Calcutta High Court
Ifb Automotive Seating And System Ltd. ... vs Union Of India (Uoi) on 16 May, 2002
Equivalent citations: AIR2003CAL80, AIR 2003 CALCUTTA 80, (2002) 4 CAL HN 501
Author: Asok Kumar Ganguly
Bench: Asok Kumar Ganguly
ORDER Asok Kumar Ganguly, J.
1. This matter was heard on a number of days on the question of territorial jurisdiction of this Court to entertain, try and determine the points involved in this writ petition.
2. Since the jurisdiction of this Court was invoked by the writ petitioner on the ground that the entire cause of action or at least a part of it has arisen within the territorial jurisdiction of this court, a few facts relevant to the said question may be noted, keeping in mind the principle that the question of territorial jurisdiction is to be decided on the facts pleaded in the writ petition.
3. The writ petitioner No. 1 is the holding company incorporated under the Companies Act and the petitioner No. 2 is another company. Petitioner No. 1 holds about 50.1% share capital of the petitioner No. 2 and the balance 49.9% of the share of the petitioner No. 2 is held by the respondent No. 3. The petitioner No. 2 is engaged, inter alia, in the manufacture and sale of automobile seat belts and systems,
4. On or about 16th September 1991, a joint venture agreement in writing was made between the petitioner No. 1 and the respondent No. 3. The said agreement was for manufacture of automotive safety system and other automotive products, components and assemblies. Approval to that agreement was granted by the Government of India and pursuant thereto the petitioner No. 2 was incorporated on 16-1-1992.
5. The petitioner No. 1 came to know in January 2001 that respondent No. 3, the joint venture partner of the petitioner No. 1, applied to respondent Nos. 1 and 2, the Central Government authorities, for approval to set up a 100% subsidiary in Delhi to manufacture steering wheels and airbags and the petitioner also came to know that such approvals were accorded by the Central Government on 11-5-2000 and 8-11-2000.
6. The petitioner No. 1, therefore, sent a letter dated 24-1-2001 to the respondent Nos. 1 and 2 and prayed for cancellation of such approvals on various grounds. After that the petitioner came to know that respondent No. 4 has been incorporated in india as a 100% subsidiary of the respondent No. 3 for setting up a unit for manufacturing steering wheels and airbags and a request was made to the Central Government to endorse its approvals in favour of the respondent No. 4.
7. The petitioners state that without giving them a hearing, by a letter dated 9-7-2001 received by the petitioner No.1 on 14-7-2001, the petitioner No.1 was informed that its request contained in the letter dated 24-1-2001, had been rejected.
8. The territorial jurisdiction of this Court has been invoked as the representation of the petitioner No. 1 was, as claimed by the learned Counsel of the petitioner, sent from Calcutta, the registered office of the petitioner No. 1. the representation was made by the petitioner No. 1 and not by the petitioner No. 2. In so far as the petitioner No. 1 is concerned admittedly its head office and factory is at Bangalore, branch office is at Nehru Place, New Delhi, and the registered office is at Taratolla, Calcutta.
9. In so far as the territorial jurisdiction of this Court is concerned, some averments have been made in para 31 of the writ petition. Those averments are to the following effect :
"The purported communication dated July 9, 2001 was received by the petitioners at 14, Taratolla Road, Calcutta - 700 088, within the jurisdiction of this Hon'ble Court and, as such, part of the cause of action has arisen within the jurisdiction of this Hon'ble Court. Further, part of the records of this case are lying within the jurisdiction of this Hon'ble Court. In such circumstances, this Hon'ble Court has the jurisdiction to entertain, try and determine the instant application."
10. From a reading of the averments in the aforesaid paragraph, two things emerge:
(a) The communication dated 9-7-2001 was received by the petitioner at 14, Taratolla Road, Calcutta - 700 088 within the territorial jurisdiction of this Hon'ble Court.
(b) Records of the case are lying within the jurisdiction of this Court,
11. So far as the second part of paragraph 31 is concerned, the learned counsel for the petitioner did not argue that aspect of the matter before this Court. The entire argument was based on the first part of paragraph 31.
12. The learned Counsel for the petitioner, while meeting the objections of lack of territorial jurisdiction taken by the Counsel on behalf of both the Union of india and the private respondents, urged that the respondents submitted to the jurisdiction and after submitting to the jurisdiction of this Court, the respondent cannot challenge the same. In support of this contention, the learned Counsel referred to order dated 3-9-2001, passed by this Court on this matter. On that date the learned Judge before whom the writ petition was filed refused to grant any interim order without giving the respondents any chance to file affidavits and gave directions for affidavits. However, the private respondent No. 3 did not appear on that date. On the next date i.e. 16-10-2001, respondent No. 3, appeared through Counsel and prayed for affidavit and direction was given. The learned Counsel submits that in between two days, i.e. 26-9-2001 and 8-10-2001, the Government-respondents appeared and prayed for extension of time to file affidavits. On all these dates, no question about the lack of territorial jurisdiction of this Court was raised by the learned counsel for the Central Government. The main grievance of the writ petitioner is against the Central Government. Since they submitted to the jurisdiction of this Court the present objection raised by them should be rejected by this Court. The learned Counsel also submitted that in their affidavit-in-opposition, the Central Government also did not raise the question of jurisdiction. Attention of this Court was drawn to para 15 of the affidavit-in-opposition filed by the Central Government in which para 31 of the writ petition has been dealt with.
13. It appears that the averments in para 15 are one of bare denial and there is no effective denial of para 31 of the writ petition.
14. The affidavit of the private respondents on this point was also placed before this court.
15. In para 3(a) and 3(b) of the affldavit-in-opposition filed by Vivek Mehra on behalf of the respondent Nos. 3 and 4, the following averments challenging the territorial jurisdiction of this Court has been made :
"3(a) I say that the respondents Nos. 1, 2 and 4 are having their offices in New Delhi and the respondent No. 3 is a non-resident company having its place of business in Stockholm, Sweden, outside India and as such on the fact of the writ petition this Hon'ble Court no jurisdiction to entertain and hear this writ application.
