Nathmal Tekriwala v. Coal India Limited — 1993 DIGILAW 325 (CAL)

Judgment : In this writ petition the petitioners have prayed for finalising and acceptance of the tender submitted by the petitioners pursuant to the notice inviting tender as published in the Daily Newspaper "PRAJATANTRA" dated May 9, 1992, since the tender submitted by the petitioners being the lowest amongst all the tendrers participating in such tender for the stockyard at Nirgundi. 2. A letter has been issued by the Chief of Marketing, Coal India Ltd. dated February 22, 1993 whereby he has given consent to the said Corporation for sanction of wagon for transportation of coal from the various collieries under the Coal India Ltd., to the stockyards at Nirgundi and Jagannathpur. It has been alleged that it has further come to the notice and knowledge of the petitioners that such consent for the said Corporation stockyard at Nirgundi and Jagannathpur was issued by the Chief of Marketing, Coal India Ltd., through the said Mahanadi Coal Fields Ltd. It has further come to the notice and knowledge of the petitioner that the Executive Director of Rail Movement, Railway Board has also been approached by the said authorities for the purpose of sanction of the Railway Programme for movement of the Railway Wagons for transportation of Coal from the pitheds or the various collieries for the said two stockyards. It is needless to state in this connection that the petitioners participated in the said tender in respect of stockyards to be set up by the said Corporation at Nirgundi. 3. It has also been submitted on behalf of the petitioners that since the said Corporation floated the tender inviting the public to participate under certain terms and conditions and since pursuant to such invitation of tender, the petitioners participated in the said tender and since the rates quoted by the petitioners in respect of the stockyard at Nirgundi has been found to be the lowest against the other participating tenderers for the same, the respondent Corporation is obliged to accept the said tender of the petitioners. The Respondent Coal India Ltd. as well as the Railway Authorities and the said Mahanadi Coal Fields Ltd. are also obliged to see that the said Corporation does not proceed to obtain the sanction of the programme for movement of railways for transportation of coal from the pitheds of the collieries to the said Nirgundi stockyard without the observance of the principles of natural justice by the said Corporation in the matter of acceptance or the tender. 4. The only contention of the respondents in this writ application is that this Court has no territorial jurisdiction to entertain and proceed with the writ petition. 5. It has been submitted on behalf of the respondents Nos. 2 and 3 that this Court has no territorial jurisdiction over the matter and as such, the interim order passed in the writ application is without jurisdiction and is 'non-est'; 6. It has also been submitted that in the event allegations made in the petition are correct, the petitioner may have a good case on merits but the question of law that arises is whether this Court has any territorial jurisdiction to entertain and to hear the matter and pass orders therein since according to the said respondents the entire work, commencing from invitation of tenders and culminating with the tinalisation thereof and award of work to some other tenderer, has taken place in Cuttack, within the State of Orissa and no part thereof has taken place within the state of West Bengal. 7. It has been submitted on behalf or the said respondent that assuming for the sake of argument that there are several tenderers and hypothetically speaking one each from every state, in respect of the very same transaction, and cause of action the High Courts throughout India will have the territorial jurisdiction to entertain and decide the dispute. Such a situation it has been submitted will milited against the salutary principle of avoidance of multiplicity of proceedings. It is further submitted that the only Court of competent jurisdiction to entertain the writ petition is the Orissa High Court situated at Cuttack. 8. Such a situation it has been submitted will milited against the salutary principle of avoidance of multiplicity of proceedings. It is further submitted that the only Court of competent jurisdiction to entertain the writ petition is the Orissa High Court situated at Cuttack. 