9911796707
TMI Blog2014 (7) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... use of action, would indeed be relevant for determination of the question as to whether the writ petition ought to be entertained or not. Here, the decision to withdraw the award and the plaque from the petitioner was never communicated to him prior to the public notice being published in the print media and it is such publication, the only one in the series to make the public aware of the penalty imposed on the petitioner, that vitally affects the reputation and respect that he has earned over the years. Such affectation having taken place in Santiniketan, where the petitioner alleges he read the public notice for the first time and derived knowledge of the impugned decision of the Akademi (there being no material at least at this stage that the decision was formally served on the petitioner in any territory beyond West Bengal prior to the public notice being published), it is an integral, essential and material part of the lis constituting the cause of action to approach the Court and conferring jurisdiction on this Court to entertain the writ petition. The fact that the petitioners before the Allahabad High Court withdrew their writ petitions with liberty to approach the appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn up. 3. Preliminary objection to the maintainability of this writ petition has been raised by Mr. Krishna, learned counsel for the Akademi and its several officers who have been impleaded as respondents. According to him, the decision which has resulted in the petitioner feeling aggrieved was taken in New Delhi and since no part of the cause of action for presenting this writ petition has arisen within the territorial limits of this Court, it ought not to be entertained and merits dismissal. 4. I may place on record that no objection to the maintainability of the writ petition on the ground that the Akademi is not a 'State' within the meaning of Article 12 of the Constitution was raised by Mr. Krishna. In fact, he submitted that a writ petition questioning the action of the Akademi would be maintainable at the instance of the petitioner in the Delhi High Court. 5. Upon hearing the parties on the preliminary objection, I had proposed to the parties to go ahead with their arguments on the merits of the petitioner's claim observing that the preliminary objection would be dealt with while passing the final order on the writ petition. Mr. Krishna did not agree, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that since the newspapers where the publications have been made have a very wide circulation throughout all the States of this country including West Bengal, hence the reputation of the petitioner has been lowered in all the places where the persons knowing the petitioners has read the article. ******* 8. The petitioner states that he was at no point of time served with any communication or notice granting him opportunity to explain his position. The order dated 07.01.2014 which has been claimed to have been issued under Clause 17(11) of the Constitution of the Akademi was not served upon the petitioner, and till date the petitioner is not aware of the contents of such order which appears to be the basis of the publication of the notice. The petitioner states that he has made a demand for justice dated 31.01.2014 wherein he has agitated this issue. 9. The petitioner states that before causing such irreparable injury to the reputation of the petitioner by publication of the public notice he was not granted any opportunity informing him about the possibility of the withdrawal of the award granted to him or publication of such notice and as such the entire process is vitiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lahabad High Court but faced with the objection of lack of territorial jurisdiction, the writ petitions were withdrawn and leave obtained to move the appropriate High Court. In support of the arguments relating to lack of territorial jurisdiction, heavy reliance has been placed on the following decisions of the Supreme Court: (i) State of Rajasthan Ors. vs. M/s. Swaika Properties Anr. (1985) 3 SCC 217; (ii) Oil and Natural Gas Commission vs. Utpal Kumar Basu Ors. (1994) 4 SCC 711; (iii) National Textile Corporation Ltd. Ors. vs. Haribox Swalram Ors. (2004) 9 SCC 786; (iv) Alchemist vs. State Bank of Sikkim AIR 2007 SC 1812; and (v) Election Commission of India vs. Saka Venkata Subba Rao AIR 1953 SC 210. 11. Whenever an objection of lack of territorial jurisdiction is raised, the decisions in Swaika Properties (supra) and Utpal Kumar Basu (supra) are invariably cited by the objector. No Court, much less the Calcutta High Court, can choose to decide any matter touching the point of territorial jurisdiction before it ignoring the said decisions. 12. Bare perusal of the said decisions together with the decisions referred to therein would leave none in dou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im or while betraying remissness in compliance therewith. Trite it is that if such course were permissible, it would have the effect of destroying the hierarchical system in the administration of justice under the Constitution and the people bound to lose faith in the system. The ratio decidendi of a decision given by the Supreme Court on a point of law has to be loyally accepted by the High Court, unless of course there are sufficient grounds for the High Court to hold that there is an additional or different fact before it which makes a world of difference between conclusions in two cases even when the same principles are applied in each to similar facts. That each judge of a court of record is bound to maintain high standards of judicial conduct in Court cannot be gainsaid. Respect for any order/direction of a superior court, in view of the present dispensation, must flow as a matter of course for achieving the common good, irrespective of what a judge lower in the hierarchy believes about the necessity or the lack of it for passing such order/direction. However, bearing in mind the fact that this writ petition does not involve compliance with any direction by a superior court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains, was virtually to bring to a standstill a development scheme of the *****, irrespective of the fact whether or not the High Court had any territorial jurisdiction to entertain a petition under Art. 226 of the Constitution. Such arbitrary exercise of power by the High Court at the public expense reacts against the development and prosperity of the country and is clearly detrimental to the national interest. 