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Madhya Pradesh High Court · body

2009 DIGILAW 1106 (MP)

EMERALD INDUSTRIES LTD v. STATE OF M P

2009-09-09

S.C.SHARMA

body2009
Judgment ( 1. ) REGARD being had to the similitude of the controversy involved in W. P No. 2841/2008, W. P No. 2842/2008 and W. P No. 2957/2008, they were heard analogously together and disposed of by this singular order. For the sake of convenience, the facts in Writ Petition No. 2841/2008 are exposited herein. ( 2. ) PETITIONER before this Court has filed the present writ petition being aggrieved by the action of the State of U. P in recovering transit fee on transit of crushed stone (Ballast ). ( 3. ) THE petitioner has stated before this Court that the petitioner is a Company registered under the Companies Act and engaged in the business of mining block stone (Ballast) and its supply to Railways and other private parties. The petitioner has further stated that a lease was granted in favour of one Smt. Prashila Bhansali by the respondent No. 2 Collector, Gwalior and a No Objection Certificate was also granted by the Forest Department wherein it has been categorically reflected that the land in question is a revenue land, situated at a distance of 10 Kms from the forest area and a no objection certificate was issued certifying that the land is not a forest land keeping in the judgment delivered by the Honble Apex Court in the; case of T. N. Godaverman Thirumalkapad Vs. Union of India AIR 97 (SC) 1228. The petitioner has also stated that he is regularly paying the transit fee. It has further been stated by the petitioner that the petitioner Company is regularly depositing the transit fee under the provisions of Madhya Pradesh Minor minerals Rules 1996, however, the moment it is transporting the ballast to the State of U. P, the State of U. P is illegally charging the transit fee. The contention of the petitioner is that the transit fee is being charged from the petitioner by virtue of notification dated 14th June 2004 issued by the State Government and the same is payable only in respect of forest produce. In the present case the levy of transit fee by the State Government of U. P is in question. The contention of the petitioner is that as no forest produce is being transported, no transit fee can be charged by the State of U. P in the facts and circumstances of the case. ( 4. In the present case the levy of transit fee by the State Government of U. P is in question. The contention of the petitioner is that as no forest produce is being transported, no transit fee can be charged by the State of U. P in the facts and circumstances of the case. ( 4. ) A reply has been filed by the State of U. P and it has been stated before this court that this court does not have jurisdiction to entertain the present writ petition as the transit fee is being charged on the basis of a notification dated 14th June 2004, issued by the State Government of U. P by which U. P transit and Timber and Timber Forest produce Rules 1978 have been amended. Besides this various other grounds have also been raised in the return filed by the respondent State of U. P. In the present case, the State of U. P has challenged the jurisdiction of this court to entertain the present writ petition and, therefore, the same has to be answered first. ( 5. ) LEARNED counsel appearing on behalf of the petitioner has argued before this Court that the petitioner company is having its registered Office at Gwalior and the mineral is being extracted in the State of M. P by virtue of a lease granted by the Collector Gwalior and there fore, this court does have the jurisdiction to entertain the present writ petition. She has also argued before this Court that the no objection certificate issued by the Divisional Forest Officer itself establishes that the land from which the mineral is being extracted is not a forest land and by no stretch of imagination such transit fee under the UP Timber and Timber Forest produce (First amendment) Rules 2004 can be levied upon the petitioner. Learned counsel for the petitioner has relied upon a judgment delivered by this Court in the case of M/s Cadbury India Ltd. Malanpur District Bhind and Others Vs. Learned counsel for the petitioner has relied upon a judgment delivered by this Court in the case of M/s Cadbury India Ltd. Malanpur District Bhind and Others Vs. State of M. P and Another reported in 2007 (III) MPJR 195 wherein a vehicle was checked within the territorial jurisdiction of Indore Bench when the material was being brought to Malanpur and in those circumstances, this Court has held that the cause of action would also arise in a place not only where the order is passed but also at a place where the consequence of the order has the effect on the person concerned. ( 6. ) LEARNED counsel for the petitioner has also relied upon a judgment delivered by Full Bench of this Court in the case of K. P. Govil Vs. Jawaharlal Nehru krishi Vishwavidyalay Jabalpur and another reported in 1987 JLJ 341 , where it was held that the cause of action would arise at a place where the order is made and also at a place where its consequences fall on the person concerned. ( 7. ) LEARNED counsel for the petitioner has also relied upon a judgment delivered by the Honble Apex Court in the matter of Bikash Bhushan Ghosh and Others vs. Novartis India Ltd. And another reported in 2007 (5) SCC 591 . In the aforesaid case termination order of an employee was in question and the employee was transferred from Farukhabad (U. P) and the termination order was served in calcutta and in such circumstances the Honble Apex Court has held that the state of West Bengal had jurisdiction to make a reference of the matter for adjudicating the industrial dispute. Learned