Calcutta High Court
Polar Pharma India Ltd. And Anr. vs Director General Of Foreign Trade And ... on 15 March, 2002
Equivalent citations: (2002)3CALLT51(HC), 2002(83)ECC594, 2002(143)ELT511(CAL)
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT Amitava Lala, J.
1. Under this writ petition, the petitioners basically challenged the notice being File No. 20/596/am-96/EPCGI 2532 dated 11th October, 2001 by which concerned office of the Director General of Foreign Trade (hereinafter called as DGFT), Government of India, Ministry of Commerce, Udyog Bhavan, New Delhi informed the company Noida at their office in Uttar Pradesh calling them to submit upto dated export statement for giving benefit of extension of export obligation period under public notice No. 3 dated 31st March, 2001.
2. The petitioner having its office at Noida, Uttar Pradesh submitted to the said DGFT at New Delhi by making a representation giving details of ground for export obligation period under the aforesaid public notice. Even similar appeal has been made by the Chemical and Allied Products Promotion Council to such DGFT at New Delhi.
3. The petitioners have invoked the writ jurisdiction of this Court by saying that they are carrying on business from their registered office at Balasore, Orissa but they are also carrying on business at and from their head office at 113, Park Street, Poddar Court, 8th Floor, Calcutta-700 016.
They received their earlier notice on 29th/31st August, 2001 from the aforesaid authority at their Calcutta Office. I also find that even reply of such notice was given from the office of the petitioners at Noida, Uttar Pradesh but not from Calcutta. It further appears that as against such public notice in question which was issued from New Delhi a bank guarantee was given by a Calcutta Bank in favour of Commissioner of Customs, Ministry of Finance, Government of India, New Delhi.
4. Here a preliminary point arose whether the writ jurisdiction of this Court can be invoked or not. The respondents contended that this Court has no territorial jurisdiction of the matter in question while the petitioners contended that part of the cause of action arose within the writ jurisdiction of this Court, hence as per Article 226(2) of the Constitution of India this Court can entertain try and determine the writ petition.
5. It is true to say that previously there was no concept known to the writ Courts about arising part of the cause of action unlike the suits having particular provision either in the letters patent or in the Code of Civil Procedure. Incorporation of the concept of part of the cause of action is a subsequent development.
6. According to Mr. Bhaskar Sen, learned senior counsel since the concept of part of the cause of action within a territory of a writ Court has been introduced similarly with the concept of the suits and other proceedings, this Court can apply the test herein. The cause of action is bundle of facts and from such bundle, an action was taken at New Delhi and communicated to Calcutta when upon being dissatisfied he was replied from Noida to New Delhi. But the petitioners either in the office of Calcutta or in the office of Balasore or in the office of Noida is aggrieved by the totality of the action taken by the respondents sitting at New Delhi. Therefore, there is a cause of action before this Court. He relied upon various judgments starting from (Lt Col. Khajoor Singh v. Union of India and Anr. etc.) till 1988(2) CLT 17 (Dharamsi Liladhar Bhora v. Municipal Corporation Rajkot and Ors.) to establish a unanimous stand taken by the Supreme Court and various High Courts that when a cause of action partially arose within the territorial jurisdiction of a writ Court, such jurisdiction can be invoked under Article 226(2) of the Constitution. He wanted to establish that if location of the person affected by order of the authority or the citus of cause of action is available in the jurisdiction, such Court will have power to pass appropriate order or orders ignoring place or functioning of Government. He relied upon the judgments (Damonal Kausomal Raisinghani v. Union of India and Ors.); (Serajuddin & Co. v. The State of Orissa and Ors.); (L.V. Veeri Chettiar and Anr. v. Sales Tax Officer, Bombay); (Anglo American Direct Tea Trading Co. Ltd. and Anr. v. State of Madras and Ors.); 86 CWN 348 (Umasankar Chatterjee v. Union of India and Ors.) and AIR 1987 Kerala 133 (K.C. Bhaskaran Nair v. Carona Shoe Co. Ltd. and Anr.).