(b) The respondent Nos. 3 and 4 are private authorities against whom no writ application lies. The entire allegations are against the respondent Nos. 1 and 2 and the impugned application for the approval was made and the entire proceedings took place and all the records in respect thereof including the approvals are lying in New Delhi and the approvals were granted by the respondents No. 1 and/or 2 being Annexures--"P/4" and "P/5" and the order was passed by the Under Secretary to the Government of India being Annexure--"P/11" to the writ petition in New Delhi and as such the entire cause of action has arisen in New Delhi and no part of the cause of action has arisen in Calcutta far less within the original Side Jurisdiction of this Hon'ble Court. In view of the aforesaid this Hon'ble Court has no jurisdiction to entertain any try this writ application and/ or direct any Writs and /or Orders and/or Directions to be issued under Article 226 of the Constitution of India against any of the respondents."
16. The averments made in para 31 of the writ petition has also been dealt with in para 15 of the said affidavit of the private respondents as follows :
"With reference to the allegations contained in paragraph 31 of the said petition, I say that it is now well-settled law that mere communication of a letter does not confer any jurisdiction to this Hon'ble Court which this Hon'ble Court otherwise does not have inasmuch as all the respondents are outside the jurisdiction of this Hon'ble Court and the entire cause of action has arisen also outside the jurisdiction of this Hon'ble Court, In view of the aforesaid this Hon'ble Court has no Jurisdiction to entertain and try this writ application and the same should be dismissed on this ground alone."
17. The learned counsel for the petitioner submitted that the private respondent Nos, 3 and 4 are not necessary parties to this proceeding, they are merely private parties. So nothing much turns on their objection, The petitioner is aggrieved mainly by the action of the respondent Nos. 1 and 2 and they have not taken such objection in their affidavit-in-opposition. On the other hand, they have participated in the proceedings by asking time to file affidavits and as a result of such participation they cannot raise this question of lack of territorial jurisdiction of this Court at all. In support of this contention, the learned Counsel has also relied on certain decisions, which now this Court proposes to discuss.
18. Since this point raises a very vital aspect and if it is upheld, then the objection of the respondents on the question of territorial jurisdiction need not be gone into, this Court proposes to decide this question first.
19. Now coming to the cases cited on this point, this Court finds that the learned Counsel for the petitioner relied on the decision in the case of Hira Lal Patni v. Sri Kali Nath, . In that case, it was held by the Supreme Court that objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. The competence of a Court to try a cause goes to the very root of the Court's jurisdiction and where it is lacking it becomes a case of an inherent lack of jurisdiction. But an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition under Section 21 of the Civil Procedure Code. After laying down the said principle, the learned Judges held that when the plaintiff obtained leave from the Bombay High Court on its Original Side under Clause 12 of the Letters Patent and then filed a suit for recovery of certain amount due to him, the correctness of order granting the leave could be questioned by the defendant or the objection could be waived by him. These are the two courses open to defendant. Instead of doing that the defendant agreed to refer the matter to arbitration through Court. Once the defendant agreed to that, he would be deemed to have waived his objection to the territorial jurisdiction of the Court even though he had raised it in his written statement. So the defendant could not question the right or authority of the Court to refer the matter to arbitration and the defendant are equally estopped from challenging the authority of the arbitrator to render the award. Here the facts are totally different. The respondents have not taken any step on the merit of the proceeding. The respondents merely obtained directions from the Court to file affidavit and subsequently obtained the extension for time to file affidavit, So far as the private respondents are concerned they entered appearance and obtained direction for filing affidavit and thereafter filed affidavit in which they have specifically taken the point. Therefore, the conduct of the parties here is vastly different from the conduct of the defendant in the case of Hiralal Patni (supra). So the ratio of the Supreme Court relating to estoppel on the part of the defendant to question on the territorial jurisdiction of this Court cannot be applied here. The decision of the Supreme Court in Hiralal Patni's case depended on the, agreement of the defendant to refer the matter to arbitration through Court. Since the matter was referred to arbitration on the consent of the defendant, thereafter, it was not open to the defendant to challenge the territorial jurisdiction of this Court. This aspect of the matter has been clarified by the Supreme Court as follows :
"When he agreed to refer the matter to Arbitration through Court, he would be deemed to have waived his objection to the territorial jurisdiction of the court, raised by him in his written statement."
20. The next decision cited on this point by the learned Counsel for the petitioner is in the case of Bahrein petroleum Company Ltd.. v. P. J. Pappu, . In that judgment the learned Judges held that where a defendant allows the trial Court to proceed to deliver the judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, the defendant waives the objection and is not subsequently permitted to raise it. The learned Judges also held that long and continued participation of the defendant in the proceeding without any protest might in an appropriate case amount to waiver of objection. After laying down those principles the learned Judges held that in the facts of that case, there is no conduct of the defendants amounting to waiver or precluding them from raising the objection. From the facts of this case, it appears that the plaintiff was a clerk in the employment of Bahrein Petroleum Company Ltd. The contract of service was signed in Bombay and the zone of operation under the contract was outside India. The plaintiff instituted a suit for recovery of gratuity and arrears of salary against the company in the Court of Subordinate Judge of Cochin. The defendants applied to the Cochin Court to have said suit stayed under Section 34 of the Arbitration Act. Such prayer was refused and appeal against the said order was also dismissed. The revision petition to the High Court was also dismissed. In the mean time the Cochin Court passed an order declaring that the suit should proceed ex parte. Then on an application of the defendant the said order was set aside and the defendant filed a written statement on merit and also disputed the territorial jurisdiction of the Cochin Court. The Cochin Court held that it had no territorial jurisdiction to try the suit and returned the plaint. From that order the appeal was dismissed, and then on revision the High Court of Kerala held the defendants waived its objection as to the territorial jurisdiction of the trial Court and set aside the order of the Cochin Court and directed the Cochin Court to try the suit on merits. Then an appeal was filed by way of special leave to Hon'ble Supreme Court.