senior counsel appearing on behalf of the State of U. P has relied upon a judgment delivered by the Honble Apex Court in the case of Alchemist Limited and Another Vs, State Bank of Sikkim and Others reported in AIR 2007 SC 1812 , wherein Honble Apex Court has held that the person to whom a writ is issued must be amenable to its jurisdiction either by residence or location within those territories. He has also relied upon a judgment delivered by the Honble Apex Court in the matter of Om Prakash Shrivastava Vs. He has also relied upon a judgment delivered by the Honble Apex Court in the matter of Om Prakash Shrivastava Vs. Union of India and another reported in 2006 (6) SCC 207 where in it has been held that the writ petitioner has to establish that a legal right claimed by him prima facie has been infringed or is threatened to be infringed by respondent within the territorial limits of the High Courts jurisdiction. In the present case, the transit fee is being levied upon the petitioner as per the statutory provision under the U. P Transit and Timber and Timber Forest Produce (First Amendment) Rules 2804, which empowers the State of U. P for levying transit fee in respect of forest produce and the transit fee is being levied upon the petitioner within the State of u. P. It is not a case where transit fee is being levied upon the petitioner by the state of M. P and, therefore, the cases relied upon by the learned counsel for the petitioner are distinguishable. ( 8. ) THE judgment relied upon by the learned counsel for the petitioner in the case of M/s Cadbury India Ltd. Malanpur District Bhind and Others Vs. State of M. P and Another reported in 2007 (III) MPJR 195 has held as under:- "7. While considering the question with regard to territorial jurisdiction of this Bench, a Fulf Bench in the case of K. P. Govil (Supra) has taken not of the provisions of Article 226 of the Constitution, the import of the word, "cause of action" and it has been held that the casue of action would also arise in a place not only where the order is passed but also at a place where the consequence of the order has effect on the person concerned. In the present case, the material was being transported from Mumbai and it was coming to malanpur. Orders have been passed by the authorities of the respondents addressing M/s Cadbury India Limited, malanpur, District Bhind to pay the amount of Rs. 13. 00 lacs and the amount of Rs. 13. 00 lacs is also deposited by M/s Cadbury India Limited, Malanpur. The consequences of the orders passed has resulted in adverse effect on the establishment of the Companys unit situated at Malanpur and they have been penalized from the same. 13. 00 lacs and the amount of Rs. 13. 00 lacs is also deposited by M/s Cadbury India Limited, Malanpur. The consequences of the orders passed has resulted in adverse effect on the establishment of the Companys unit situated at Malanpur and they have been penalized from the same. Keeping in view the principle laid down in the case of K. P. Govil (supra), it is to be held that party of cause of action arose within the territorial jurisdiction of this Bench and this Bench has jurisdiction to hear the matter. Accordingly, the preliminary objection raised is overruled. ( 9. ) FROM a perusal of the aforesaid judgment it is evident that the factory of Cadbury is situated at Malanpur (Gwalior) and the vehicle was checked under the jurisdiction of Indore Bench, however, the territorial jurisdiction of different benches was involved. In those circumstances, this Court has held that the matter was within the jurisdiction of Gwalior Bench. ( 10. ) IN the matter of K. P. Govil (supra) decided by a Full Bench of this Court in paragraph 10 it was held as under:- "10. The next question that crops up for decision is whether the cause of action wholly or in part arose at a place within the specified revenue district, so as to give jurisdiction to this Bench of the High Court to entertain the petition. Article 226 (2) of the Constitution provides that, "the power conferred by CI. (I) to issue directions, orders or writs to any Government, Authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government, or authority or the residence of such person is not within those territories. " In nasiruddin (supra), it has. been seen that the Supreme Court held "the expression cause of action in an application under article 226 would be as the- expression understood". In Gurdit Singh (supra), H. M. Beg observed in his dissenting judgment that:- "the expression cause of action has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or of the basis of a right and no more. In Gurdit Singh (supra), H. M. Beg observed in his dissenting judgment that:- "the expression cause of action has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or of the basis of a right and no more. In a wider and more comprehensive sence, it has been used to denote the whole bundle or material facts which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit". In W. W. Joshi (supra), the Bombay High Court considered the maintainability of three petitions filed by the persons who were in service of the former State of Madhya Pradesh and whose services were terminated by the then Government of Madhya Pradesh, in the light of the provisions of Section 88 (b) of the State Re-organisation Act, 1956, which read as follows:-" (a ). . . . . . . . . . . . . . . . . . . . " (b ). If there be two or more successor States and the cause of action arose wholly within the territories of one of them, be a liability of that successor State ". After explaining the meaning of the terms cause of action, it was held that: ". . . . . . . . the fact that the order for termination of services was made would from part of a cause