8. It has been alleged that the entire writ petition suffer from deliberate and willful falsehood as in order to mislead this Court, the petitioner has deliberately impleaded Coal India Ltd, Railway Board, Mahanadi Coal Fields Ltd, and also its officials as party respondents despite the fact that no direct relief is claimed against such respondents and no relief can possibly be legally claimed by the petitioner against such respondents. It has also been submitted that while entertaining the writ petition and also while passing the orders of injunction in this case this Court has probably not considered these aspects of the matter. It has further been submitted that by impleading the aforesaid respondents, the petitioner has misled this Court by practising fraud on this Court and is guilty of gross abuse of the judicial process of this Court. It has further been submitted on behalf of the said respondents Nos. 2 and 3 that the petitioner has misled the Court by describing the Orissa State Corporation, as an agent of Coal India Ltd. It has been submitted that such deliberate, false averment and deliberate misrepresentation is preposterous and on this ground alone the writ petition is liable to be dismissed. It has further been submitted that the petitioner has deliberately indulged in such falsehood, so as to clothe this Court with jurisdiction to entertain and hear the writ petition. It has also been alleged that Clause 13 of the NIT (Notice Inviting Tenders/tender conditions) clearly shows that the respondent Corporation purchases Coal from Coal India Ltd. and therefore both in terms of the Transfer of Property Act and the Sale of Goods Act, the Orissa State Corporation becomes the owner of the coal and cannot possibly by styled as agent of Coal India Ltd. as alleged in the writ petition. Further it has been alleged that in any event, the State Corporation came into the picture, consequent upon the change of policy of the Central Government in the year 1992 where under State Governments and State Government undertakings were called upon to handle distribution of coal (through stockyards) to the small scale industrial sector under sponsorship arrangements. Consequent upon such policy decisions or the Central Government and pursuant to applications made by the Stale Government of Orissa to the Department of Coal Government of India, the respondent, State Corporation ultimately came into picture and undertook the burden of maintaining Coal depots and stockyards within the State of Orissa and supplying/making available the same to the small scale industrial sector under sponsorship arrangements. It has been also alleged that the petitioner was well aware of these facts while making such intentional false allegations in the writ petition so as to some-how mislead this Court that some of the respondents reside/have their place of business within the territorial jurisdiction of this Court. 9. It has also been submitted that the only respondent/necessary parties as far as the petitioner’s real grievance is concerned are the respondents Nos.2 and 3. Admittedly the petitioner does not and cannot have any cause of action against the other impleaded respondent and in case the respondents Nos.2 and 3 are removed from the cause title, the writ petition will fall like a house of cards as the petitioner has no privity or anything at all to do with the other respondents. 10. It has also been submitted on behalf of the respondents Nos. 2 and 3 that it is true that letters were exchanged between the said respondent and the petitioner and such letters were sent to the petitioner at its address in West Bengal and the petitioner has complied with tender requirements from West Bengal. 11. It has been submitted that the petitioner's only grievance as made out in the writ petition is that despite his tender being the lowest, rejection thereof by the State Corporation without assigning any reason for such rejection is arbitrary and improper. . It has been submitted on behalf of the respondents Nos. 2 and 3 that the cause of action in respect of such relief clearly arises within the State of Orissa and outside the jurisdiction of this Court. 12. It has also been submitted on behalf of the respondents Nos. . It has been submitted on behalf of the respondents Nos. 2 and 3 that the cause of action in respect of such relief clearly arises within the State of Orissa and outside the jurisdiction of this Court. 12. It has also been submitted on behalf of the respondents Nos. 2 and 3 that the advertisement inviting tenders was made in local papers in Orissa. The petitioner submitted his application to the State Corporation in Orissa. The petitioner submitted documents in support of this application in Orissa, the tender committee considered all the tenders in Orissa, the decision of the tender committee/recommendation of the tender committee was taken/made in Orissa and the award to the successful tender was made also in the State of Orissa, and therefore, by no stretch of imagination can it be said that this Court has territorial jurisdiction over such matter merely on the basis of hypothetical assumptions. 