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1991 DIGILAW 1541 (ALL)

Persion Carpets and Rugs Industries v. Union of India (UOI)

1991-12-19

R.A.SHARMA, V.K.KHANNA

body1991
JUDGMENT : R.A. Sharma, J. Petitioner claims to be a partnership firm manufacturing woolen carpets and druggets It is stated that the Petitioner was given an import licence by the Government of India on 14-12-1989 and in this connection Petitioner has executed a legal agreement on 24-1-1990, which was accepted by the Government of India on 21-2-1990. It is averred by the Petitioner that it has placed some orders for purchase and import of dyes and Sodium Sulphoxylate Formadehyde from Tianjin Chemicals Import and Export Corporation China, and had also purchased 1475 Kms. Acid Chrome pur Blue-B. The cost of the aforesaid goods comes to Rs. 1,31,520.00 and Rs. 4,32.000/- in Indian currency. It is also alleged that in connection with the import, Petitioner handed over all the original documents in respect of the aforesaid goods to its shipping agents for getting clearance from the custom and the Port of Bombay authorities. The Petitioner further claims that it received letter on 20-4-1991 from the shipping agents to the effect that Marine and Preventive Department inspected the godowns of the shipping agents on 15-4-1991 and had taken away the documents due to which the clearance of the goods is to be delayed till the documents are released, on account of which the demurrage charges of the Port Trust will go up. The Petitioner has accordingly filed this writ petition with the following reliefs: (a) to issue writ of mandamus commanding the Respondent No. 1 and/or its Marine and Custom Department its officers or employees to return the documents of the Petitioner's firm in respect of the imported goods which they have taken away from the custody of New Brights Shipping Services forthwith; (b) to issue a writ of mandamus commanding Respondent No. 1 and its warehouse agents Respondent No. 5 not to refer the matter to Port Trust and to deliver the goods of the Petitioners forthwith without creating any hindrance in its deliver after taking necessary charges etc.; (c) to issue any other writ order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case; (d) to award the cost of the petition to the Petitioner. 2. In the writ petition the following persons/authorities have been impleaded as Respondents: 1. The Union of India. 2. Chairman Port Trust, Bombay. 3. Custom Officer, Bombay. 4. 2. In the writ petition the following persons/authorities have been impleaded as Respondents: 1. The Union of India. 2. Chairman Port Trust, Bombay. 3. Custom Officer, Bombay. 4. M/s. S.D. Shipping Services, 82/86 Bazar Gate Street, Narayan Bhavan, 1st Floor, Room No. 103, Fort. Bombay-400001. 5. M/s. James Machintosh and Co. Pvt. Ltd, Post Box No. 123, S.B. Marg, Ballard Estate Bombay. 6. New Bright Shipping Services, 82/86 Bazar Gate Street, Narayan Bhavan, 1st Floor, Room No. 103, Fort, Bombay-400001. This writ petition was filed on 28-5-1991 and on 29-5-1991 this Court passed the interim order staying the auction of the goods imported by the Petitioner. During the pendency of the writ petition the Petitioner has filed an application dated 19-9-1991 for permission to implead the Superintendent of Customs, Central Intelligence Unit. Marine Preventive Wing Bombay as Respondent No. 7. The Petitioner has also made another application dated 19-9-1991 for release of consignments of the goods imported by him details of which have been given in that application. 3. In our opinion, this writ petition is not maintainable before this Court. The goods imported by the Petitioner and the documents relating thereto have been detained and seized at Bombay by the Custom and the Marine and preventive Department of Bombay. All the persons and authorities whose acts have been impugned and who have been impleaded as Respondents in this writ petition are of Bombay. The whole cause of action relating to the seizure and detention of the goods and the documents in connection therewith had arisen in Bombay and no part of the cause of action arose in this State. This Court, as such, has no jurisdiction to grant any relief in this writ petition to the Petitioner. 4. Learned Counsel for the Petitioner in this connection had made two submissions namely, (i) notice has been served on the Petitioner at Varanasi, which is a part of the cause of action and for this reason the writ petition is maintainable before this Court, and (ii) as the agreement between the Government of India and the Petitioner in connection with the import had been executed at Varanasi, which is within the State of U.P. the Petitioner can file this writ petition before this Court. It is not possible to agree with the learned Counsel. 5. It is not possible to agree with the learned Counsel. 