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1985 DIGILAW 440 (CAL)

Everest Coal Co Pvt Ltd v. Coal Controller

1985-12-24

MUKHERJEE, Shamsuddin Ahmed

body1985
JUDGMENT 1. THE appellants filed in this Court applications under Article 226 of the Constitution of India, inter alia, for declaration that Bihar Trade Article (Licenses Unification)Order, 1984 and Bihar Essential Commodities (price and display) Order, 1977 has no application to the business carried on by them and that the said Bihar Trade Article (Licenses Unification) Order 1984 was ultra vires and illegal. They also prayed for Writ of Mandamus commanding the State of Bihar and the Central Government to forthwith desist from applying and enforcing the provisions of the said Bihar Trade article (Licenses Unification) Order, 1984 and Bihar Essential Commodities (Price and Display) Order, 1977 and for commanding the Coal controller to direct the State and the Central Government not to enforce the provisions of the said two Orders. On 13th February, 1984, Padma Khastgir, J. exparte vacated adinterim orders and also dismissed the writ applications. Being aggrieved, there by, the appellants have preferred the instant appeals under clause 15 of the Letters Patent. 2. THE learned trial judge did not dismiss the writ application for default but had recorded her findings on merits of the writ application. Presumbly, through inadvertence the learned trial judge had recorded that the learned advocate appearing on behalf of the Railways was aggrieved because of the non service of the writ petitions or the copies of the interim' orders passed and that the interim orders have been obtained by suppression of material facts. None of the Railway Administrations were made respondents no interim orders have been made against them in the writ petition and, therefore there could be no occasion for service upon them of the writ petitions or interim orders. With respect, the learned trial judge was also not correct in observing that the writ petitioner were in respect of an Act which had already been repealed. The learned advocates for both parties have submitted before us that neither the Bihar trade Article. (Licenses Unification) Order, 1984 nor the Bihar essential Commodities (Price and Display) Order, 1977 which have been impugned in the writ applications have been repealed and they still remain in force. Therefore, the writ applications could not have been dismissed on the ground that they had become infructuous. A remand of the case to the trial court would have resulted in further delay; therefore, we heard on merits the writ petition. Therefore, the writ applications could not have been dismissed on the ground that they had become infructuous. A remand of the case to the trial court would have resulted in further delay; therefore, we heard on merits the writ petition. The respondents have submitted that no cause of action wholly or in part, arises within the territories in relation to which this High Court exercises its' jurisdiction under Article 226 of the Constitution of India. Therefore, the appellants cannot maintain in this court the writ petition challenging the vires of the Bihar Trade Articles (Licenses Unification) Order, 1984 and the Bihar Essential Commodities (Price and Display)Order, 1977 and their enforcement we are Of the view that at the stage the said question of maintainability ought to be determined. 3. BEFORE the insertion of clause (1a) in Article 226 of the Constitution by. 15th Amendment Act, the situs of the cause of action was immateial (vide Election Commission v. Saka Venkata 1953 S.C.R. 1145, Khajoor Singh v. Union of India A.I.R. 1961 S.C. 532, Collector of Customs v. East India Commercial co. A.I.R. 1963 1124 etc ). Since the insertion of clause (1a) (now re-numbered clause (2) of Article 226 of the Constitution of India) an application under Article 226 of the constitution may be also filed before the High Court within whose territorial jurisdiction the cause of action, wholly or in part, arises the expression cause of action has not been defined in the Constitution itself. In deciding whether or not the cause of action, wholly or in part, has arisen within the territorial limits of a particular High Court, the courts have generally attached to the said expression same meaning as under the Code of Civil Procedure 1908. Recently, in the case of state of Rajasthan v. M/s. Swaika Properties and Anr. A.I.R. 1985 S.C. 1289 the Supreme Court with approval quoted the following passage from Mulla's Code of Civil Procedure 1908 (Ed.) "the cause of action means every fact which traversed it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court". "the above passage was re-production in part of the formulation made by Brett, J. in his case of Cook v. Gill (1873) 8 C.P. 107, and 107, and as re-stated by Lord Esher, M. R., in the case of Reed v. Brown (1888) 22 Q.B.D. 128. "the above passage was re-production in part of the formulation made by Brett, J. in his case of Cook v. Gill (1873) 8 C.P. 107, and 107, and as re-stated by Lord Esher, M. R., in the case of Reed v. Brown (1888) 22 Q.B.D. 128. No exception perhaps can be taken to the summing up of the legal position made by mr. Dipankar Gupta, learned advocate for the appellants. Therefore, it is unnecessary for us to set out the various reported decisions cited at the Bar (1) All the facts and circumstances which give rise to right to obtain relief are parts of cause of action. In other words, cause of action means bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. "it