13. In support of his contention the Learned Advocate for the respondents Nos. 2 and 3 relied upon the following decisions :- (1) State of Rajastan v. Swaika Properties reported in AIR 1985 SC 1289 : (2) Bijoli Grill v. Union of India reported in 1990(2) C L J 142; (3) Pottery Mazdoor Panchayet v. Union of India reported in 1989(1) CL J 324; (4) Luchy Minmere Pvt. Ltd. v. State of Rajasthan reported in AIR 1982 NOC 213; (5) Narayan Das S. Kanuda v. S. D. Joshi reported in AIR 1968 Bombay 280. 14. It has been submitted on behalf of the respondents Nos.2 and 3 that the terms scope and working involved is neither in dispute nor under challenge and, as such, no cause of action can arise on the basis of the documents annexed or on the basis of transportation of Coal movement involved in State of West Bengal. 15. It has also been submitted on behalf of the said respondents that since no notice was issued in the writ petition the procedure adopted by this Court in final hearing and adjudicating the writ petition on merit is not in accordance with law, null and void abinitio according to the Learned Advocate for the said respondents. 16. Mr. P. K. Roy, Learned Advocate for the petitioner, on the other hand, submitted that the cause of action is a bundle of facts. 16. Mr. P. K. Roy, Learned Advocate for the petitioner, on the other hand, submitted that the cause of action is a bundle of facts. He has referred to the judgment and decision in the case of (6) Cooke v. Gill reported in 21 W R 334. 17. Mr. Roy further submitted that the cause of action has been defined to be "every act which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment of the Court constitues cause of action." 18. Mr. Roy further submitted that the said principles enunciated in the aforesaid judgment has been upheld by the Supreme Court and also by several High Courts. 19. He has also submitted that in the instant case the tender documents were sent by the respondent Corporation to the petitioner by post at the petitioner's address at Howrah, which forms the basis of the dispute. In order to be a judgment, it is necessary that the petitioner must fulfil the conditions of payment of the Earnest Money etc. The Earnest Money was paid by the petitioner and was accepted by the respondent Corporation and such acceptance was communicated to the petitioner by post at the petitioner's office at Howrah within the State of West Bengal. As a matter of fact, since the lowest tender is not accepted it is also obligatory on the part of respondent Corporation to communicate the reasons which they did by their letter dated 6.5.93 sent to the petitioner at the petitioner's address at Howrah. In view of the aforesaid facts there cannot be any doubt that the part of the cause of action has arisen within the State of West Bengal. 20. He has relied upon two other judgments delivered by me. (7) General Saw & Blades Co. and Others v. Bharat Coking Coal Ltd. and Others reported in AIR 1990 Cal 96 and (8) Parameswarilall Puroshottamlall and Another v. M/s. Food Corporation of India & Others reported in 1993(1) Calcutta Law Times 254, He has also submitted that the judgment and decisions relied upon by Mr. Mahanti Learned Advocate for the respondents Nos. 2 and 3 in the case of State of Rajasthan and Others v. M/s. Swaika Properties and Another reported in AIR 1985 SC 1289 is distinguishable in the facts of the present case. 21. Mahanti Learned Advocate for the respondents Nos. 2 and 3 in the case of State of Rajasthan and Others v. M/s. Swaika Properties and Another reported in AIR 1985 SC 1289 is distinguishable in the facts of the present case. 21. I have considered the respective submissions of the parties and the decisions cited from the bar. 22. It appears to me from the facts alleged in the petition that the petitioner applied for being considered for pre-qualification Pursuant to the advertisement published in Daily Newspaper "Prajatantra" 23. The petitioner was sent the tender documents for submission of the same by 19th August, 1992 and the petitioner received the same at Howrah at their office. One of the conditions is that the said tender documents duly filled in was to be submitted together with a Bank Draft of Rs. 15,000/- as earnest money. The respondent Corporation acknowledged the receipt of the said slim of Rs. 15,000/- by a letter dated 4th September, 1992 sent by the said Corporation to the petitioner at its Howrah Office. 