown there in was found to be incomplete / invalid without fulfilling NPPO India, Place of Origin, Botanical name of the commodity and place of issue and fumigation details. The importer had requested for relaxation and submitted undertaking on Non-Judicial Stamp paper. The letter also indicated fumigation of consignment with Methyle Bromide and was found to be free from live infestation / infestation.

6. However, it is the case of the petitioner that instead of granting relaxation, the Plant Protection Advisor, Faridabad was conveyed about the decision of the Directorate of Plant Protection Quarantine and Storage regarding (i) F.I.R to be lodged against the Importer and Exporter; (ii) consignment to be returned/ diverted;

(iii) NPPO of the Exporting country to be notified and (iv) Customs & PQ authorities at all entry points in India to be alerted about such Exporter and Importers.

7. In these backgrounds of facts, learned counsel for the petitioner in the first place has sought to answer the challenge to the plea of maintainability raised by the respondent- Union of India. Emphasis is placed upon the receipt of proforma invoice, Annexure- 2 at the Head Office of the petitioner- company at Kokar, Ranchi, which was the place for initiation of entire transaction and forms the cause of action to lay a challenge before this Court.

8. Learned A.S.G.I appearing on behalf of the Union of India made the following submission on the point of maintainability:- it is contented that no part of lis or dispute involved in the case falls within the territorial jurisdiction of this Court to constitute any 5 cause of action for invoking the writ jurisdiction of this Court. It is submitted that the consignment was delivered at Nagpur and is lying under custody of Assistant Commissioner of Custom, Inland Container Depot (ICD) at Nagpur and cannot be released until release order is issued by the respondent no.4 at Nagpur. The dispute arises out of the impugned order dated 26.10.2015 by which the Plant Protection Advisor at Faridabad, Haryana i.e., the controlling authority of the Plant Protection Quarantine and Storage, CIPMC at Nagpur was directed to lodge F.I.R against the Exporter and Importer and also to return the consignment. Documents enclosed from Annexure5 to 10, 12 to 16 disclose that

(i) the consignee is Indian Timber and Seasoning Plant , Nagpur;(ii) the consignment is delivered at Nagpur;(iii) the phyto sanitaire certificate and all other documents were produced by the consignee before the respondent no.4 at Nagpur;(iv) the subsequent correspondence relating to relaxation in respect of consignee and the consignment was initiated from the office of Respondent no.4 at Nagpur, on account of incomplete phytosantitaire certificate;(v) it is in course of scrutiny of the case for subsequent relaxation, the Ministry of Agriculture and Farmers Welfare, Government of India, respondent no.1 to 3 found the Phyto sanitaire Certificate to be forged and accordingly issued impugned order dated 26.10.2015;(vi) the consignment is lying in custody at Nagpur.

Based upon the aforesaid facts, it is submitted that no cause of action relating to the dispute involved in the case falls within the territorial jurisdiction of this Court except that the Headquarter is at Ranchi and the Director of the company resides within the jurisdiction of this Court. In support of his contention learned A.S.G.I has placed a judgment rendered by the Hon'ble Supreme 6 Court in the case of Union of India & others Vrs. Adani Exports Ltd and another reported in (2002) 1 SCC 567. Specific reference has been made to the similarity of the facts of the present case to that of the case of Adani Exports (supra). Reference has been made specifically to para 9, 10,11,17 and 19 to buttress his contention. It is submitted that merely owning or having a office or property or residing at a particular place, receiving of a fax message at a particular place , maintaining statements of accounts of business etc are not factors which would give rise to wholly or in part cause of action conferring territorial jurisdiction to Courts as has been found in the said case also. It is also submitted that except the proforma invoice, Annexure-2, relied upon by the petitioner, all other events have either occurred at Nagpur or on issuance of the impugned order at New Delhi. Therefore, this Court should not entertain the writ petition on the grounds of maintainability.

9. Learned counsel for the petitioner in response has relied upon the judgments rendered by the Apex Court in the case of Union of India & others Vrs. Oswal Wollen Mills Ltd reported in 1984 (2) SCC 646 and in the case of A.B.C. Laminart Pvt. Ltd. & another Vrs. A.P. Agencies, Salem reported in 1989 (2) SCC 163, para 12 thereof. It is submitted that it is the bundle of facts which constitute the cause of action and one fact cannot be read divorced from the details of facts and circumstances to exclude the jurisdiction of this Court on the plea of lack of territorial jurisdiction. Therefore, the writ petition is wholly maintainable and moreover pleadings are also complete on merit of the case.