21. The Hon'ble Supreme Court found in the facts of that case that there is no conduct on the part of the defendants which amounts to waiver or which precludes them from raising the objection as to territorial jurisdiction. Therefore, the principles decided in the said case of Bahrein Petroleum Company (supra) directly go against the submission of the learned Counsel for the petitioner. In that case the objection as to jurisdiction was taken by the defendant in his written statement filed before the Court and the Court held that the same is permissible and the same is not a conduct which amounts to waiver. Here also the respondents asked for time to file affidavit and asked for extension of time and ultimately filed affidavit and the private defendants have specifically raised the question of lack of territorial jurisdiction of this Court. In so far as the Government respondents are concerned, they have of course, not taken the point specifically in their affidavits but they have urged this point before the Court at the very first instance when the matter was taken up for hearing after completion of affidavit. It cannot be said that either of the respondents have allowed the trial Court to proceed to deliver the judgment without raising any objection about the place of suing nor can it be said that there is long participation by them in the proceedings. It appears that this point relating to lack of territorial jurisdiction of this court has been taken by both the respondents at the threshold of hearing of the matter. Therefore, the ratio in the judgment of Bahrein Petroleum (supra) instead of supporting the case of the petitioner makes it clear that the respondents are entitled to raise the question of territorial jurisdiction.
22. Reliance on this question was also placed by the learned Counsel in the case of Sm. Nandarani Bose v. Ranchhoddas Muldas Ramanuj, . The question which cropped up in that case was that a money suit on the Original Side of the High Court was filed against the petitioners and an ex parte decree was obtained. Thereafter the decree was transferred by the High Court to Court of the Subordinate Judge for execution. The same led to the Money Execution Case No. 10/77. One of the objections was that the decree under execution was a nullity inasmuch as the High Court in its Original Side was. lacking the necessary territorial jurisdiction to entertain the money suit. This question was examined by the Division Bench of Calcutta High Court with reference to the various decisions of the Hon'ble Supreme Court including the decision in the case of Hiralal Patni (supra) and Bahrein Petroleum (supra). The Court held that an objection as to territorial jurisdiction can be waived and this has been statutorily recognised under Section 21 of the Civil Procedure Code. The Court also held that such objection can be waived independently of Section 21 of Civil Procedure Code. The principles decided by the Division Bench of Calcutta High Court in the case of Sm. Nandarani (supra) cannot be disputed but in that case, the question as to lack of territorial jurisdiction was raised at the stage of execution of the decree as such the principles of waiver were attracted. But here the objection as to lack of territorial jurisdiction has been taken at the threshold of hearing. The learned Counsel for the petitioner also relied on another judgment of Calcutta High Court rendered in the case of N. B. C. C. Ltd. v. Pattel Construction Co., reported in (1993) 97 Cal WN 462. In para 6 of the judgment the learned Judge held that long participation in the proceeding would be treated as acquiescence on the part of the party in the territorial jurisdiction of the Court. The facts of this case were that an arbitration proceeding culminated in an award dated 29th July 1983 and it was filed and gave rise to Title Suit No. 18 of 1983. In that case, after about more than hundred adjournments decree was passed and in the suit an application was filed. Under Order VI, Rule 17 of the Civil Procedure Code an application was filed seeking to introduce the objection of lack of territorial jurisdiction of the Court by way of amendment. The said application was rejected by the learned trial Judge and the order became final. There was another ap-
plication also under order VII Rule 10 read with Section 154 of Civil Procedure Code. But the said application was not disposed of and was directed to be heard along with the suit. In the background of these facts, the learned Judge observed that even though such an application was filed for rejection of plaint there was long participation in, the proceeding. Such long participation will be treated as acquiescence on the part of the party raising objection to the territorial jurisdiction of the Court on a technical aspect. Having regard to the total dissimilarity of facts between the case of N. B. C. C. and the facts of this Case, the decision in that particular case can have no application here. There-fore, this Court overrules the contention of the learned Counsel for the petitioner that the respondents are precluded from raising the question of territorial jurisdiction.
23. Apart from that Section 21 of C. P. C. also militates against the acceptance of the aforesaid contention. under Section 21 of C. P. C. it is clear that no objection as to place of suing shall be allowed by any appellate or revisional Court unless the same objection was taken in the Court of first instance at the earliest possible of opportunity and before the settlement of issues. Therefore, under the terms of the section, the following position is clear, (a) Normally objection as to place of suing should be taken at the Court of first instance at the earliest possible opportunity, (b) The outer limit of this earliest opportunity is the time before the issues are settled. The issues are settled by the Court under order XIV of the Code only after the pleadings are filed under Order VII and Order VIII. Here this Court is not concerned with a situation where such objection was taken before the Appellate and Revisional Court. In the instant case, the objection as to the place of suing was taken at the Court of first instance and at the earliest possible opportunity and much before the stage of actual hearing of the matter. In writ proceeding, there is no procedure for settlement of issues but at the threshold of hearing after the pleadings have been Piled these issues have been raised by the respondents. Therefore, the respondents are well within their right to raise the issue. The contention to the contrary raised by the learned counsel for the petitioner is thus overruled.
24. Now the Court has to consider the question whether the said objection has any merit. For examining this question, the Court has to consider the provision of Article 226 of the Constitution.
25. Under the Article 226(1) every High Court is empowered, within the territories in relation to which it exercises its jurisdiction to issue to any person or authority including any Government within those territories writs mentioned in the said article for enforcement of any of the rights conferred by part III of the Constitution or for any other purpose. This is the general scheme under Article 226 of the Constitution. Article 226(2) further extends this power by saying that this power can be exercised against any Government, authority, person by any High Court, in relation to territories within its jurisdiction if the cause of action wholly or in part arises, notwithstanding that the seat of such Government authority or residence of the person is not within those territories. In other words, under Article 226(2) of the Constitution, every High Court is empowered to issue writs or orders to authorities, Government or persons whose residence or seat is not included within the territories of the said High Court. But this is subject to one rider namely that this power can be exercised provided the cause of action for exercise of such power arises wholly or in part within the jurisdiction of the High Court issuing the order.
