Bijoli Grill Aerated Water Company v. Union of India
1990-05-18
Anandamoy Bhattacharjee
body1990
DigiLaw.ai
ORDER 1. When the petition was moved on 1 J .5.90 with notice to the respondents, the latter raised a preliminary objection as to the jurisdiction of this Court• to entertain the petition as according to them neither the respondents are within the territorial jurisdiction of this Court nor the alleged cause of action can be said to have arisen, wholly or in part, within such jurisdiction. With the consent of the parties, the matter was directed to be placed for hearing on the question of jurisdiction on 16.5.90 and an interim order was passed to operate till that date. Rut on 16.5.90, the hearing could not be concluded and as the learned Counsel for the petitioners prayed for adjournment for a day on the ground of physical indisposition, the matter has come up to-day for hearing and order.' The interim order was also continued till to-day, 2. It is not, as it cannot be, disputed that even after the insertion' of clause (1A) by the Constitution Amendment Act of 1963, now re-numbered as clause (2), a Writ petition can not lie in any High Court unless (a) the authority against whom the Writ is sought is within the tetritorial jurisdiction of that Court or (b) at least a part of the cause of action has arisen within that jurisdiction. 3. It is obvious from the petition that all respondents, who really count, are outside the territorial jurisdiction of this Court, and only the respondent no. 6, a Private Limited Company, who, according to the averments in the petition in paragraph 49, has been appointed as an agent of the respondent no. 5, is within such jurisdiction. There is no averment in the petition as to the nature or constitution of this respondent no. 6 to show that this Private Limited Company can be regarded to be an instrumentality of State or is otherwise such an "authority" within the meaning of Article 12 against whom a writ can issue independently. It is also not disputed by the learned Counsel for the petitioner that if the writ petition fails against the other respondents, a writ against te respondent no. 6 alone, even if available, would be futile. 4. The question of jurisdiction, at this stage, is obviously to he determined on the basis of the allegations made in the writ petition.
It is also not disputed by the learned Counsel for the petitioner that if the writ petition fails against the other respondents, a writ against te respondent no. 6 alone, even if available, would be futile. 4. The question of jurisdiction, at this stage, is obviously to he determined on the basis of the allegations made in the writ petition. It is true that in paragraph 54 of the petition, an allegation has been made that "the records of this case are lying partly in New Delhi and partly within the jurisdiction of this Hon'ble Court". The averment is extremely vague as it has not been spelt out as to with whom or which authority the part of the records are lying and at which place within the State of West Bengal and whether any such records relate to the accrual of cause of action in this case or have any bearing thereon, 5. That apart, the question of the records of an inferior judicial or quasi-judicial tribunal may be relevant in a petition for a writ a Certiorari. But none of the respondents are such authorities against whom a Certiorari can issue, even if all the allegations in the petition are accepted, as they should he at this stage true mode et forma. And, as already stated, it is not at all averred in the petition as to which part of the records. if any, relevant to the cause of action for this petition, can lie or are lying in the State of West Bengal and that too, where and with which authority. 6. The learned Counsel for the respondents have placed strong reliance on a single-Judge decision of this court in Darshanlal Anand Prakash (1974 Calcutra Law Journal 27) and also on the Division Bench decision in Hindusthan Aluminium Corporation (AIR 1983 Calpltta 307), where the views in the former decision have been approved. It has been ruled by the Division Bench that "the effect felt of a place of business of the petitioners" as a result of the impugned action "is far too remote and incidental to constitute a cause of action" and that "there is a clear distinction between the effect being felt at a place of business and suffering of loss in the business by reason of" the impugned action. The respondents. no. 4 or no. 5 or no.
The respondents. no. 4 or no. 5 or no. 6 has not commenced their business on the strength of the impugned Letter of Intent and all that the petitioners aver in paragraph 5 of the petition are that if the Letter of Intent and the foreign collaboration on the strength thereof are not restrained, the petitioners "are apprehensive that if the respondent no. 5 loses the foreign brand name...................... then in that event the business of your petitioners would be highly Jeopardised and would suffer to a great extent". That, at its best, may be the effect which the petitioners may feel in his business, but, that on the materials at the present on record would be, as pointed by the Division Bench. "far too remote and incidental to constitute a cause of action". If the impugned actions are not otherwise illegal, the mere fact that the petitioners may have to feel the consequences of those actions in their place of business can not give rise to any cause of action. And none of the acts assailed as illegal by the petitioners, can be said or have been alleged to have taken place in West Bengal. 7. The views of the learned single-Judge in Darshanlal Anand Prakash (supra) and also of the Division Bench in Hindusthan Aluminium Corporation (supra) have also been fully endorsed by another Division Bench of this Court in Ananta Plasma Private Limited v. Union of India (unreported decided on 28th May. 1985). Another Division Bench in Ererest Coal Co. v. Coal Controller (90 Calcutta Weekly Notes 438) has also. After referring to and relying on Darshanlal Anand Prakash (supra) and Hindusthan Aluminium Corporation (supra), ruled that the consequence to give rise to the accrual of a cause of action must not be remote or indirect and as none of the two Orders impugned in that case could be shown to have any direct consequence upon the petitioner "at its office situated at Calcutta", it was held that no part of the cause of action arose within the Court's jurisdiction and that the writ petition filed was not maintainable.