of action, and it would arise at the place the order is made. . . . . . . . . That fact by itself alone cannot afford to him a ground to claim relief at the hands of this Court. He must further prove that the consequence of that order fell on him i. e as a consequence of that order he, in fact, was removed from services. In our opinion, therefore, for a claim of this kind the cause of action would arise at a place where the order of termination of service was made and also at a place where its consequences fell on the servant. In our opinion, therefore, for a claim of this kind the cause of action would arise at a place where the order of termination of service was made and also at a place where its consequences fell on the servant. If this cause action has in its entirety arisen within the former territories of the State of Madhya Pradesh which now form part of the States of Bombay then the liability referred to in S. 88 of the Act of the former State of Madhya Pradesh would fall on the present State of Bombay under CI. (b) thereof" "the decision was followed in Damomal (supra) though in a different context and under a different provision of law. The principle deducible is that in cases of orders impugned, the cause of action would arise at a place where the order is made and also at a place where its consequences fall on the person concerned. This principle of appears to be sound, but the question remains, whether in the present case, the consequences of the impugned order (Annexure P/2) could be said to have fallen on the petitioner at Gwalior or at any other place within the specified revenue districts, because it was admittedly made at Jabalpur, which is a place beyond the jurisdiction of this Bench. We are of the view that it is possible to say that the consequences flowing from the impugned order fell on the petitioner at Gwalior, where he is posted. The reason is that the impugned order was an order of fresh appointment served on the petitioner at Indore, where he was in service of Krishi Vigyan Kendra Trainer Training centre, run by the Kasturba Gandhi National Memorial Trust and not by the University. The order was to be effective from the date he took over charge of the post at Gwalior. In other words, in order to succed in his petition, it would not only be of appointment in his favour was made by the University, but also that he made the order effective by joining the post at Gwalior. If he fails to prove that the appointment order has taken effect and that he has become an employee of the University, he would not be entitled to any relief against the University. If he fails to prove that the appointment order has taken effect and that he has become an employee of the University, he would not be entitled to any relief against the University. That being the position, the fact that the order of appointment was made and the further fact that the appointment was accepted by joining the post would from part of a cause of action and it would arise at the place the order is made, as also at the place the order is implemented by joining the post. We accordingly hold that a part of cause of action having arisen at Gwalior, this Bench has jurisdiction to entertain the petition. The aforesaid case also relates to the territorial jurisdiction of different bench of the M. P. High Court and it was a case of an employee who at some point of time was posted at Gwalior. The petitioner therein was an Assistant professor in the Jawaharlal Nehru Krishi Vishvidyayala and in those circumstances it was held that the cause of action shall arise at a place from where the order is made and also at a place where the consequence fell on the person concerned. Similarly various other judgments relied by the learned counsel for the petitioner also relates to service matters and, therefore, distinguishable on facts. ( 11. ) BIKASH Bhushan Ghosh (supra) also relates to a service matter where the order of termination was served to the employee at Calcutta. In those circumstances, the Honble Apex- Court has held that the State of West Bengal has jurisdiction to make a reference to the Industrial Tribunal. ( 12. ) THE Honble Apex Court in the case of Om Prakash Shrivastava (supra) while deciding a issue relating to the jurisdiction of a High Court has held as under:- "7. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limits of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the courts jurisdiction and. In order to maintain a writ petition, a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the courts jurisdiction and. such infringement may take place by causing him actual injury or threat thereof 8. Two clauses of Article 226 of the Constitution on plain reading give clear indication that the High Court can exercise power to issue direction, order or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part had arisen within the territories in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. (See ONGC Vs. Utpal Kumar Basu) 9. By "cause of action" it is meant 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, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. (See Bloom Dekor Ltd. Vs. Subhash Himatal Desai) 10. In a generic and wide sence (as in Section 20 of the Civil Procedure Code, 1908) "cause of action" means every fact, which it is necessary to establish to support a right to obtain a judgment. (See Sadanandan Bhadran Vs. Madhavan Sunil Kumar) 11. !t is settled law that "cause of action" consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other works, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. (See South East Asia Shipping Co. Ltd Vs. Nav Bharat Enterprises (P) Ltd) 12. The expression "cause of action" has acquired a judicially settled meaning. