Decided on October 04,1996


Referred Judgements :-



B.M. Mitra, J. - (1.)The writ petitioner has been carrying on business under the name and style of 'M/s. Mukherjee & Company' having its office in P.O. Bongon, District North 24 parganas, in the State of West Bengal. The petitioner as well as the sister concern are stated to have been engaged in dealership of Krishi Brand pump-set and Krishi Engines Limited in Hyderabad in Andhra Pradesh, Maharashtra and also in the West Bengal. The petitioner applied to the respondent No.5 namely, Kerala Agro Machinery Corporation Limited, a Government of Kerala Undertaking in District of Ernakulam being situate in the State of Kerala. Thereafter, an application was forwarded on 29.11.88 to the Chairman of the aforesaid Government of Kerala Undertaking for appointment of dealership. The said respondent No.5 vide his letter dated 6.12.88 duly informed the petitioner about appointment already being given in favour of one dealer in West Bengal and it has been further submitted that if the services of the petitioner would be required at a later stage, the same would be considered. The writ petitioner following such intimation applied for additional parallel dealership of KAMCO Power Triller. Inspite of communication that the respondent has no idea of appointing any alternative dealer for marketing the same in West Bengal, the petitioner has alleged to have made arrangements in anticipation for acceptance of dealership. The same has been followed by an insertion in a daily newspaper in West Bengal 'Ajkaal' circulated on 20.4.92 that the respondents No.2 to 5 have allowed alternative dealer for joint marketing parallely throughout West Bangal by appointing respondents No. 6 and 7. The petitioner felt aggrieved by such appointments made in favour of alternative candidates and has prayed for issuance of a Writ of Mandamus seeking direction upon respondents No.2 to 5 to issue dealership in favour of the petitioner company for distribution.
(2.)From the perusal of the Cause Title of the connected writ petition, it appears that the relief which has been prayed for against the respondents No.2 to 5 are all based on and situated in the District of Emakulam, in the State of Kerala. The question that has arisen and entire debate has been centred- round the controversial question as to whether this High Court has jurisdiction to issue the Writ of Mandmus against the aforesaid respondents whose offices are situated in the State of Kerala. From the perusal of the writ petition further there does not appear any further whisper by way of recital about cause of action. It is not out of context to make a reference about Sec. 20 of the Code of Civil Procedure which contemplates in terms of clause (a) that suit shall be required to be filed and/or instituted within the local limits of jurisdiction of the concerned Court within which the defendants reside. To probe further with a view to make an in depth study of the said provision, this Court is made to ponder over the meaning of the word 'cause of action'. In terms of the definition as laid down in Stroud's Dictionary "Cause of action is entire set of facts that give rise to an enforceable claim, the phrase comprises every fact which, if traversed the plaintiff must prove in order to obtain judgment". It becomes salient to further refer to the comments made in the said Dictionary where 'cause of action' has been contemplated to be different materially from within 'action'. The cause of an action is that which prompts or relates to its basis as distinct from the matter of procedure prior to action being brought. This Court has also been attempted to be enlightened about the connotation of the expression 'cause of action' as contemplated in Corpus Juris Secundun, page 982 where a cause of action has been briefly defined, in a general sense, as a claim which may be enforced. The projection has been made about combination of facts which given rise to or entitled to a party to sustain an action. In the circumstances of those facts which give a party a right to judicial interference or relief in his behalf, the entire set or state of facts that give rise to an enforceable claim. This Court has also the occasion to go through that portion of definition of cause of action as relied upon in a recent Supreme Court decision in the case of O.N.G.C. Vs. Utpal Kumar Basu & Others, reported in 1994(4) SCC, page 711) wherefrom it appears that Apex Court has relied on the definition of Watson, "The cause of action has no relation whatever to the defence which may be set up by the defendant not does it depend upon character of the relief prayed for by the plaintiff. It refers entirely to the ground setforth to the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asked the Court to arrive at a conclusion in his favour". Therefore, in determining the objection of lack of territorial jurisdiction the Court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon enquiry as to the correctness or otherwise of the said facts. Thus, the question of territorial jurisdiction must be decided on the facts pleaded. In the said cited decision, mere fact that the petitioner company having its registered office at Calcutta had read in Calcutta newspaper the O.N.G.C s advertisement inviting tenders at Delhi for work to be executed in Gujarat and in response to the said advertisement if representation is made from Calcutta and non-consideration of the same by Undertakings having their offices at Delhi or place of work executed in Gujarat, the Supreme Court held that the same would not constitute integral part of a cause of action. In the present case, advertisement was circulated in a Delhi newspaper and in response to the same representation was made and the concerned authority being situate in the State of Kerala intimated to the petitioner having its office in West Bengal that it would not be possible for them to consider their offer unless there is further requirement of an alternative contender. Therefore, the decision has been taken by the Government Undertakings of Kerala, having their offices situate in the State of Kerala in respect of the petitioner which is a West Bengal based Business Organisation and if the said petitioner is aggrieved normally apart from applicability of section 20 of the Civil Procedure Code, the aforesaid decision tends to suggest that the same should be filed in such High Courts within whose territorial jurisdictions action has been taken as a result of which the petitioner has felt aggrieved. The perusal of the pleadings contained in the writ petition do not disclose that any part of cause of action has arisen in the State of West Bangal. A further reference may be made to the decision in the case of Aligarh Muslim University ... Appellant Vs. Binay Engineering Private Limited & Another... Respondents, reported in 1994, Volume 4, SCC, page 710 where the contracts executed and construction work was carried out at Aligarh in Uttar Pradesh and the same having provided for Arbitrator to be appointed by them at Aligarh who was to function there, the Supreme Court had