10. I have considered the submission of the parties at length. The relevant provisions of the Order 2003, i.e. clause 2(iii), (xi),(xix), (xxii), clause 3(16) and (18) are necessary to be noticed here under 7 and are accordingly quoted :-

"2. (iii) "consignment"- means a quantity of sees, plants and plant products or any regulated article consigned from one party to other at any one time shipment and covered by a phytosanitary certificate, bill of entry of customs, shipping/airway bill or invoice;

(xi) "Inspection Authority" means an authority specified in Part I of Schedule XI or an officer of the Directorate of Plant Protection, Quarantine and Storage duly authorized by the Plant Protection Adviser for the purpose of approval and certification of Post-Entry Quarantine facilities and inspection of growing plants in such facilities in accordance with the guidelines issued by the Plant Protection Adviser and for any specified purpose, an authority specified in Part II of the said Schedule.

(xix) "phytosanitary certificate" means a certificate issued in the model format prescribed under the International Plant Protection Convention of the Food & Agriculture Organization and issued by an authorized officer at the country of origin of consignment or re- export;

(xxii) "Plant Protection Adviser" means the plant Protection Adviser to the Government of India, Directorate of Plant Protection, Quarantine and Storage;

3. Permits for Import of plants, plant products etc. (16) The Plant Protection Adviser or the officer authorized by him may, after inspection and laboratory testing, fumigation, irradiation, disinfection or disinfestation, as may be considered necessary by him, accord quarantine clearance for the entry of a consignment or grant provisional clearance for growing under post-entry quarantine, as the case may be in form PQ 16 and or order deportation or destruction of the consignment in form PQ17 in the event of non-

compliance with the restrictions and conditions specified in this Order.

18. It shall be the responsibility of the importer or his authorized agent.-

(i) to file an application for the quarantine inspection of imported seeds, plants and plant products or other regulated articles in the form PQ 15 along with copies of relevant documents and fees as prescribed under Schedule-IX payable by a demand draft to the competent authority

(ii) to provide information on any plant and plant product and other articles covered under this Order and which are imported by him / her or are in his / her possession, to Plant Protection Adviser or any officer duly authorised by him;

(iii) to bring the consignments to the concerned plant quarantine station or to place the inspection, fumigation or treatment as directed by Plant Protection Adviser or any officer duly authorised by him;

(iv) to permit drawing of appropriate samples for inspection and laboratory investigation and extend necessary facilities towards the same;

(v) to open, repack and load into or unload from the fumigation chamber and seal the consignment;

(vi) to remove them after inspection and treatment according to the directions issued by the Plant Protection Adviser or an officer authorized by him;

(vii) to arrange deportation or destruction of the consignment at the cost of importer as may be deemed necessary by Plant Protection Adviser or an officer 8 authorized by him.

11. As the sequence of facts show the transaction which is said to have been initiated upon issuance of proforma invoice by the consignee at the other country, Ivory Coast to the petitioner- company at Ranchi led to the transaction which comprises shipment of the consignment delivered at Nagpur. The consignment was delivered at Nagpur and was inspected by the competent authority under the Order of 2003 at Nagpur. Inspection and application made by the petitioner at Annexure-12 reflects that Phyto sanitaire certificate was in complete in certain respects i.e. it was not fulfilling the National Plant Protection Regulation, India and was lacking in the details such as the place of origin, botanical name of the commodity and place of issuance and fumigation details. All these acts of inspection, fumigation by the petitioner and request for relaxation was processed through the Office of Plant Protection Advisor, Nagpur and thereafter relaxation was sought from the Office of Plant Protection Advisor at Faridabad, Haryana. The decision relating to institution of F.I.R and return / diversion of the consignment were taken by the competent authority under the Department of Agriculture, Cooperation and Farmer Welfare, Govt. of India, New Delhi. The Office of Plant Protection Advisor is situate at Faridabad. The inspection of the consignment was carried out as aforesaid at Nagpur. Sub-clause 16 and 18 of clause 3 of Order 2003 provides for duties and responsibility of the Plant Protection Advisor and the responsibility of the importer or its authorized agent to file an application for quarantine inspection of such category of goods covered under the Order 2003 and also take the consignment for such inspection and treatment. In case where the consignment is not found confirming to the requirement of the Order 2003, it has to arrange deportation 9 or destruction of the consignment at the cost of importer as may be deemed necessary by Plant Protection Adviser or an officer authorized by him. The provision of clause 12 also indicate the remedy of appeal to the importer if aggrieved by the decision of the Inspection authority.

12. The conspectus of the entire facts leads to the impression that all acts relating to consignment, which were found to be carrying incomplete / invalid phyto sanitaire certificate were undertaken at Nagpur. The conditions, which were required to be satisfied under the Order of 2003 were all those which were related to the seat of Nagpur. In such circumstance, the opinion of the Apex Court rendered in the case of Adani Exports Ltd.(Supra) as relied upon by the respondents appear to apply on all four squares of the facts of the instant case also as it appears that except for the fact that petitioner's Head Office is situate at Ranchi and that proforma invoice came through email at the Head Office at Ranchi, petitioner's entire transactions relate to Nagpur. The order impugned has also been issued by the competent authority at New Delhi communicated to the Plant Protection Advisor, Faridabad.