24. It is the contention of the petitioner that the rate quoted by the petitioner is the lowest amongst the rates quoted by the other participating. The petitioner by letters dated 2nd February, 1993 and 23rd February, 1993 requested the respondent Corporation to let them know the fate of the petitioner's tender. By a letter dated 6th May, 1993 sent by the respondent Corporation to the petitioner at its Howrah Office, the said Corporation sent Demand Draft for Rs. 34,912/- by registered post without disclosing any reason as to the refusal to accept the said tender. 25. It is the contention of the petitioners that the respondent Corporation is a Government of Orissa Undertaking and is wholly controlled and financed by the Government of Orissa, and as such is an instrumentality of the Government, and is a State within the meaning of Article 12 of the Constitution of India. The respondent cannot act arbitrarily and must act fairly. 26. The only objection raised on behalf of the Learned Advocate for the said respondents, is that the annexures cannot constitute the part of cause of action since they are admitting that the petitioner is the lowest offen and do not dispute the condition on merit. 27. In my view such contention of the Learned Advocate for the said respondents cannot be accepted. 27. In my view such contention of the Learned Advocate for the said respondents cannot be accepted. The petitioner cannot assume that the contention of the petitioner will be accepted at the time of filing of the writ petitioner and, as such, in support of its contention that the petitioner's offer is the lowest and the petitioner complied with the condition of the tender and disclosed the relevant documents and the correspondence being the receipts and other documents which have all been annexed to the writ petition. The acknowledgement and correspondence had been made and the same sent to the petitioner at its Office at Howrah on the basis of which it can be ascertained that the petitioners offer is the lowest. 28. In my view the judgment and decision in the case of State of Rajasthan and Others v. M/s. Swaika Properties and Another, reported in AIR 1985 SC 1289 relied upon by the learned advocate for the respondent is distinguishable. In the said judgment a notification was challenged by the petitioner issued by the State of Rajasthan acquiring the land of, the petitioner situated at Rajasthan. The notification issued by the State Govt. under Section 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 encumbrance. The Supreme Court in that context held that it was not necessary for the owner to plead the service of notice on him under Section 52(2) for the grant of an appropriate writ direction or order under Art. 226 of the Constitution for quashing the notification issued by the State Government under Section 52(1) or the Act, and accordingly, the said decision cannot be of any assistance to the respondents Nos. 2 and 3. 29. The judgment and decision in the case of Pottery Mazdoor Panchayat & Anr. v. Union of India & Ors. reported in 1989 (1) CLJ 324 may also be taken note of. In the aforesaid case the writ petition was dismissed on the ground of lack of territorial jurisdiction of the High Court to entertain the writ petition. Aggrieved by the determination the writ petitioners came up in appeal. v. Union of India & Ors. reported in 1989 (1) CLJ 324 may also be taken note of. In the aforesaid case the writ petition was dismissed on the ground of lack of territorial jurisdiction of the High Court to entertain the writ petition. Aggrieved by the determination the writ petitioners came up in appeal. The Division Bench allowed the appeal and held that when the respondent, public Sector Company has its Head, Office within territorial jurisdiction of Calcutta High Court, the forum of the petitioner can be the High Court at Calcutta. 30. The decision, in my view, although relied upon by the learned advocate for the respondents Nos. 2 and 3 cannot be of any assistance to him. 31. The other judgment relied upon by the Learned Advocate for the respondents Nos. 2 and 3, is Bijoli, Grill Aerated Water Company & Anr. v. Union of India & Ors, reported in 1990(2) CLJ 142 . 32. It was held the aforesaid Judgment that since no part of cause of action arising within the territorial jurisdiction of Court, this Court has no jurisdiction to issue writ. The proposition laid down in the aforesaid decision cannot be disputed. This decision in my view does not lend any assistance to the case made out by the respondents Nos. 2 and 3. 