5. It is true that this Court will have jurisdiction to entertain the writ petition even if a part of cause of action has arisen in the State of U.P. But neither the place of service of notice nor the place of residence of the Petitioner can give rise to a cause of action unless the service of the notice or the residence are integral part of the cause of action. The Supreme Court in the case of State of Rajasthan and Others Vs. Swaika Properties and Another, (1985) 3 SCC 217 , while considering the question relating to the territorial jurisdiction of the High Court for entertaining the writ petition has laid down that mere service of notice on a person within the territorial limit of a State could not give rise to a cause of action within that territory unless, service of such a notice was an integral part of cause of action and the question whether service of notice is integral part of cause of action within the meaning of Article 226(2) of the Constitution of India depends on the nature of the impugned order. The relevant extract from the said decision of the Supreme Court is reproduced below: The expression 'cause of action' is tersely defined in Mulla's Code of Civil Procedure: The 'cause of action' means every fact which, if traversed, it would be necessary for the Plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the Jaw applicable to them gives the Plaintiff a right to relief against the Defendant, the mere service of notice u/s 52(2) of the Act on the Respondents at their registered office at 18-B, Brabourne Road, Calcutta, 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 cluminating in the acquisition of the land u/s 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 entire cause of action cluminating in the acquisition of the land u/s 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 The notification dated February 8, 1984 issued by the State Government u/s 52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the Respondents to plead the service of notice on them by the Special Officer, Town Planning Department, Jaipur u/s 52(2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government u/s 52(1) of the Act. Following the aforesaid decision of the Supreme Court a Division Bench of this Court in Daya Shanker Bhardwaj Vs. Chief of the Air Staff, New Delhi and Others, AIR 1988 All 36 , has also laid down that service of notice on the aggrieved person and the place of his residence does not confer jurisdiction on the High Court within whose jurisdiction the notice has been served and the person is residing, to entertain a writ petition against an authority situated outside the State of that High Court. This Court has further laid down that even the concept of order taking effect in a State does not entitle the High Court of that State to entertain the writ petition. The relevant passage from the judgment is reproduced below: Residence or location of office of person or authority against whom relief is sought is a part of cause of action. But residence of Petitioner in a writ petition or Plaintiff in a suit unless specifically provided is immaterial. In Khajoor Singh's case (supra) two restrictions were placed on High Court power to entertain a writ petition one that the authority or government whose order was assailed or impugned or against whom directions were sought should not be situated beyond territorial limits of High Court. In Khajoor Singh's case (supra) two restrictions were placed on High Court power to entertain a writ petition one that the authority or government whose order was assailed or impugned or against whom directions were sought should not be situated beyond territorial limits of High Court. It was reiteration of principle in Election Commission and Rashid's cases (supra). The other restriction or limitation was that the concept of order having effect did not determine the jurisdiction of High Court. When Clause (1A) was added in 1963 the jurisdiction was extended so as to bring in its fold even those actions which took place inside the State by introducing the concept of cause of action. That is the difficulty pointed out by Supreme Court in various decisions because of language of article being plain to entertain a petition against an authority situated outside State stood removed if the cause of action wholly or in part arises in the State. But it does not directly or indirectly empower a High Court to issue writ or direction because the order impugned or action taken against Petitioner was to have effect in the State. That is the second limitation on the power of High Court to entertain an petition remained untouched. A right of action arises as soon as there is an invasion of right. But 'cause of action' and 'right of action'...are not synonymous or interchangeable A right of action is the right to enforce a cause of action (American Jurisprudence 2nd Edition, Vol. 1). A person residing anywhere in the country being aggrieved by an order of Government central or State or authority or person may have a right of action at law but it can be enforced or the jurisdiction under Article 226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. The cause of action arises by action of the Government or authority and not by residence of the person aggrieved To the same effect is the decision of this Court in the case of Rakesh Dhar Tripathi Vs. Union of India (UOI) and Others, AIR 1988 All 47 , wherein Division Bench has reiterated that neither place of service of notice nor place of the residence of the Petitioner would give rise to a cause of action within that territory. 