does not compromise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved". (2) The concept cause off action has both a restricted and wider meaning. While in its restricted sense, cause of action includes facts constituting the infringement of the right, i.e. the cause which is the foundation of the suit. Cause of action for purpose of jurisdiction has wider import and it includes facts constituting the right itself (see the observations of S.R. Das, J. in the case of Madan Lal Jalan v. Madan Lal A.I.R. 1949 Cal. 495). (3) Consequence upon the plaintiff or injury caused to him would be essential parts of cause of action (vide 13 B.L.R. 91 (98), A.I.R. 1952 Cal. 645, A.I.R. 1947 cal. 296 etc) 4. THE question whether or not cause of action, wholly or in part, for filing a writ petition has arisen within the territorial limits of a particular High Court ought to be also decided in the light of nature and character of proceedings under Article 226 of the Constitution. Every High Court has jurisdiction to issue directions or orders or writs for enforcement of fundamental Rights and for 'any other purpose'. The pertinent question would be whether within the limits of the High Court in which a writ application has been filed, any of the facts which would entitle the petitioner to obtain relief under Article 226 of the Constitution has arisen. The pertinent question would be whether within the limits of the High Court in which a writ application has been filed, any of the facts which would entitle the petitioner to obtain relief under Article 226 of the Constitution has arisen. In other words, in order to maintain his writ application the petitioner has to establish that within the territorial limits of the court's jurisdiction prima facie a legal right claimed by him has been either infringed or is threatened to be infringed by the respondents. Such infringement may take place by causing him actual injury or threat thereof. Accordingly, when the impugned act of the respondents takes effect within the territorial jurisdiction of a particular High court, it may entertain the writ petition of the person aggrieved notwithstanding that the respondents have the offices or residences outside its territorial jurisdiction. An order has been made by an authority or person at a place beyond the territorial limits of a particular High Court but the same is given effect to against the petitioner within the said High Court's jurisdiction. In such a cause, at least a part of the cause of action arises, where the impugned order is implemented. 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 and Ors. AIR 1967 Bom. 355 , The State of maharashtra v. Sarvodaya Industries AIR 1975 Bom. 197 ). A Division Bench of this court in Umasankar v. Union of India 86 CWN 355 (para 18) held interalia 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 and Co. v. State of Orissa AIR 1971 Cal. 414 , where a notice revoking a lease of a mine in Orissa was served upon the petition at Calcutta ). Although the Division Bench in the case of Serajuddin and Co. v. State of Orissa AIR 1971 Cal. 414 , where a notice revoking a lease of a mine in Orissa was served upon the petition at Calcutta ). Although the Division Bench in the case of Serajuddin and Co. v. State of Orissa 71 CWN 61, on another point reversed the ultimate decision of A. K. Sen,' J., the Division bench did not over rule the learned trial Judge's finding about accrual of cause of action of notice upon the petitioner at calcutta. The Supreme Court in the case of State of Rajasthan v. M/s. Swaika Properties (supra), has pointed out that mere service of notice would not give rise to cause of action unless service of a notice was integral part of the cause of action. In other words, service of such notice must give occasion for filing the writ petition. For the purpose of accrual of cause of action for filing a writ petition, it is also necessary to make a distinction between actual or apprehended injury to the writ petitioner and indirect effect or remote consequences upon him. Obviously, for giving rise to cause of action for filing writ petition what is material is whether or not within the territorial limits of the said High Court, there has been any proximate or direct effect upon the petitioner. Indirect or remote result of the impugned acts of the respondents cannot be pleaded for establishing that cause of action, either whole or in part, had arisen within the territorial limits of a particular High Court. The cause of action, no doubt, has no relation whatsoever to the defence that may be set up and it refers entirely to the grounds set out in the plaint/petition as a cause of action or in other words to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour (Vide Mst. Chand Keor v. Partab Singh LR 15 IA 156). Chand Keor v. Partab Singh LR 15 IA 156). But at the same time if the facts pleaded in the plaint/petition themselves do not disclose that any part of the cause of action had arisen within its territorial limits the court would hold that the plaint/petition is not maintainable before it and would order its return for presentation in the proper court in the light of the legal principles of law set out above we may now proceed to consider the cause pleaded in the writ petition of the appellants. 