26. The learned counsel relied on the decision of the Hon'ble Supreme Court in the case of Lt. Col. Khajoor Singh v. Union of India, . That judgment was delivered after considering the provisions of Article 226 before its amendment. At that stage. Supreme Court refused to introduce the concept of cause of actipn in Article 226 of the Constitution of India.
27. In para 16 of the judgment the learned Judges held that 'Article 226 as it stands does not refer anywhere to accrual of the cause of action'. But, the minority judgment in that case delivered by Justice Subba Rao held differently and posed a question on which much reliance was placed by the learned counsel for the petitioners. Justice Subba Rao posed the question if a common man residing in Kanyakumari, the southern most part of India, is illegally de-
tained in prison or deprived of his property otherwise than by law, by an order of the Union Government, it would be travesty of fundamental right to expect him to come to New Delhi to seek protection of the High Court of Punjab (see page 541).
28. The learned Counsel submitted that after the said judgment, the Constitution of India was amended and under the present Article 226(2) the concept of cause of action has been expressly introduced.
29. The learned counsel for the petitioner relied on various judgments in order to show that different High Courts have entertained writ petitions in respect of orders issued from outside territorial limits of the High Court, in view of the fact that those orders materially affected the interest of the parties within its jurisdiction. On this point, the learned Counsel for the petitioner referred to the following judgments :
(a) Serajuddin & Co. v. State of Orissa, .
(b) Anglo American Direct Tea Trading Co. Ltd. v. State of Madras, .
(c) Umashankar Chatterjee v. Union of India, reported in (1982) 86 Cal WN 348 : (1982 Lab IC 1361).
(d) L. V. Veeri Chettiar v. Sales-tax, Bombay, .
(e) Damomal Kausomal Raisinghani v. Union of India, .
(f) D. L. Suresh Babu v. Institute of Chartered Accountants of India, .
(g) Balaji Vegetable Product (P) Ltd. v. Union of India, .
(h) Dharamsi Liladhar Vora v. Municipal Corporation, Rajkot, reported in (1988) 2 Cal LT (H.C.) 17 : (AIR 1989 NOC 170).
(i) Modern Food Industries India v. M. D. Juverkar, reported in (1988) 2 Serv. LR 659 : (1989 Lab IC 224) (Guj)
(j) Union of India v. Hindustan Aluminium Corporation, .
(k) Everest Coal Pvt. Ltd. v. Coal controller, reported in (1986) 90 Cal WN 438.
30. The learned counsel for the petitioner also relied on the following judgments in order to explain the concept of cause of action as judicially explained from time to time:
(1) Bimal Singh Kothari v. Muir Mills Co. Ltd. .
(2) Lal Chand Chowdhury v. Union of India .
(3) K. P. Govil v. Jawahar Lal Nehru Krishi Vishwa Vtdyalaya, Jabalpur, reported in 1987 Jab LJ 341 : (AIR 1987 Madh Pra 228) (FB).
31. The learned Counsel for both the parties relied on the following judgments of the Supreme Court :
(i) Union of India v. Oswal Woollen Mills, .
(ii) State of Rajasthan v. Swaika Properties, .
(iii) Oil & Natural Gas Commission v. Utpal Kumar Basu, reported in (1994) 4 SCC 71 : (1994 AIR SCW 3287).
(iv) Union of India v. Adani Exports Ltd. .
(v) Navinchandra N. Majithia v. State of Maharashtra, .
32. The learned counsel for the respondents urged that they have raised the question of lack of territorial jurisdiction of the Court at the very inception of the hearing so it cannot be said that they have submitted to the jurisdiction of the Court by filing affidavits. Therefore, it cannot be said that their right to raise the question of jurisdiction has been waived. Since this question has already been decided in favour of the respondents, no further discussion is necessary. The learned counsel for the respondents urged that in the instant case, no part of the cause of action has arisen within the territorial limits of this High Court and there is no averment in the writ petition that as a result of rejection of the petitioner's representation, the business of the petitioner will be affected in Calcutta. It was further stated that the communication dated 9-7-2001 issued by the Under Secretary to the Government of India, New Delhi is merely communication of information that the petitioner's request for cancellation of the approval is rejected. The request or representation made by the petitioner is not a statutory one. It is merely like a demand for justice made by the petitioner and the rejection of the same served on the petitioner's Registered Office at Calcutta is not a part of cause of action. It was also submitted that there is nothing on record to show that the said representation was made by the petitioner from Calcutta and the representation was made by the petitioner No. 1 and not by the petitioner No. 2. The petitioner No. 1 has its head office and factory in Bangalore, its Branch Office at New Delhi and the Registered Office at Calcutta. Seat belts are manufactured by the petitioner No. 2 and not by the petitioner No. 1 and no representation has been made by the petitioner No. 2.
33. Since, there is no specific averments in the writ petition as to the place form which the said representation was made, the Court cannot proceed on the mere oral submission of the learned counsel for the petitioner that the representation was made from Calcutta. The only averment on territorial jurisdiction made in para 31 of the writ petition is that the reply to the said representation was received in Calcutta.
34. So this Court finds from the averments in the writ petition that the jurisdiction of this Court for two reasons :
(a) The petitioners have the Regional Office in Calcutta and
(b) The rejection of the request by petitioner No. 1 was communicated to the petitioner No. 2 in Calcutta.