10. Quite recently, Chinnappa Reddy, J. speaking for the Court in Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd. (1985) 1 SCC 260 : (AIR 1985 SC 330) administered strong admonition deprecating the practice of the High Court of granting ad interim ex parte orders which practically have the effect of the grant of the main relief in the petition under Art. 226 of the Constitution irrespective of the fact whether the High Court had any territorial jurisdiction to entertain such a petition or whether the petition under Art. 226 was intended and meant to circumvent the alternative remedy provided by law or filed solely for the purpose of obtaining interim orders and thereafter delaying and protracting the proceedings by one device or the other parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay and leaving it to the respondents to move the Court to vacate the interim order would put public interest in jeopardy. Caution was sounded that the Courts ought to be circumspect in the matter of granting interim relief, more particularly so when interim relief was directed against the orders or the actions of public officials acting in discharge of their public duty and in exercise of statutory powers. On facts and in the circumstances, the Court was satisfied that no interim relief should have been granted by the Calcutta High Court in the terms in which it was done and the same was set aside. 20. Titaghur Paper Mills Co. Ltd. (supra) was a decision not relating to grant of ex parte ad interim order. The Supreme Court, by such decision, upheld dismissal of the writ petition by the Orissa High Court on the ground of availability of an alternative remedy to the affected party who presented the writ petition. 21. The Supreme Court in Dunlop India Ltd. (supra) severely criticized the Calcutta High Court for making an interim order as soon as the writ petition was presented, when a second thought (or a second's thought) would have exposed impairment of the public interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the judges of all the High Courts could have a first look at decisions of the Supreme Court as and when the same were reported in the available journals like Supreme Court Reports, All India Reporter and Supreme Court Cases. Considering the lack of promptness in reporting reportable decisions in those days, it is highly unlikely that Amalendu Das (supra) may have been reported prior to March 13, 1984 when the rule nisi was issued and ex parte injunction ordered by the learned judge of the Calcutta High Court on the writ petition of Swaika Properties. Having regard thereto, one is left to wonder whether the observations made by the Supreme Court (as expressed in paragraphs 9 and 10 extracted supra, that exercise of power was arbitrary and issuance of a rule nisi together with a prohibitory order by the Calcutta High Court were in disregard of the caution sounded by the Supreme Court in the long line of decisions), were not too harsh qua the circumstances. One cannot say for certain, but it could well be so that the learned judge may not have had the opportunity to be aware of the caution sounded by the Supreme Court in the long line of decisions, and passed a prohibitory order see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has arisen would be entitled to receive the suit. However, without being oblivious of Section 16 of the Code of Civil Procedure (hereafter the CPC), it may be stated that different considerations would arise in regard to exercise of writ jurisdiction even in regard to immovable property related disputes in view of clause (2) of Article 226 of the Constitution read with Section 141 of the CPC. The said decision brought about a significant development of law, for testing the point of maintainability of a writ petition presented on the basis of accrual of a part of cause of action within the territory of a particular High Court, from the angle that service of any and every notice on a litigant would not entitle him to approach the Court within whose jurisdiction the notice was received but that service of such notice must form an integral part of the cause of action within the meaning of clause (2) of Article 226 i.e. it must have a nexus or relevance with the lis that is involved in the case. The user of the adjective 'integral' before 'part of cause of action' tends to suggest that even if a part of cause of action may have arisen within a High Court's territori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry should appear to have developed a tendency to assume jurisdiction on the sole ground that the petitioner before it resides in or carries on business from a registered office in the State of West Bengal. We feel all the more pained that notwithstanding the observations of this Court made time and again, some of the learned Judges continue to betray that tendency . Only recently while disposing of appeals arising out of SLP Nos. 10065-66 of 1993, Aligarh Muslim University v. Vinay Engineering Enterprises (P) Ltd., this Court observed: 'We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction.' In that case, ***** it instituted proceedings in the Calcutta High Court and the High Court exercised jurisdiction where it had none whatsoever. It must be remembered that the image and prestige of a court depends on how the members of that institution conduct themselves. If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a submission, we are afraid, the discretion cannot be used in favour of a party which deliberately invokes the jurisdiction of a court which has no jurisdiction whatsoever for ulterior motives. ***** 31. Whatever were the reasons for the Supreme Court not exercising discretion in favour of NICCO, the fact that the respondents had submitted to the jurisdiction of the learned judge without even giving the slightest inkling that the Calcutta High Court lacked territorial jurisdiction to