6. Union of India (UOI) and Others, AIR 1988 All 47 , wherein Division Bench has reiterated that neither place of service of notice nor place of the residence of the Petitioner would give rise to a cause of action within that territory. 6. In the instant case the service of the notice on the Petitioner is not an integral part of the cause of action. In fact the authorities concerned had seized the documents without any notice After the detention of the documents pertaining to the goods imported by the Petitioner a notice has now been issued to the Petitioner during the pendency of the writ petition asking him to appear and produce evidence This notice for producing evidence, as mentioned above, was issued after the detention of the documents and is not a basis for detaining those documents. It is not necessary for the Petitioner to plead and prove service of notice for getting appropriate writ from this Court. In fact issuance of notice by the Respondents is not a condition precedence for detaining the documents. On the basis of such a notice which is not an integral part of the cause of action, this Court cannot acquire jurisdiction under Article 226 of the Constitution to entertain the writ petition. 7. The agreement alleged to have been executed at Varanasi by the Petitioner cannot give jurisdiction to this Court. The import licence and the alleged agreement are evidence which may be necessary to prove the fact that the Petitioner is entitled to import goods without paying duty. The evidence has to be distinguished from the facts which go to constitute a cause of action Evidence for proving the facts which constitute cause of action cannot confer jurisdiction on a High. Court within whose territory the evidence is found. In this connection reference may be made to the case of The State of Madras Vs. C.P. Agencies and Another, AIR 1960 SC 1309 , wherein following definition of cause of action has been cited with approval, according to which the cause of action means: Every fact which it would be necessary for the Plaintiff to prove, if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. The decisions cited by the learned Counsel for the Petitioner, namely, The State of Madras Vs. C.P. Agencies and Another, (supra), in Re Laxmi Narayan. AIR 1954 Mad. 594 and Jagat Nath Wahal and Others Vs. The U.P. State Road Transport Corporation and Others, AIR 1977 All 83 , do not support the case of the Petitioner. There is no dispute about the definition of cause of action, which has been given in these cases. In fact the Supreme Court in the case of State of Rajasthan and Others Vs. Swaika Properties and Another, (1985) 3 SCC 217 , in paragraph 8 of the judgment has relied on the similar definition of the cause of action. None of the cases relied upon by the learned Counsel for the Petitioner is an authority for the proposition that evidence which is required to prove the facts which go to constitute the cause of action can be treated as a part of the cause of action so as to confer the jurisdiction on a High Court under Article 226 of the Constitution to issue writs against an authority which is outside its territorial jurisdiction even though the cause of action has arisen in a different State. 8. In the end, learned Counsel for the Petitioner has argued that for the Respondents it does not make any difference whether the writ petition is filed against the impugned action at Bombay or at Allahabad, as the Central Government has its Standing Counsel in every High Court, but on the other hand it will be highly inconvenient to the Petitioner to go Bombay to file the writ petition and as such, this Court should not decline to inter-fere under Article 226 of the Constitution It is not possible to agree with the learned Counsel. Question is not of conveniences to the parties question is that of jurisdiction of this Court under Article 226 of the Constitution to issue a writ to the Respondents. Question is not of conveniences to the parties question is that of jurisdiction of this Court under Article 226 of the Constitution to issue a writ to the Respondents. As we have held above this Court has no jurisdiction to entertain this writ petition Even if both the parties agree for getting this writ petition decided at Allahabad we will have no jurisdiction to entertain this writ petition, because if the court has no jurisdiction to entertain a case, the agreement of the parties cannot confer a jurisdiction on it. 9. The writ petition is, as such, dismissed as not maintainable. There will, however, be no order as to costs.