35. This Court is of the view that under Article 226(2) of the Constitution of India, before the Court decides to exercise its jurisdiction, it must be satisfied that the decision which has been served within its jurisdiction vitally affects the rights of the party and such decision forms an integral part of the cause of action of the party. It may be noted that though in the language of Article 226(2), there Is no mention of the part of cause of action being an integral one, but by way of judicial interpretation, the Hon'ble Supreme Court has added that expression to the concept of part of cause of action so that there is no abuse. Therefore, the order I which originated from outside the local limits of the High Court must materially affect the interest of the party concerned and the Hon'ble Division Bench of the Calcutta High Court also following the Hon'ble Supreme Court's judgment in the case of Swaika Properties (supra) held in Everest Coal Co. (1986 (90) Cal WN 438) (supra) that an order having a remote or indirect consequence upon the office of party situated in Calcutta, will not furnish a cause of action. It has been further held that unless an order imposes any liability or obligation at any place within the territorial limits of a Court, merely because the party feels the consequence of the order within the jurisdiction of the High Court, the same will not furnish a cause of action. (See para 13 of the judgment in Everest Coal Co.)
36. Now scanning the averments made in the writ petition, this Court finds that the petitioners are aggrieved by the orders of approval dated 11-5-2000 and 8-11-2000 given by the Central Government to the respondent No. 3 in respect of the foreign collaboration. Those approvals were given by the authorities whose office is in Delhi and were given in favour of the respondent No. 3 which has its office in Delhi. Those orders of approval were not served on or communicated to the petitioner at its Calcutta Office. The petitioners obtained the copies of those orders of approval from sources not disclosed in the writ petition. Therefore, those orders cannot be challenged before the Calcutta High Court. But it appears that the main ground of challenge in this writ petition is against those two orders. Para 2 of the writ petition contains the purported ground and reason for cancellation of those two approvals. Para 8 of the writ petition is directed against those two approvals and it has been averred that those approvals are in violation of Press Noted No. 18. Para 11 also impugns those two approvals as being devoid of reasons. Para 12 is also directed against those two approvals and it has been stated that those approvals have been given without hearing the petitioners and, as such, they are bad. The averments made in paras 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 have impugned those two approvals. Even though the averments are rather vague. In para 24, it has been specifically stated that those two approvals will cause irreparable damages to the petitioner's business and finance. But it has not been stated whether the damages will be caused in Calcutta. In para 27, it has been stated that the petitioner No. 2 will be vitally affected by the acts and conduct of the respondent Nos, 1 and 2 and it has also been stated that the wrongs done to the petitioner No. 2 should be redressed. It has been already noted that the petitioner No. 2 has not made any representation. Apart from that, it has not been stated whether the business interest of the petitioner will be affected by the impugned communication dated 9-7-2001. The only challenge in respect of communication dated 9-7-2001 is that the same was passed without hearing the petitioners and without considering all relevant materials.
37. It may be noted that the petitioner's representation against the grant of approval was not pursuant to any statutory provision. The same was merely by way of demand for justice before filing the writ petition. So one thing is clear that petitioners are aggrieved by grant of approval. Those orders of approval have taken effect even without the service of rejection order of the petitioners' representation. It is not the petitioner's case, as it obviously cannot be, that the orders of approval do not become effective until the rejection order of the petitioners' request to cancel the said approval has been communicated to the petitioners. The orders of approval became effective on their own and the pendency of the petitioners' representation against the order of approval does not make them Ineffective. Now whether those orders of approval are good or bad is a different question. But, one thing is clear that this Court has no territorial jurisdiction to entertain a writ petition in respect of those orders of approval. But that purpose is sought to be achieved indirectly through this writ petition by filing a mere non-statutory representation against those orders of approval even though those orders cannot be impugned within the territorial jurisdiction of this Court. If this is allowed, then against any order passed in any part of India petition can be moved before this Court by a party if it has an office in Calcutta and that party obtains a reply in Calcutta to a non statutory representation against such orders. Therefore, something which cannot be done directly Is sought to be done indirectly on the basis of a non-statutory representation. This is bordering on abuse. That is why the Hon'ble Apex Court while explaining the concept of 'part of cause of action' under Article 226(2) of the Constitution has added that the part must be an integral part of the cause of action.
38. NOW coming to the cases cited on behalf of the petitioners, this Court finds on a close examination of the principles decided in those cases that the ratio laid down therein does not support the contention advanced on behalf of the petitioner. The Court proposes to consider the cases one by one.
(a) In Serajuddin's case the Court was considering the impact of an order directing the petitioner to stop working a mining lease and to quite the possession of the area within 30 days failing which action was threatened to be taken. That order was served on the petitioner within the jurisdiction of this Court at p. 16. Bentinck Street, Calcutta-700 001.
The learned counsel for the respondent in Serajuddin submitted that this Court has no territorial jurisdiction to entertain the writ petition as the, offices of the respondent are located outside the territorial jurisdiction of this Court (see para 8) Rejecting those contentions, the learned Judge observed in para 9 as follows :
"Here in the present case it is not disputed by the respondents that all the effective orders including the impugned order dated September 22, 1967 has been served on the petitioner at its Calcutta address at P-16, Bentinck Street, Calcutta-1 and on such service a part of the cause of action arises within the territorial limits of this court so that by virtue of the amendment incorporated by Article 226(1A), this Court acquires jurisdiction to entertain a writ petition on such a dispute notwithstanding the fact that all the respondents are located beyond its jurisdiction."
It is obvious that the ratio in Serajuddin has no application to the facts of the case in hand inasmuch as in this case no effective order was served within the jurisdiction of this Court.
(b) In the decision of Anglo-American Tea , the facts were that the company, incorporated in England, with its principle business at Calcutta, wanting to transfer some of its assets from Tamil Nadu, sought for the permission of Reserve Bank. Such permission was obtained. Then the registering authority under the Stamp Act in Madras (presently Chennai) issued a notice to the petitioner in Calcutta questioning the market value of the properties. That notice was served on the petitioner at Netaji Subhas Road. In the background of those facts, the Counsel for the respondent faintly urged that the Calcutta High Court has no jurisdiction to entertain the writ petition as the office of the respondent is at Tamil Nadu (see para 19 of the judgment).