13. In such circumstance, considering the ratio laid down in the case of Adani Exports Ltd.(supra) by the Hon'ble Supreme Court, this Court is of the view that cause of action, either in whole or part does not fall within the jurisdiction of this Court so as to entertain the writ petition in its present form. For better appreciation, the opinion of the Apex Court in the said case at para 15,16,17 and 19 are being reproduced hereinunder:-

"15. Article 226(2) of the Constitution of India which speaks of the territorial jurisdiction of the High Court reads:

"226. (2) 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, 10 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."

16. It is clear from the above constitutional provision that a High Court can exercise the jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises. This provision in the Constitution has come up for consideration in a number of cases before this Court. In this regard, it would suffice for us to refer to the observations of this Court in the case of Oil and Natural Gas Commission v. Utpal Kumar Basu (SCC at p. 713) wherein it was held:

"Under Article 226 a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. The expression 'cause of action' means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the court. Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial."

17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. If we apply this principle then we see that none of the facts pleaded in para 16 of the petition, in our opinion, falls into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad.

19. Mr Ashok Desai, however, pleaded that the respondents have executed a bank guarantee and a bond at Ahmedabad which in law the respondents are entitled to get cancelled through the intervention of the courts at Ahmedabad. This fact having been specifically pleaded in the application and a relief being sought for that purpose, would definitely give rise to a part of cause of action at Ahmedabad, but on behalf of the appellants, it is pointed out to us that the subject-matter 11 involved in the applications pertains to the denial of the benefit of the import-export scheme which ended w.e.f. 31-3-1997 while the bank guarantee and the bond in question were not part of the Passbook Scheme which is the subject-matter of the special civil applications with which we are concerned now. Execution of the bank guarantee was not with reference to the demand of the respondents to give it due credit in the passbook but the same was executed much later than 31-3-1997 in regard to certain disputes pending with the Customs Authorities in regard to the valuations made by the said Authorities as to the value of the export and import of prawn and its inputs. It was also pointed out that these Customs Authorities, as a matter of fact, are not even parties to these special civil applications. Thus, it is contended that the factum of the respondents having executed a bank guarantee and a bond at Ahmedabad will have no direct nexus or bearing on the disputes involved in these applications. It is pointed out to us by learned counsel for the appellants that in regard to the correctness of the valuation, separate proceedings have been initiated and against the findings in those proceedings, separate appeals are pending in this Court, therefore, the bank guarantee and the bond executed by the respondents, as a matter of fact, have nothing to do with the cause of action that may arise to challenge the denial of the benefit of the Passbook Scheme. Inclusion of this totally extraneous claim in the present writ petition cannot be construed as being a factor giving rise to a cause of action. In the case of ONGC this Court negatived the contentions advanced on behalf of the respondents therein that either the acquisition of knowledge made through media at a particular place or owning and having an office or property or residing at a particular place, receiving of a fax message at a particular place, receiving telephone calls and maintaining statements of accounts of business, printing of letterheads indicating branch offices of the firm, booking of orders from a particular place are not the factors which would give rise to either wholly or in part cause of action conferring territorial jurisdiction to courts. In the said case, this Court also held that the mere service of notice is also not a fact giving rise to a cause of action unless such notice is an integral part of the cause of action" .

14. The judgment relied upon by the petitioner rendered by the Apex Court in the case of Oswal Wollen Mills Ltd (supra) in support of their submission has also been considered in the case of Adani Exports Ltd.(supra) by the Hon'ble Supreme Court at Para 10 thereof. After perusal of the judgment rendered in the case of Oswal Wollen Mills Ltd.(supra), their Lordship were of the opinion that the judgment is no authority to decide as to the requirement of law in regard to establishing the territorial jurisdiction of the Court . Relevant paragraph of the judgment 12 rendered in the case of Oswal Wollen Mills Ltd.(supra) have also been quoted at para 10 of the said judgment.

15. In view of the findings recorded herein above on the plea of maintainability, the judgment rendered in the case of A.B.C. Laminart Pvt. Ltd. & another(supra) also does not apply to the facts of the present case. The question under consideration in the said case was relating to the exclusionary clause in the agreement entered into between the parties related to raising any dispute in a Court of Law where the Hon'ble Supreme Court expressed its opinion on the meaning of cause of action as contained in para 12 of the said judgment. The judgment rendered in the case of Adani Exports Ltd.(supra) therefore appears to be closely applicable to the facts of the present case. Reliance may also be placed upon the ratio rendered by the Apex Court in the case of Alchemist Ltd. v. State Bank of Sikkim reported in (2007) 11 SCC 335, para 37 thereof. Therefore, the plea of maintainability raised by the respondents succeeds.

16. The writ petition is dismissed on the ground of want of jurisdiction. The interim order dated 6.11.2015 stands vacated.

(Aparesh Kumar Singh, J.) A. Mohanty

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Jharkhand High Court