5. THE subject-matters of challenge in the writ petition filed by the appellant are Bihar Trade Articles (Licensing and unification) Order, 1977 and the Bihar Essential articles (Display of Prices and Stocks) Order, 1984 made with prior concurrence of the Central Government by the Governor of Bihar in exercise of the powers conferred by section 3 read with section 5 of the Essential Commodities Act, 1955 read with the orders of the Government of India dated 25th October, 1972, 8th June, 1978 and 30th November, 1974. Except the Coal Controller, the offices of all other respondents are situated outside the territorial jurisdiction of this Court. The appellant claimed to be a private limited company and the owners of a set of bee-hive hard coke ovens situated in the District of Dhanbad, Bihar. In paragraph 82 of its writ petition the appellants averred that by reason of the facts set out therein, a part of the cause of action had arisen within the territorial jurisdiction of this court. Firstly, it has been claimed that coal is a central subject and at all material times all matters concerning coal were and still are being looked after by the Central Government through the Coal Controller having its office at 1, Council house street. It has been averred that effect of the Essential commodities Act in relation to coal used to be given by the central Government from the office of the Coal Controller at calcutta. 6. IN our view, the appellant has not even prima facie established that any part of its alleged cause of action in respect of the aforesaid two Orders made by the Governor of Bihar had arisen within the territorial limits of this Court. 6. IN our view, the appellant has not even prima facie established that any part of its alleged cause of action in respect of the aforesaid two Orders made by the Governor of Bihar had arisen within the territorial limits of this Court. Assuming there is substance in the claim of the appellant that there was repugnancy between the Colliery Control Order and the aforesaid two Orders made by the Governor of Bihar, same has arisen entirely within the State of Bihar where the two. Orders have been enforced and given effect Secondly, the appellant neither pleaded in its writ petition nor placed before us any provision of law under which the Coal Controller could direct the State government of Bihar or the Central Government not to enforce the provisions of the said two Orders. Therefore, by making the Coal Controller one of the respondents in its writ petition, the appellant cannot claim that any part of its alleged cause of action in respect of the said two Orders made by the Governor of Bihar had arisen within the territorial limits of this Court. The appellant in paragraph 82 of its writ petition has also claimed that it has a large number of consumers and purchasers in the State of West Bengal. The impugned Orders and notifications have seriously affected or are likely to further affect the business of the appellant with its consumers and purchasers in the State of West Bengal. According to the appellant, its registered office is situated at Calcutta and bulk of its sales are organised and effected from its registered office. As for example, sales' are booked and accepted at registered office. The appellant has also alleged that records of its business are maintained in its registered office at Calcutta from where its business is controlled by its Directors. 7. THE fact that the appellant company has its registered office at Calcutta by itself cannot give rise to any part of the cause of action within the jurisdiction of this court in respect of the aforesaid two Orders made by the Governor of bihar. Observations made by the Division Bench in the case of union of India v. Hindusthan Aluminium Corporation AIR 1983 cal. Observations made by the Division Bench in the case of union of India v. Hindusthan Aluminium Corporation AIR 1983 cal. 304 (314) go against the appellant's case that mere existence of its rgistered office or sales office at Calcutta would give rise to a cause of action for filing writ petition in this court against two Orders made by the Bihar Government and enforced within the State of Bihar. The Division Bench in the said reported case had inter alia held that the writ application to be maintainable because petitioner had averred that by reason of Government of India's price fixation of aluminium products it had suffered loss in its business at Calcutta where not only its sales office was situated but it held stock of aluminium products for sale. The Division Bench had further observed that if there had been either wholly or in part in Calcutta. Thus, in the said reported case the writ petition was entertained because the petitioner of the said case had come with a case that the impugned Orders of the Central Government had effected its business and sale of aluminium and aluminium products at calcutta. The Division Bench in the case of Union of India v. Hindusthan Aluminium Corporation (supra), had distinguished the decision of Sisir Kumar Mukherjee, J. in the case of Darshanlal anandprakash v. Collector of Customs 1974 CLJ 27, that effect felt at a place of business of the petitioner of the said case by reason of imposition of duty levied on tea produced in its tea garden at Assam was too remote and incidental to constitute a part of jurisdiction. While in Darshanlal Anandprakash's. case (supra), the impugned levy of customs duty was upon tea manufactured and produced at petitioner's tea garden in Assam, in Hindusthan Aluminium Corporation's case (supra), price fixation of aluminium directly affected company's right to sell aluminium and aluminium products held in stock at Calcutta. We are also in agreement with the view expressed by B. C. Ray, J. in Re bharat Sugar Mills