33. The other decisions cited namely, Luchy Minmete Pvt. v. State of Rajasthan reported in AIR 1982 NOC 213, Narayan Das S. Kanuda v. S. D. Joshi reported in AIR 1968 Bombay 280 cannot have my relevance to the facts of the instant case. 34. In support of his contention he has to establish the same by the documents and the said documents constitute the part of cause of action since some of the said documents has been received by them in Howrah Office. It cannot be said that this Court has no jurisdiction. 35. In this connection the judgment and decision in the case of General Saw and Blades Co. and Ors. v. Bharat Coking Coal Ltd. reported in AIR 1990 Cal 96 may be taken, note of. In the said, decision it was held that in the event the part of cause of action really arises within the jurisdiction of this Court, this Court will have jurisdiction to entertain and decide the writ petition. and Ors. v. Bharat Coking Coal Ltd. reported in AIR 1990 Cal 96 may be taken, note of. In the said, decision it was held that in the event the part of cause of action really arises within the jurisdiction of this Court, this Court will have jurisdiction to entertain and decide the writ petition. In the instant case, the part of cause of action in my view no doubt arises within the jurisdiction of this Court since the communication has been received, at Howrah which constitutes part of cause of action. 36. It may be noted that the cause of action is a bundle of facts. As held in Cook v. Gill reported in 21 WR 334, the cause of action has been defined to be "every act which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment of the Court constitutes cause of action" 37. Similar view was taken in my earlier decision in the case of Parmneswarilall Puroshottamlall and Another v. M/s. Food Corporation of India & Others reported in 1993 (1) CL T 254. 38. In this connection I may also take note of the judgment of Division Bench of this Court in the case of (9) Union of India and Others v. Hindustan Aluminium Corporation Limited and Another reported in AIR 1983 Cal 307 wherein the Division Bench held in paragraph 24 at page 314 of the said report as follows :- "Under Article 226(2) or the Constitution the High Court may exercise its power conferred by Clause (1) of Article 226 to issue, directions, orders or writs if the cause of action wholly or in part, arises within the territory over, which it exercises jurisdiction. It is, now well settled that cause of action means every fact which the plaintiff should prove, if traversed in order to succeed in the suit. 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. 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. Normally no person institutes any suit or proceeding unless his right is jeopardised or prejudiced in consequence of any action of a private individual or of the Government. 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. A writ petition is not entertained unless the petitioner comes with a case that he has been prejudiced by any action of the Government or a statutory body or authority. So in our opinion, the writ petition, prima facie discloses that a part of cause of action arose in Calcutta within the jurisdiction of the Court." 39. Accordingly, in my view, this Court has jurisdiction to entertain and decide the Writ petition. 40. In view of the fact the respondent has not specifically stated that it does not dispute the contention raised by the petitioner on merit, the petitioner is entitled to succeed on merit and I am inclined to hold that the tender submitted by the petitioner should have been accepted. 41. The Respondent Corporation is directed to finalise the tender submitted by, the petitioners pursuant to the notice inviting tender as published in the Daily Newspaper "PRAJATANTRA" dated May 9, 1992 and is also directed to accept the tender submitted by the petitioners being the lowest of all the tenders participating in such tender for the stockyard at Nirgundi. 42. Such finalise and acceptance should be made within ten weeks from the date of communication of this order. 43. The writ petition is accordingly, disposed of. There will be no Order as to costs. 44. Learned Advocate for the respondents prays for stay or operation of this order. 45. 42. Such finalise and acceptance should be made within ten weeks from the date of communication of this order. 43. The writ petition is accordingly, disposed of. There will be no Order as to costs. 44. Learned Advocate for the respondents prays for stay or operation of this order. 45. In view of the fact that ten weeks time has been already allowed, no order for stay is required to be passed. Accordingly, the prayer for stay is refused. Let a xerox copy of this order be given to the learned Advocates of both the parties upon usual undertaking.