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TRIPATHI COAL BRIKETS INDUSTRIES THRU' PROP. O.P. TRIPATHI versus STATE OF U.P. THRU' PRINCIPAL SECY. & ORS.

High Court of Judicature at Allahabad

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Tripathi Coal Brikets Industries Thru' Prop. O.P. Tripathi v. State Of U.P. Thru' Principal Secy. & Ors. - WRIT - C No. 40980 of 2004 [2004] RD-AH 1191 (15 October 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

WRIT PETITION NO. 40980 OF 2004

Tripathi Coal Brikets Industries . . . . . . . . . . . . . . . . . . . . . . Petitioner

Versus

State of U.P. and others. . . . . . . . . . . . . . .  . . . . . . . . . .  Respondents

...

Hon. V.M.Sahai, J.

Hon. Tarun Agarwala, J.

(Delivered by Hon.Tarun Agarwala, J.)

The petitioner has filed the present writ petition under Article 226 of the Constitution of India praying for the following reliefs:-

"(i) Issue a writ order or direction in the nature of mandamus commanding the respondents not to apply principle of MPQ (Maximum Permissible Quantity) in respect of supply of coal to the petitioner unit by virtue of linkage order allowed by Coal India Ltd., and sponsorship issued by Director of Industries U.P.

(ii) Issue a writ order or direction in the nature of mandamus commanding the respondents to give effect of the order passed by Competent/Sponsoring Authority of State of U.P. and the linkage allowed by Coal India Ltd., in respect of supply of full linked/sponsored quantity of 3500 MT coal per month as has been held by Patna High Court passed in civil writ jurisdiction case No.2750 of 1997(R) (contained in Annexure-7 to the writ petition) and modified and affirmed by Apex Court's order passed in civil appeal no.6317 of 1998 (contained in annexure-8 to the writ petition).

(iii) Issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

(iv) Award cost of the writ petition to the petitioner.

The controversy involved in the present writ petition is that the petitioner is carrying on a Small Scale Industrial Unit and requires special smokeless coal for the manufacture of its products.  Coal India Limited by an order dated 16.12.1999 had provided a linkage order for the supply of coal through its subsidiary Bharat Coking Coal Ltd., Dhanbad. By this linkage order the petitioner was entitled to 3500 metric tons of coal. The linkage order further stipulated that the coal would be supplied by a linked coal Company on the basis of an annual sponsorship given by sponsoring authority. In paragraph 8 of the writ petition, the petitioner had contended that the Director of Industries U.P. was the competent sponsoring authority and that in the year 2002, the Director of Industries had sponsored 703 box wagons of slack coal and that in the year 2003 the Director of Industries had sponsored 546 box wagons of slack coal on the basis of the linkage order issued by Coal India Ltd.  The contention of the petitioner is that inspite of the order of Coal India Ltd. permitting lifting of 3500 MT of coal, the entire quantity was not being supplied by Bharat Coking Coal Ltd., Dhanbad and only a meager quantity was being supplied to the petitioner. The petitioner submitted that a mandamus should be issued to the respondents to supply 3500 MT of coal per month after following the judgment of the Patna High Court in Civil. Writ Case No.2750 of 1997 as modified by the Supreme Court in Civil Appeal No.6317 of 1998.

We have heard Sri Govind Krishna, the learned counsel for the petitioner, Sri Rakesh Mohan holding the brief of Sri V.K. Burman, the learned senior counsel appearing for respondent Nos.3 and 4 and the learned Standing Counsel for respondent Nos.1 and 2.

A preliminary objection has been raised with regard to maintainability of the writ petition, namely, whether this Hon'ble Court has any territorial jurisdiction to hear the writ petition inasmuch as no cause of action arose in the State of U.P., and therefore, no writ could be issued. It was contended that the linkage order clearly provided that the coal would be supplied by a linked coal Company. on the basis of the annual sponsorship or recommendation from the concerned sponsoring authority. In the present case there is no sponsorship given by the sponsoring authority, i.e., the Director of Industries, U.P. sponsoring coal in favour of the petitioner for the year 2004-05 and in the absence of any sponsorship, no direction could be issued to the respondent Nos.3 and 4 as the said respondents are outside the territorial jurisdiction of this Court. Even otherwise, no cause of action or part of cause of action had arisen in the State of U.P. at this stage and therefore, no writ could be issued to the respondents.

In order to consider as to whether this court has the territorial jurisdiction to decide this matter, it would be appropriate to consider the provision of Article 226 of the Constitution of India which reads as under :

"226. Power of High Courts to issue certain writs-

[1] Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

[2] The power conferred by clause [1] 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."

From a perusal of the aforesaid provision, it is clear that where a cause of action accrues wholly or in part within the jurisdiction of the Court, the Court will have the jurisdiction to decide the matter.