entertain the writ petition of NICCO might have led His Lordship to proceed to hear the parties on the merits of their respective claims without adverting attention to the point of territorial jurisdiction and raising it even suo motu. 32. One also finds reference in Utpal Kumar Basu (supra) to the decision in Aligarh Muslim University v. Vinay Engineering Enterprises (P) Ltd., arising out of SLP Nos. 10065-66 of 1993. On the date the decision in Utpal Kumar Basu (supra) was pronounced, the decision in Vinay Engineering Enterprises (P) Ltd. (supra) was not reported in any journal or else the Bench would not have referred to the SLP No. The decision is since reported in : (1994) 4 SCC 710, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad the sobriety and gentleness but firmness to observe as follows: 10. *** If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair-play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case as an integral part thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which exercises in that context an inferior or subordinate jurisdiction, but any institution dealing with another institution under the Constitution shall have to observe grace and courtesy and not criticize each other, and should it be necessary, the corrective step has to be taken carefully with courtesy and respect and not by way of harsh criticism. 37. Regard being had to the strict standards set by the Supreme Court itself, the question that is often asked is whether the criticism and castigation of the Calcutta High Court were not avoidable, and the disparaging remarks necessary for the decision of the cases by the Supreme Court as an integral part thereof? Portrayal of the Calcutta High Court, as if it were the only High Court to have indulged in entertaining writ petitions without territorial jurisdiction, and disclosure of the names of the concerned learned judges in Swaika Properties (supra) and Utpal Kumar Basu (supra) and the harsh criticism have left an indelible impact on the administration of justice in matters where territorial jurisdiction has been in issue, leading to possible deflection of justice. Notably, subsequent reported cases where the Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ito justitiae is doing what is right. That precisely is the reason why a mistake is reviewed in exercise of inherent powers and justice administered. In the words of the Supreme Court itself, to own up the mistake when judicial satisfaction is reached does not militate against its status or authority; perhaps it would enhance both [see A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602]. What emerges is that the judiciary is manned by none other than human beings and even though those who are elevated as High Court judges are mature, wise and prudent persons, who have the independence to express their mind and are bound by their oath to uphold the Constitution and the laws, there could be situations where a judge might miss an evidence or misinterpret the law and based on his erroneous perception of law or facts or both, an erroneous decision is rendered making a party to the lis feel aggrieved. A judge is entitled to form his own views and if at all his view is patently erroneous and there is no material to doubt his integrity, it may not always be right to view it as anything more than an aberration. The point that resonates with relevance and immediacy is that a sweeping generalisatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi, the chain of events could not have been complete without the public notice being published in terms of the direction of the Chairman. There cannot be any doubt that the contents of the public notice itself bears a vital link in the entire chain of events commencing from grant of award to the petitioner with plaque, initiation of proceedings for withdrawal, and the decisions to withdraw the award and the plaque and to notify the public including the petitioner the decision regarding withdrawal, ultimately culminating in the paper publication wherefrom the petitioner could come to know of the impugned decision resulting in consequences, as alleged. 43. The claim of the petitioner that this Court has territorial jurisdiction is also based on the situs of affectation of rights. Mr. Krishna has referred me the decisions in National Textile Corporation Ltd. (supra) and Alchemist (supra). The reasons for upsetting the judgment and order of the Division Bench of the Calcutta High Court are recorded in paragraphs 12 and 12.1 of the decision in National Textile Corporation Ltd. (supra). It is clear that the point based whereon the Division Bench had held that part cause of action had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 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 Ors. AIR 1967 Bom. 355, The State of Maharashtra v. Sarvodaya Industries AIR 1975 Bom. 197). A Division Bench of this curt in Umasankar v. Union of India 86 CWN 355 (para 18) held inter alia that an order of dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. This view was taken bearing in mind the decisions of the Supreme Court in State of Punjab v. Amar Singh, reported in AIR 1966 SC 1313, State of Punjab v. Khemi Ram, AIR 1970 SC 214, and B.J. Shelat v. State of Gujarat, AIR 1978 SC 1109. 47. These decisions have stood the test of time and provide guidance that is invaluable. 48. To hold that service of an order or a notice on the addressee would never give rise to a cause of action to move the Court within whose territorial limits the order/notice is received, may not be reasonably sound. If service of an order or a notice is an event of substance i.e. an event which is a material, essential or integral part of the lis connected with the action that is impugned in a writ petition, there is no plausible reason as to why the same should not be construed as constituting a material, essential or integral part of the cause of action. The plea of affectation of right or interest by reason of such order/notice being served, if based on a substantial fact forming a part of the bundle of facts constituting the cause of action, would indeed be relevant for determination of the question as to whether the writ petition ought to be ente ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