7. I did not find any reason to deal with such judgments separately because of all the aforesaid judgments are similarly placed on the question of law. However, I am little bit anxious to deal with one judgment separately because of its speciality. In (supra) a Division Bench of Madras High Court held that the person primarily affected by the respondents issuing the notices from time to time to the petitioners and calling upon them to produce the accounts of their business carried on in the such state and again by proposing the assess them to the best of his judgment on the assumption of certain jurisdictional facts, is the address of such notice and such affixation relates to the bundle of facts in the totality of the lis or proceeding concerned and such impact necessarily gives rise to a cause of action though it may be in part. It is established that in fiscal laws a proposal to assess forms part and parcel of the machinery of assessment and thus understood the service of notice to assessee and calling upon to explain has given rise to a cause of action as is popularly and legally understood and the machinery of assessment has been set in motion and the impact of that motion is failed by the petitioners within the territorial limits of the State.
8. Mr. Sen argued on the strength of the aforesaid judgment that impact of all laws may not be the same or similar. The principle of criminal law cannot be applicable in respect of civil law likewise principle of fiscal law may not be applicable elsewhere. He has also stressed on paragraph 16 of another judgment reported in 86 CWN 348 (supra) to establish the observation of the Division Bench of the Calcutta High Court that assailing as to the right of a person is infringed or sought to be infringed there is no right of action. The circumstances forming the infringement of the right or the immediate occasion for action give the cause of action to the proper Court.
9. So far as the question of criminal law is concerned the Supreme Court held in (Navinchandra N. Majithia v. State of Maharashtra and Ors.) that mere filing FIR in some other province can not give territorial jurisdiction of that Court. There also the ration of the other judgments of the Supreme Court i.e. Oil and Natural Gal Corporation v. Utpal Kr. Basu and State of Rajasthan v. Swaika Properties were followed. Therefore the Supreme Court has not supported the wrong assumption on jurisdiction by the High Courts after having aforesaid two earlier judgments. On the otherhand Supreme Court discussed about the negative approach of such judgments. Had the writ petition being filed in such Court where FIR was lodged would have been wrong forum for the purpose of writ jurisdiction. In criminal case, cause of action will arise where offence was committed.
10. Mr. P.K. Ghosh, learned senior counsel appearing on behalf of the responsible contended that not only the issue has been considered recently by the Supreme Court in a reported judgment being (Union of India and Ors. v. Adani Exports Limited and Anr.). But this Court followed such ratio in an earlier judgment. It is important to note that even the Supreme Court in delivering the judgment taken note of the ratio of the judgment (supra).
11. According to me in order to confer jurisdiction of a High Court to entertain a writ petition, 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, arise within its jurisdiction. It is also clear that each and every fact pleaded in the 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 facts have an nexus or relevance with the lis. Facts which has no bearing with the lis or the dispute involved in the case or superfluous can not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. Incidentally I have taken note of a Division Bench judgment of the Calcutta High Court reported in 2001(1) CLJ 605 (M/s. East India TPT Agency India Ltd. and Anr. v. Union of India and Ors.) as cited by the respondent, where it was held that mere receipt of a notice does not create a cause of action for the purpose of invocation of writ jurisdiction.
12. I want to add that the cause of action cannot be predetermined or principally determined. The cause of action is variable state of affairs varied from case to case depending upon the fact situation. Sometimes, a piece of paper can form a part of the cause of action but some times a bundle of papers may not create a cause of action at all. A prior communication from the office of the respondent at New Delhi to the petitioners' Calcutta Office 'ipso facto' cannot create a cause of action for the purpose of invocation of the writ jurisdiction of this High Court. The communication dated 29th/ 31st August, 2001 cannot have any independent lis bearing cause of action unless it is merged with the subsequent lis occurred totally outside the jurisdiction of this Court. Hence, in totality I do not find any balancing factor which can create a part of the cause of action of the jurisdiction of this Court for its invocation.
13. Thus, this Court cannot entertain the writ petition. Accordingly, the same is dismissed. However, no order is passed as to costs. In any event this order will not debar the petitioners to invoke appropriate jurisdiction of this Court, if so advised. In such case the same will not be hit by the principles of Res Judicata or be barred by the law of limitation.
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