That faint argument was repelled, if I may say so with respect, rightly, by the learned Judge in para 20 of the judgment by observing :
"It cannot be disputed that the receipt of the impugned notice is an essential part of the case of action in this case. As such this submission on behalf of the respondents on the question of lack of jurisdiction must be rejected."
The factual difference between the present case and the facts in Anglo-American Tea is too obvious to deserve any further discussion.
(c) The decision in Uma Shankar Chatterjee (1982 Lab IC 1361) was rendered in a service matter and in respect of an order of dismissal.
It is well known that an order of dismissal from service takes effect only when it served. In the case of Uma Shankar, the order of dismissal though passed in New Delhi was served on the appellant in Calcutta. In view of those facts the learned Judges observed in para 18 of the judgment as follows :
"The impugned order of removal having become effective in Calcutta where it was received by the appellant, a part of the cause of action must be held to have arisen in Calcutta within the jurisdiction of this Court."
An order of dismissal from service passed under the relevant service rules after a quasi-judicial enquiry cannot be equated with an order of rejection of a request made on a representation which is not based on any statute or rule. The said representation is virtually a demand for justice made by the petitioner. Therefore, the ratio in Uma Sankar is clearly inapplicable.
(d) The decision in L. V. Veeri Chettiar (supra) was given considering the provisions of Bombay Sales Tax Act. Certain show cause notices of assessment and penalty proceedings were challenged in the writ petition. Those notices were issued from outside but were served on the petitioners in the State of Tamil Nadu (para 4). The objection of the respondent about the territorial jurisdiction of Madras High Court was dealt with by the Court in para 8. The learned Judges held that the assessment notices served on the parties asking them to produce accounts of their business and proposing to assess them according to best assessment judgment relate to such an important bundle of facts in the totality of the 'lis' that the same certainly gives rise to a cause of action in Tamil Nadu enabling Madras High Court to intervene.
Service of assessment notice under taxation laws stands on a totally different footing from the service of the communication dated 9-7-01. On the service of the said communication no cause of action of the petitioners' accrues which can be called a vital part of its alleged 'lis' with the respondents.
(e) In Damomal Kausomal (supra) the Division Bench of Bombay High Court was considering the validity of an order whereby the petitioner's claim of Rs. 4,710/- was reduced to Rs. 500/- under the provisions of Displaced Persons (Claims) Act 1950.
The objection about territorial jurisdiction of the High Court was discussed in para 5 of the judgment.
The Court found that the hearing in connection with the impugned order was held in Bombay. Even if the order was made in Delhi, the order was served on the petitioner at Ulias Nagar which is within the jurisdiction of the Court. After the service of the order, the follow up proceedings would also be taken by officers whose offices were within the jurisdiction of the Court.
(f) In D. L. Suresh Babu the petitioner staying in Bangalore challenged the order rejecting its nomination paper for election to the Central and Regional Councils of the Institute of Chartered Accountants of India which has its office in Delhi. Order of rejection passed in Delhi was served on the petitioner in Bangalore. That is why the Karnataka High Court entertained the writ petition. An order rejecting the nomination paper certainly furnishes a cause of action as it is vitally connected with a person's right to seek or contest the election. But the same is not true of the order dated 9-7-01.
(g) In M/s. Balaji Vegetable Products (P) Ltd. , also the order by the Central Government refusing to endorse the change in ownership of the industrial undertaking is an order which materially affects the working of the industrial undertaking. The Court found from the facts of that case that as a result of the impugned order the production of the Company is affected (para 6.6). But there is no averment in the body of the writ petition as a result of the order dated 9-7-01, the petitioner's business in Calcutta is affected. The petitioner's business, it has been pleaded, is affected by the orders of approval. But in so far those orders are concerned as discussed above, this Court has no Jurisdiction. So far as the order dated 9-7-01 is concerned, the same is merely a rejection of the petitioner's request on a non-statutory representation. The same is not an integral part of the 'lis' and its communication does not give rise to a cause of action.
(h) In Hindusthan Aluminium Corporation case , the Hon'ble Division Bench of Calcutta High Court held that this Court had territorial jurisdiction in view of the following facts recorded in para 24 of the judgment.
"HINDALCO has come with a case that in view of the impugned orders, it has been suffering loss in its business in the sale of aluminium and its products produced and manufactured by it in Calcutta where its principal office is situate. If there had been no allegation of incurring of any loss as a result of the impugned orders, we are afraid, there would not have given rise to any cause of action either wholly or in part, in Calcutta."
(Underlined by Court) The learned Judges further held in that para 24 as follows :
"In the writ petition, there has been a categorical averment of the suffering of loss by HINDALCO by the sale of aluminium and aluminium products in Calcutta. We are now not concerned with the truth or otherwise of the allegation as the question of jurisdiction is to be determined on the basis of the allegations made in the writ petition. If there was no such allegation of any loss suffered by HINDALCO in Calcutta, the High Court would not entertain the writ petition, however illegal the impugned orders may be."
(Underlined by Court) Here there is no pleading in the body of the petition that as a result of the order dated 9-7-01, communicated to the petitioners in Calcutta, the petitioners are suffering any loss in its business in Calcutta. So going by the ratio in Hindustan Aluminium, this Court is bound to hold that it has no territorial jurisdiction to entertain the writ petition.
(i) In the case of Modern Food Industries (1989 Lab IC 224) (supra) the Gujarat High Court was considering its territorial jurisdiction to intervene in the context of communication of an order of termination and notice pay on the employee at Ahmedabad which was within its local limits. The Division Bench held that as a result of such communication, the consequences of the order fell on the employee and its furnishes a cause to the employee to more the Gujarat High Court. This logic is akin to the one followed in Uma Shankar (supra) and is well known in service jurisprudence. But the facts in the case in hand are totally different.