In Oil and Natural Gas Commission v. Utpal Kumar Basu and others, 1994[4] SCC-711, the Supreme Court held that the question as to whether the Court had a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition and that the necessary facts must form an integral part of the cause of action. The Supreme Court further held:-

"It is well settled that the expression " Cause of action" means that bundle of facts which the petitioner must prove, if traversed to entitle him to a judgment in his favour by the Court." And again held " 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."

Similar view was again reiterated by the Supreme Court in Navinchandra N. Majithia v. State of Maharashtra, AIR 2000 SC 2966 in which it was held:-

" 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 an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition."

 

In Lt. Col. [Mrs.] Saroj Mahanta v. Union of India and others, 2003 [3] ACJ 2511 a Division Bench of this Court held:-

"thus in view of the above we are of the considered opinion that in order to determine as to whether the writ Court has a jurisdiction to entertain a petition the pleadings in the petition have to be examined and opinion is to be formed as to whether a cause of action partly or fully has arisen or the respondents reside or have office within the territorial jurisdiction of the Court. In absence thereof if the view is taken that petition is to be entertained on merit without considering as to whether such pre-requisite conditions are there the provisions of clauses [1] and [2] of Article 226 of the Constitution would render nugatory."

The learned counsel for the petitioner had placed reliance upon a decision of the Supreme Court in M/s Kusum Ingots & Alloys Ltd. v. Union of India and another, JT 2004 (6) SCC 254.  In our view this judgment is not at all helpful to the petitioner's case. In the aforesaid case the petitioner had taken a loan from the Bhopal Branch of the State Bank of India. The bank issued a notice for the repayment of the loan under the provisions of Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act 2002. The petitioner challenged the vires of the Act by filing a writ petition before the Delhi High Court, which was dismissed on the ground of lack of territorial jurisdiction. The petitioner before the Supreme Court submitted that since the Act was made by the Parliament and that the Parliament was located at New Delhi, therefore, the Delhi High Court had the requisite jurisdiction to entertain the writ petition. The Supreme Court held that the writ petition questioning the constitutionality of a Parliamentary Act would not be maintainable in the Delhi High Court merely because the seat of the Union of India was in Delhi.

The learned counsel for the petitioner also placed reliance on the decision of this Hon'ble Court in Daya Shanker Bharadwaj vs. Chief of the Air Staff, Air Head Quarters, New Delhi and others, AIR 1988 AWC 285, in which a Division Bench of this Hon'ble Court held:-

 

" 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. I.) 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 Art. 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."

In our view the aforesaid judgment is not helpful to the petitioner's case.

In Rakesh Dhar Tripathi v. Union of India, AIR 1988 Alld. 47 a Division Bench of this court held that all the respondents were residing at New Delhi and that the cause of action arose in New Delhi, the mere fact that the petitioners residence was at Allahabad would not entitle him to file a writ petition at Allahabad. The court held that it did not have the territorial jurisdiction.

In Krishna Kumar Bhargava v. Metropolitan Magistrate Bombay, AIR 1986 ALJ 1093, a Division Bench  of this Court held:-

"that the High Court cannot exercise its powers under Article 226 of the Constitution of India, if the cause of action either wholly or in part has not arisen within it s territorial jurisdiction."

In view of the aforesaid, it is clear that this Court has the jurisdiction to issue writs, provided, the cause of action or part of cause of action arose in the State of U.P. In the present case, the petitioner's cause of action would arise only if a sponsorship order had been issued by the Director of Industries in his favour. In the present case, we find, that no such sponsorship order had been issued by the Director of Industries for the year 2004-05. Consequently we are unable to issue any writ at this stage to the respondent Nos.3 and 4 who are residing outside the territorial jurisdiction of this Court.

The learned counsel for the petitioner submitted that he had made a representation to respondent Nos.3 and 4 which is still pending and therefore, this Court may issue a direction to the said respondents to decide the representation of the petitioner.

In Chabi Nath Rai v. Union of India and others, 1997[1] UPLBEC-236 a Division Bench of this Court held-

" The mere fact that he sent a representation from Allahabad and the decision on his representation was communicated at Allahabad did not give any cause of action at Allahabad.  In Special Appeal No.300 of 1995, Sipoy Ranchhor Singh v. Union of India and others, it was held that - " merely because the delinquent served the sentence in district Jail, the cause of action does not arise at the place where he is serving the sentence, but it is the place where the person is tried, sentenced and convicted. The Court declined to issue a writ of mandamus to decide the representation by the Chief of Army Staff at New Delhi."

In view of the aforesaid, no such direction could be issued. The petitioner has not been able to satisfy the Court as to whether any cause of action has arisen in the State of U.P. and therefore, we are 1`unable to issue any writ in the exercise of our writ jurisdiction under Article 226 of the Constitution

Accordingly, the writ petition fails and is dismissed summarily. However, there shall be no order as to cost.

Dated: 15.10.2004

AKJ.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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