Co. Ltd. AIR 1984 Cal. 102 (104). We are also in agreement with the view expressed by B. C. Ray, J. in Re bharat Sugar Mills Co. Ltd. AIR 1984 Cal. 102 (104). The learned Single Judge had approved unreported decision of one of us in Civil Rule No. 1398 (W) of 1975 and held that fixation of the price of levy sugar sold by sugar mills at Bihar did not give rise to any cause of action for filing a writ petition in this Court by reason that the company owning the sugar mill had its sales office at Calcutta. We accordingly hold that cause of action for filing the instant writ petition in this court did not arise merely because alleged effect was felt at the appellant's Calcutta Office of the two Orders made and enforced beyond the territorial jurisdiction of this Court. The correct test would be to find out whether by reason of the making of the two impugned Orders by the Bihar Government whether or not the appellant has or is likely to suffer any loss or injury within the teritorial limits of this court. 8. IN our view, no part of: the cause of action arises within the territorial limits of this Court by reason of making of the Bihar Essential Commodities (Price and Display) Order, 1977 and Bihar Trade Articles. (Licenses Unification) Order, 1984. In their application both the Orders do not extend beyond the territory of State of Bihar. We are unable to accept the submission of Mr. Pal, learned advocate for the appellant, that in the said two Bihar Orders the expression 'sale' has been used in its wider and composite meaning to include all the various ingredients or elements, i.e., (1) parties competent to contract, (2) permits of mutual assent, (3) transfer of property in the goods and (4) payment of price. Examination of the provisions of the two Orders made by the Governor of Bihar clearly indicate that they do not purport to put constraints upon entering into bargains or contracts for sale at any place outside the State of Bihar. Examination of the provisions of the two Orders made by the Governor of Bihar clearly indicate that they do not purport to put constraints upon entering into bargains or contracts for sale at any place outside the State of Bihar. The two Orders purport to impose restrictions upon transaction which result in passing of property within the State of Bihar, Thus, in the Bihar Essential Commodities (Price and Display) Order, 1977 meanings given to the expressions 'dealer' and 'price' indicate that the provisions of the said orders would be applicable at the place the articles mentioned in the Schedule to the said Order are kept for wholesale or retail sale and were on payment of price or promise to pay the dealer sales or parts with the possession any of the said articles. The provisions of the Order of 1977 regarding the display of stocks and price and sale would be attracted when the place of business of a dealer is situated within the territory of bihar. The said provisions obviously have no manner of application in case of sale of articles takes place beyond the territory of the State of Bihar. The same observations would be applicable regarding the area of operation of Bihar Trade Articles (Licenses Unification) Order, 1984. The said Order of 1984 interalia provides for licensing of dealers who carry on business for purposes of sale or storage for sale of the trade articles mention in Schedule-I. The Order also imposes restrictions reslating to prices and stocks of articles mentioned in Schedules I and II. The dealer is required to display the prices and stocks of articles. Retail-prices charged by him cannot exceed the prices displayed. They cannot sell at prices higher than the prices displayed. They are under obligation to give receipt by way of cash memo or bill for trade articles sold. There is also a restriction on the possession of trade articles exceeding the limits fixed under any Order of the Central Government or the State Government. The State Government also has a power of requisitioning stocks of trade articles. The dealer is also required to submit returns. Permits may also be issued for sale trade articles. 9. 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 petitioner at its office situated at Calcutta. The dealer is also required to submit returns. Permits may also be issued for sale trade articles. 9. 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 petitioner 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. The two Orders enjoined upon the dealers certain obligations in case of sale and storage for sale of the articles in question. Even if the allegations made in its writ petition, are correct the same would indicate that the appellant feels aggrieved or injured by reason of enforcement of the two Bihar Orders in relation to its coke oven plant at Dhanbad. In the result, we hold that the writ petition filed by the appellant did not disclose that the cause of action nor any part thereof had arisen for filing the same. 10. WE accordingly dismiss the appeal on the ground that; no part of the cause of action pleaded by the appellant petitioner has arisen within this Court's jurisdiction and, therefore, the writ petition filed by the the appellant is not maintainable in this Court. Let the writ petition be treated as withdrawn with liberty to file a fresh one in the court of competent jurisdiction. We express no opinion on the merits of the writ petitioner there will be no order as to costs. Let the operation of this order be stayed till the 15th february, 1986. Certified copy of this judgment, if applied for, be made over expeditiously.