(j) In the case of Everest Coal (1986 (90) Cal WN 438) (supra), Hon'ble Mr. Justice Chittatosh Mookherjee (as His Lordship then was) speaking for the Division Bench summarised the principles very succinctly. In the present case, territorial jurisdiction is sought to be invoked on the communication of the order dated 9-7-01 on the registered office of the petitioners in Calcutta. But the Division Bench held that service of any and every communication does not give rise to a cause of action. On a review of the case laws, this has been made clear in para 5, page 443 of the report as follows :
"Thus, when an order becomes effective only when it is communicated or served, the service of the order or receipt of a notice thereof would form part of cause of action for filing a writ petition by the person aggrieved thereby (vide Damomal kausomal Raisinghani v. Union of India, ; State of Maharashtra v. Sarvodaya Industries, ). A Division Bench of this Court in Umashankar v. Union of India, (1982) 86 Cal WN 348 (355) (para 18) : (1982 Lab IC 1361) held inter alia that an order of dismissal had become effective only when the same was served at Calcutta and therefore, this Court had jurisdiction to entertain the writ petition (see the decision of a K. Sen, J. in the case of Serajuddin & Co. v. State of Orissa, , where a notice revoking a lease of a mine in Orissa was served upon the petition at Calcutta)."
Here it is no body's case that the communication dated 9-7-01 does not take effect unless it is served. The same is merely a communication on the petitioner's non-statutory representation. It is merely a communication of some information.
The learned Judge by referring to the decision of the Supreme Court in Swaika Properties , which will be discussed later, made it further clear by holding that "mere service of notice would not give rise to a cause of action unless service of a notice was integral part of the cause of action".
The learned Judge in para 10 of the judgment also made it clear that mere existence of a registered office in Calcutta would not give rise to a cause of action within the jurisdiction of Calcutta High Court.
The learned Judges in para 13 of the judgment made it clear that any remote or indirect consequence on the petitioner's, office at Calcutta will not furnish a cause of action. The relevant portion from para 13 is set out below :
"Thus, even the allegations made in the writ petition filed by the appellant are true, they indicate that there may be remote or indirect consequence upon the petitioper at its office situated at Calcutta. Neither of the two orders impose upon the appellant any liability or obligation to be discharged or performed at any place within the territorial limits of this Court. Merely because the appellant feels the consequence at its Calcutta office of the enforcement of the aforesaid two Bihar Orders, same is neither proximate nor direct in nature.";................
............."We hold that the writ petition filed by the appellant did not disclosed that the cause of action nor any part thereof had arisen for tiling the same."
On the expression cause of action the learned counsel for the petitioner cited a few decisions. The learned counsel first relied on the decision of the Division Bench of the Calcutta High Court in Bimal Singh Kothari (supra). In para 31 of the judgment the learned Judges accepted the formulation made by Chief Justice Rankin in Engineering Supplies Ltd. v. Dhandhania and Co., . Those observations of Chief Justice Rankin is set out below :
The only definition that will work, if it has to be applied to cases of all kinds, is the entire set of facts that gives rise to an enforceable claim, or in the words of Fry L.J., 'everything which if not proved gives the defendant an immediate right to judgment'; every fact which is material to be proved to entitle the plaintiff to succeed, every fact, which the defendant could have a right to traverse."
One thing is clear from the observation of Chief Justice Rankin that the fact in question must be a material fact.
The learned counsel also relied on the decision in the matter of Lal Chand Chowdhury (supra). In para 24 of the judgment the learned Judge after referring to the observation of Chief Justice Rankin, also quoted the observation of Justice Fry to the following effect :
"Every thing which if not proved gives the defendant on immediate right to judgment. Every part which is material to be proved to entitle the plaintiff to succeed, every part which the defendant could have a right to traverse."
The learned Judge, however, held that a notice under Section 80 of the CPC is a part of the cause of action.
The learned counsel also relied on the Full Bench decision in the case of K. P. Govil (AIR 1989 Madh Pra 228) (supra) where the expression cause of action in the context of Article 226 was explained. The learned Judge relied on the observation of Justice H. M. Beg (as His Lordship then was) in the case of Gurdit Singh v. Munsha Singh, . Those observations are set out hereinbelow:
"The expression 'cause of action' has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either infringement or basis of a right and no more. In a wider and a more comprehensive sense, it has been used to denote the whole bundle of material facts which a plaintiff must prove in order to succeed. These all are those essential facts without the proof of which the plaintiff must fail in the suit."
It may be noted in this connection that the judgment of Justice Beg in Gurdeep Singh was a dissenting judgment and a dis-sentingjudgment is not the judgment of the Court.
It goes without saying that a dissenting judgment does not have the character of a binding precedent and is not to be followed by the Court.
This Court also finds that the judgment of the learned single Judge in Lal Chand Chowdhury (supra) that notice under Section 80 of the CPC furnishes a cause of action is contrary to judgment of the Division Bench of Calcutta High Court in Niranjan Agrawalla . Justice P. B. Mukharji (as His Lordship then was) speaking for the Court held that a notice under Section 80 is not a part of the plaintiff's cause of action even though it may be a condition precedent for filing a suit.
39. On the principle of cause of action in the context of Article 226 proceeding this Court proposes to follow the ratio of the Division Bench judgment in Everest Coal (1986 (90) Cal WN 438) (supra).
40. Now the Court proposes to discuss the principles rendered in five Supreme Court judgments on which counsel of both the parties relied. The first in this series is the one rendered in the case of Oswal Woollen Mill .
(1) Oswal Woollen Mill had its registered office at Ludhiana and a branch office at Calcutta, The writ petition was filed before Calcutta High Court seeking reliefs against authorities mostly in Delhi and Amritsar. In the background of these facts the Court observed in para 2 that "one would have expected the writ petition to be filed either in the High Court of Punjab and Haryana or in Delhi High Court" but Instead of that the writ petition was filed in Calcutta High Court because of a consignment having arrived in Calcutta Port.
The question of territorial jurisdiction in that case was not considered with reference to Article 226(2) of the Constitution or with reference to accrual of a part of cause of action. The Apex Court in that case expressed its concern about the High Court's lack of circumspection in granting ex parte interim order and the various manoeuvres usually employed by the petitioner to prolong the life of an interim order and delay the final hearing. The Court was also considering the inconvenience of the respondents to fight a legal battle in Calcutta when its offices and records are at Delhi.