held that no part of cause of action arose within the territorial jurisdiction of Calcutta High Court and therefore the proceedings were held to be unsustainable. A further reference may be made to the case of State of Rajasthan Vs. Swaika Properties, reported in A.I.R. 1985, Supreme Court, page 1289 where in respect of an acquisition made in Rajasthan, a notice was served on the owner in West Bangal and service of notice on the owner in West Bengal has not been held to give rise to a cause of action in West Bengal. The concept of 'Cause of action' has been adopted by the amendment of 1963 by insertion in the provisions under Art. 226 of the Constitution but notwithstanding that the Government or Authority is located outside the territories of the State, the amendment has not (sic) the inhered Limitation of the Writ Court that it cannot be enforced against a person or authority who is not amenable to his jurisdiction not being physically present within the territorial jurisdiction of the High Court. The same view has been expressed by D. Basu, J. in the case of Samarendra Nath Roy & Others... Petitioners Vs. State of West Bengal & Others... Respondents, reported in 1971 C.W.N., page 592. Even after insertion of clause 1(a) by the Constitutional Amendment Act of 1963, now re-numbered as clause 2, a writ petition cannot lie in any High Court unless the authority against whom the writ is sought is within the territorial jurisdiction of the concerned Court. At least a part of cause of action must arise thereunder. Even in the case of Motipur Sugar Factor... Petitioner Vs. Joint Secretary, Government of India... Respondent, reported in A.I.R. 1984, Calcutta, page 240 where inspite of taking over of the affairs of the Sugar Factory situate in the State of Bihar and the order was passed by the Central Government in Delhi and copy of the same was forwarded to the Managing Director at Calcutta, this Court held,"It cannot be said that part of cause of action arose at Calcutta." Though a catena of cases have been referred exhaustively and relied upon and from the plethora of which some relevant judgments are referred to and cited including one of the cases of Modern Malleable Casting Works Limited Vs. M/s. Star Iron Works Limited, reported in 1995, Volume 2, C.H.N., page 433 to which the present presiding Judge in this proceeding was a party and it was held therein that if the entire bundle of facts occur beyound the territorial jurisdiction of the High Court, then mere receipt of a communication within the jurisdiction will not confer a jurisdiction on that High Court to entertain a writ petition.
(3.)That in the backdrop of placement of reliance and citation of some of the cases as referred to the entire pleading as taken out in the writ petition has been attempted to be comprehended. It has already been observed that the office of the respondent No.1 is, situate in New Delhi but the petitioner felt aggrieved because of the actions of respondents No.2 to 5 whose offices are all situate in the State of Kerala. The petitioner is stated to have suffered injury and felt aggrieved because of the appointment given in favour of the respondent No.7 and the said action has been taken by the concerned respondent having his office at Kerala. At no point of time, here, in the present case, any communication was made by concerned respondents who were the decision making authorities intimating the writ petitioner that their plea has not been considered. Only, at present, at a given point of time it was communicated to the petitioner that if alternative or additional dealer would be required, then the petitioner's claim might have been taken into account. The allegatic centered-round, on the footing that in supersession of the said stand taken by the concerned respondents, all located in the State of Kerala, they have appointment of dealership in favour of respondent No.7 in supersession of the alleged claim of the petitioner. Therefore, the entire bundle of facts giving rise to the appointment made in favour of the respondent No.7 been pursuant to the decision making process arrived at in the State of Kerala. No part of the cause of action seems to have arisen in the State of Kerala and as such this Court finds it not only difficult but impossible to locate any part of the constituent element of cause of action to have arisen within the State of West Bengal and as such this High Court cannot have nay territorial jurisdiction over the controversy in question. This Court has taken serious note of recent trends of decision of the Apex Court and from the guidelines as laid down there this Court does not find that the present case can fit in any way with the ratio of law as expounded in the cited decisions. This Court has carefully read the entire writ-petition and if a Government of Kerala Undertaking takes a decision as a result of which the petitioner has felt aggrieved, the same has arisen at the instance of the concerned respondents who are functioning from Kerala. The work proposed to be done by the appointees, outside the jurisdiction of this High Court, mere publication of a news item in a local newspaper in the State of West Bengal does not and cannot confer jurisdiction upon this Court. It is also necessary to emphasis that the term 'subject matter' does neither mean cause nor action. An action is a prosecution in a Court of Justice of some demand of assertion of right. The word 'action' constituted according to realities and not sophistication includes a claim which is for ail intents and proposes action in law against the State in a Court specially created to hear it. The position would have certainty been different if the order was passed by and authority within the jurisdiction of this Court or such or any order was served within such jurisdiction. Here, in this case, neither the order was served by any authority within the jurisdiction of this High Court nor the same was served on somebody who is residing within the jurisdiction and such service of communication is the resultant effect of statutory violation or by way of patent violation of the known principles of natural justice. Here, in this case, somebody has been given the benefit by an authority, outside the territorial limit of this jurisdiction and if the petitioner is to pursue any remedy, the petitioner must cry to explore such remedy by challenging the action on the authority or authorities which are situate in the State of Kerala. In absence of any indicia being fulfilled which may constitute either the entire cause of action or a part of the cause of action, the petitioner cannot have a right to pursue the remedy before this High Court. As such, the preliminary objection about insertion or lack of territorial jurisdiction is sustained and the writ petition stands dismissed on the preliminary ground for want of jurisdiction. However, the same will not preclude the writ petitioner to approach the proper Court or Forum for appropriate relief having territorial jurisdiction in this matter. Petition dismissed. ( Previous Hitlist Next )

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