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. (See South East Asia Shipping Co. Ltd Vs. Nav Bharat Enterprises (P) Ltd) 12. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sence cause of action means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wide sence, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Complendiously, as noted above, the expression 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. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action". (See Rajasthan High Court Advocates Assn. Vs. Union of India ). 13. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitue either the infringement or the basis of a right and no more. In a wide and more comprehensive sence, it has been used to denote the whole bundle of material fact, which a plaintiff must prove in order to succeed. These are all those essential facts without the poof of which the plaintiff must fail in his suit. (See Gurdit Singh Vs. Munsha Singh ). 14. The expression "cause of action " is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal: a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person (see Blacks Law Dictionary ). In strouds Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed the plaintiff must prove in order to obtain judgment. In strouds Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed the plaintiff must prove in order to obtain judgment. In words and Phrases (4th Edn.) the meaning attributed to the phrase "cause of action" in commonlegal parlance is existence of those facts, whch give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia Vs. State of Maharastra ). 15. In Halsburys Laws of England (4th Edn.) it has been stated as follows: "cause of action has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitled right to traverse. cause of action has also been taken to eman that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action. " 18. In the instant case the High Court has not dealt with the question as to whether it had jurisdiction to deal with the writ petition. It only observed that the Delhi High Court may have jurisdiction, but the issues relating to conditions of prisoners in the State of U. P can be more effectively dealt with by the Allahabad High Court, As noted supra, there were two grievances by the appellant. But only one of them ie the alleged lack of medical facilities has been referred to by the High Court. It was open to the Delhi High Court to say that no part of the cause of action arose within the territorial jurisdiction of the Delhi High Court. The High Court in the impugned order does not say so. On the contrary, it says that jurisdiction may be there, but the Allahabad High Court can deal with the matter more effectively. That is certainly not a correct way to deal with the writ petition. Accordingly, we set aside the impugned order of the High Court and remit the matter to it for fresh hearing on merits. On the contrary, it says that jurisdiction may be there, but the Allahabad High Court can deal with the matter more effectively. That is certainly not a correct way to deal with the writ petition. Accordingly, we set aside the impugned order of the High Court and remit the matter to it for fresh hearing on merits. A prayer has been made for release of the appellant on parole for the reason indicated in the application. We are not inclined to pass any order on the said application. The same is rejected. " The aforesaid judgment delivered by the Honble Apex Court make its clear that this Court does not have jurisdiction to decide the action of the State of U. P as transit fee is being levied by the State of U. P and the petitioner for challenging the same certainly has a remedy before the Allahabad High Court as Allahabad high Court is having territorial jurisdiction in respect of State of U. P. ( 13. ) LEARNED counsel appearing for the respondents has relied upon a judgment delivered in the case of Alchemist Limited (supra) wherein the Honble Apex court has held as under:- "12. Before entering into the controversy in the present appeal. let the legal position be examined. Article 226 of the Constitution as it originally enacted had two fold limitations on the jurisdictions of High Courts with regard to their territorial jurisdiction. Firstly, the power could be exercised by the High Court throughout the territories in relation to which it exercise jurisdiction, i. e the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the high Court is empowered to issue such writs must be "within those territories", which clearly implied that they must be amenable to its jurisdiction either by residence or location within those territories. Secondly, the person or authority to whom the high Court is empowered to issue such writs must be "within those territories", which clearly implied that they must be amenable to its jurisdiction either by residence or location within those territories. " once again, it is clear from the aforesaid judgment delivered by the Honble Apex Court that the power conferred under Article 226 of the Constitution has to be exercised by the High Court throughout the territories in relation to which it exercises its jurisdiction and therefore, in the present case as the Allahabad High Court has the territorial jurisdiction over the matter as the transit fee is being levied at Itawa and Jhansi falling within the territory of the State of U. P. Keeping in view the aforesaid, this Court is of the considered opinion that the present writ petitions are not maintainable before this court for want of territorial jurisdiction and the petitioners can ventilate their grievance by preferring writ petitions before the Allahabad High Court. Resultantly, all the writ petitions stands disposed of with the aforesaid. No order as to costs. Petition disposed of.