In that context, those observations have been made, Those observations cannot be treated as an authority for the proposition that if a party has a registered office in a place, it can validly institute a proceeding in that place in all situations regardless of the question whether cause of action either wholly or in part accrued there.
A judgment of a Court cannot be read "Euclid's theorems or as provisions of Statute" this has been repeatedly clarified by Supreme Court and again recently in the case of Haryana Financial Corporation v. Jagadamba Oil Mills, reported in 2002 (1) SCC 404 (sic). So this Court cannot agree with the interpretation of the judgment of Oswal Woollen Mill given by the learned Counsel for the petitioner. Subsequently, Supreme Court in Adani Exports (supra) also expressed the same view.
(ii) In the case of Swaika Properties (supra) the registered office of Swaika properties was in Calcutta and a notice under Section 52(2) of Rajasthan Urban Improvement Act 1959 (hereinafter referred to as the Act) was served on that office. But the Apex Court held that service of such notice does not furnish a cause of action within the territorial limits of this Court.
The facts were that Swaika Properties owned land in the Jaipur City in Rajasthan. Notice of acquisition under Section 52(2) of the Act was issued by the Town Planning Department, Jaipur. Pursuant to that notice petitioners appeared before the Special Officer, Town Planning Department, Jaipur and objected to the acquisition and participated in the proceeding. Then the petitioners also applied to the State Government seeking exemption of the land from acquisition. But the State Government did not agree and issued the notification dated 8-2-1984 under Section 52(1) of the Act and notified the land which thus vested in the State free from all encumbrances.
In the background of these facts, the Supreme Court held in para 8, page 1292 of the report as follows :
"The mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road. Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action."
Following the same ratio, this Court holds that mere service in Calcutta of the communication dated 9-7-2001, not under any statutory provision, does not give rise to any integral part of cause of action of the petitioners inasmuch as all proceedings about the orders of approval took outside the limits of this Hon'ble Court.
(iii) In the ONGC case (supra) also NICCO, the petitioner before Calcutta High Court had its registered office in Calcutta and in the writ petition it was averred that if contract is not awarded in their favour the writ petitioner would suffer loss at its registered office at Calcutta within the jurisdiction of this Court. The learned Judges of the Supreme Court considered paras 5, 7. 18. 22 and 26 of the writ petition. From those paras it appears that (1) NICCO came to know of the tender from the Publication of Times of India in Calcutta. (2) It submitted the Tender from Calcutta. (3) It submitted its revised price from Calcutta. (4) It made demand for justice to different authorities from Calcutta. It also appears that ONGC in answer to NICCO's demand for justice gave reply by fax message dated 15-1-1993. Even considering the said reply of ONGC and those averments in the writ petition, the Supreme Court held that the same would not constitute an integral part of the petitioners' cause of action within the territorial limits of Calcutta High Court. This has been made clear in para 8, page 719 (of SCC) : (at p. 3293 of AIR SCW) of the report which I quote :
"Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages form Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action."
(iv) In Adani Exports (supra), the Supreme Court clarified that in Oswal Woollen (supra) the question of territorial jurisdiction in the sense with reference to Article 226(2) was not considered at all and the said judgment is not an authority for that proposition (paras 10 & 11).
In Adani Exports (supra) the learned Judges in para 13 set out the facts pleaded by the petitioner to give rise to cause of action conferring territorial jurisdiction on the Court at Ahmedabad. One of the facts pleaded is that non-granting and denial utilization of the credit in the pass book will affect the business of the respondents at Ahmedabad. This fact is not pleaded in the case in hand.
Even then the learned Judges held that those facts are not sufficient to furnish a cause of action as they are not connected with the relief sought for by the respondents.
Here also the relief is against the orders of approval and this High Court has no territorial jurisdiction to grant that relief. Therefore, the communication to the effect that the petitioners' representation against orders of approval is rejected is of no consequence.
The Supreme Court, further dealing the concept of Article 226(2) and relying on the decision of ONGC (1994 AIR SCW 3287), explained the concept of cause of action in para 17 at page 130 of the report and the relevant extracts wherefrom are excerpted below :
"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 Us 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."
(Underlined by Court) The learned Judges also held in para 18 as follows :
"The non-granting and denial of credit in the passbook having an ultimate effect, if any, on the business of the respondents at Ahmedabad would not also, in our opinion, give rise to any such cause of action to a Court at Ahmedabad to adjudicate on the actions complained against the appellants."
(v) In Navinchandra N. Majithia (supra) the Supreme Court accepted that after the amendment of Article 226 by insertion of Article 226(2) the 'width of the area for reaching the writs issued by different High Courts' has been widened. There can be no dispute with that proposition. But while exercising such wide jurisdiction the Court must carefully scrutinize the facts pleaded to find out whether the cause of action at all arises within its territorial limits. The Apex Court in Majithia expressly follows the ratio in ONGC case (1994 AIR SCW 3287).
If for any "trivial" incident, "unconnected with the cause of action" the Court starts interfering that will be an abuse. At the same time that will "lower the dignity of the institution and put the entire system to ridicule". This caution sounded in ONGC was repeated in Majithia. This Court is also of the view that the wider the jurisdiction, the greater should be the caution of the Court for its valid exercise.
41. Therefore, on an analysis of the facts of the case, and for the reasons discussed above this Court is of the opinion that no part of cause of action of the writ petitioners arose within the territorial jurisdiction of this Court. The objection taken by the respondents on that count succeeds. The writ petition fails and is dismissed.
42. This Court, however, makes it clear that it has not considered the controversy raised in the writ petition on merits. If the petitioners are so advised they are at liberty to approach the appropriate forum in respect of the grievances raised in the writ petition.
43. There will be, however, no order as to costs.
Xerox certified copy of this judgment and order be given to the parties expeditiously, if applied for.