To the case at hand also it could not be averred that any loss which the petitioners might suffer have any direct nexus with the actions of the respondents impugned in this case, and cannot be treated to be direct consequences emanating vis-a-vis the petitioners in the State of West Bengal from the actions of the respondents impugned in this petition and nothing can be said to have taken place within the jurisdiction of this Court to form integral part of the alleged cause of action for this petition. 8. Learned Counsel for the respondents have also referred to the decision of the Supreme Court in Swaika Properties (AIR 1985 SC J 289) where it has been ruled that once the acquisition of the properties in Rajasthan was complete in Rajasthan under the provisions of s. 52( 1) of the Rajasthan Urban Improvement Act, 1959 as a result of publication of the relevant notification in the Official Gazette, the mere sending of a notice thereof under s. 52(2) to the owners of the properties at Calcutta would not constitute an integral part of the cause of action so as to invest the High Court at Calcutta with jurisdiction to entertain a writ petition challenging the acquisition of the properties in Rajasthan and the decision of a learned Single Judge of this Court entertaining the writ petition and the interim order passhed thereon was quased. We are bound by the decision of the Supreme Court, not necessarily by the authority of its reasons, but by reason of its authority under Article 141 of the Constitution, and, even apart from the express mandate of that Article 141, because of its appellate jurisdiction over us and the precedent-oriented system in the hirearchy of Courts prevalent in our country. 9. But the two-Judge Bench of the Hon'ble Supreme Court in Swaika Properties (supra) chose to proceed further to admonish and censure this High Court as a whole and to "deeply regret" and' deprecate" (supra, at paragraphs 2 and 9) "the practice prevalent in the High Court of passing such interlocutory orders for the mere asking". Let the Hon'ble Judges of the Supreme Court overturn our decision or quash our order in a given case and criticise our judgments and orders while reversing or modifying them.
Let the Hon'ble Judges of the Supreme Court overturn our decision or quash our order in a given case and criticise our judgments and orders while reversing or modifying them. But to brand and condemn the High Court as one where the "practice prevalent" is to pass interim orders ''for the mere asking" is to bring that apex Court of the State, and thereby the Judiciary in that State, to obvious ridicule and contempt. It is one thing to overrule or reverse the decision of this Court in a given case as wrong and incorrect. But it is entirely a different thing, and probably a very dangerous thing to characterise the entire High Court of a State as a forum where an interim order is a matter for mere asking, implying thereby that this Court and the Judges thereof perform their function as a matter of easy insouciance and without any proper advertence, care and caution, This, in my view is apt to bring the whole administration of law and justice in that State into disrepute. In State of Uttar Pradesh v. Mohd, Naim ( AIR 1964 SC 708 )), the Supreme Court thought it fit to expunge certain remarks made by a learned Judge of the Allahabad High Court about the Indian Police Force and the unanimous four Judge Bench observed that "it is equally necessary that in expressing their opinions, Judges and Magistrates must be guided by considerations of justice, fair-play and restraint", and that "it is not infrequent that sweeping generalisations defeat the very purpose for-which they are made". The four-Judge Bench further observed that it has also been recognised that judicial pronouncements must be judicial in nature and should not normally depart from sobriety moderation and reserve. I have, as I should, great respect for the apex Court of our land but I think that I shall be failing in my duty if I do not place on record my sense of shock at the sweeping observations made by that Hon'ble Court about the High Court in Swaika Properties (supra) and also in Amalendu Das (AIR 1984 SC 553), referred to therein with unqualified approval. 10.
10. I must, however, make it clear that I am not required to decide, and must not be taken to have decided, as to whether there is any cause of action at all for the writ petition but only whether any cause of action can be said to have arisen, even in part, within the territorial jurisdiction of this Court and I only hold that no cause of action can be said to have so arisen within that territory on the averments made in the petition and the materials as on record at present. And all that I have said hereinbefore must be read and understood accordingly. 11. The writ petition is accordingly rejected, but solely on the ground that neither the concerned authorities are, nor any part of the cause of action has arisen, within the territorial jurisdiction of this Court. This however, shall not, as it obviously cannot prevent the petitioners from initiating any writ or other appropriate proceeding in any other court having jurisdiction in the matters. No costs. Application rejected on the ground of absence of jurisdiction of the Court