JUDGMENT
A. Kabir, J.:— This appeal is directed against the order dated 8th February, 1991, passed by a learned Single Judge of this Court disposing of the writ petition filed by M/s. Jharia Talkies & Cold Storage Private Ltd. and another, in which an order passed by the Collector, Dhanbad, in a proceeding, under the Bihar Public Land Encroachment Act, 1956, hereinafter referred to as the “1956 Act” for short, had been challenged.
2. By judgment dated February 8, 1991, N.K Mitra, J. directed delivery of possession of the disputed land to the writ petitioner within two weeks from the date of communication of the order.
3. The present appeal was preferred on March 4, 1991, and the matter was moved before the learned Chief Justice and no steps were taken by the appellant herein to obtain stay order till actual delivery of possession back to the writ petitioner was effected in terms of the judgment.
4. Order of assignment was made by the learned Chief Justice on September 10, 1991, and the appeal was heard on September 17, 1991, September 24, 1991, September 25, 1991, and on September 27, 1991, when hearing was concluded, and judgment was reserved.
5. At the very outset, it was submitted on behalf of the appellant that the writ petition itself was not maintainable as this Hon'ble Court had no territorial jurisdiction to entertain the same, since the order impugned in the writ petition is “an order”, passed by the Collector, Dhanbad, Bihar, in a proceeding under the 1956 Act. Accordingly, the said submission requires to be considered first before we proceed to the merits of the appeal.
6. For the said purpose, it is necessary for us to set out the facts, leading to the filing of the writ petition.
7. The writ petitioner/respondent is a Company, incorporated under the Companies Act, 1956, and is the owner of Bihar Talkies. In 1948, the sons of Raja Shib Prasad Singh sold their leasehold rights over the lands in question to the Selected Jharia Colliery Company Limited. In 1950, out of the said leasehold lands, the said company let out 3.65 bighas of land to Jharia Talkies and Cold Storage Private Limited, the writ petitioner/respondent herein. Thereafter, the writ petitioner/respondent obtained permission from the State of Bihar to construct “a public hall”, in the leasehold premises and such permission was duly granted by the State of Bihar by its letter dated 29th November, 1950. Pursuant to the grant of such permission, the cinema hall, namely, Jharia Talkies, was constructed and licence was granted by the concerned authorities, to exhibit cinema shows, in the said cinema hall.
8. It appears that after the Vesting of estates, consequent upon the enactment of the Bihar Land Reforms Act, 1947, the State of Bihar, filed a suit, being Title Suit No. 11 of 1961, against the company for khas possession of the leasa hold lands and the same was decreed in favour of the State of Bihar. An appeal was preferred against the said decree, being F.A No. 302 of 1963, by the writ petitioner/respondent herein.
9. During the pendency of the appeal, a proceeding was commenced by the State of Bihar under the 1956 Act being BPLE Case No. 42 of 1973- 74, against the writ petitioner/respondent in 1973, alleging encroachment on certain portions of Plot No. 1013 of mouza—Jharia.
10. Before the said BPLE Case No. 42 of 1973-74 could be decided, the above-mentioned appeal, being F.A No. 302 of 1963, came up for decision before the Patna High Court. During the hearing of the appeal, it was brought to the notice of the Patna High Court that with the enactment of the Coking Coal Mines (Nationalisation) Act, 1972, the right, title and interest in the lands, in question vested in Bharat Coking Coal Ltd., by virtue of a notification published by the Central Government. Accordingly, the Patna Hight Court, while disposing of the appeal, observed as follows:—
“During the pendency of this appeal another legislation was passed by the Parliament and that was Coking Coal Mines (Nationalisation) Act, 1972, which provided for acquisition and transfer of the right, title and interest of the owners of the Coking Coal Mines, as specified, in the 1st Schedule. It is not in dispute that on coming into force of this Act, the right, title and interest of the defendant, if any, whatever those might be in the demised land, vested in appellant No. 1(a) namely, the Bharat Coking Ltd., by a notification promulgated by the Central Government. This position is undisputed and it defeated the plaintiff and the defendant both.
In view of the above provision, this appeal apparently has become infructuous, as the right, title and interest claimed on the basis of the impugned leases now stand rescinded by the Central Legislation.”
11. It was, therefore, held in BPLE Case No. 42 of 1973-74, that in the light of the order passed by the Patna High-Court in F.A No. 302 of 1963, it was no longer open to the State of Bihar to continue with the said proceeding, and the same was accordingly dropped by the Deputy Collector, Land Reforms, Dhanbad, by his order dated 10th June, 1982.
12. The State of Bihar, however, preferred an appeal against the said order dated 10th June, 1982, before the Deputy Commissioner-cum-Collector, Dhanbad, and the said appeal was registered as M.R Appeal No. 5/83. By an order dated 5th February, 1985, the matter was remanded to the Deputy Collector, Land Reforms, Dhanbad, for the purpose of ascertaining on the materials on record as to whether the land in question was “a public land” or not. While the matter was pending, the appellant herein was added as a party to the said proceeding pursuant to its application dated 22nd December, 1988. Thereafter by order dated 30th January, 1989, the Deputy Collector, Land Reforms, Dhanbad, directed the writ petitioner to make over possession of the building to the appellant herein, and in default, the appellant was empowered to take forcible possession thereof.
13. The writ petitioner preferred an appeal against the said order before the Deputy Commissioner, Dhanbad, on 20th February, 1989, and the same was registered as BPLE Case No. 16/89. By his order dated 2nd June, 1990, the Collector, Dhanbad, dismissed the said appeal upon holding inter alia that “the land in question “was” a public land” within the meaning of the 1956 Act.
14. The writ petition, out of which this appeal arises, was filed against the aforesaid order of the Collector, Dhanbad.
15. Appearing for the appellant, Mr. Prodosh Mullick, led by Mr. Anindya Mitra submitted that as “no part of the cause of action” for the writ petition had arisen within the State of West Bengal, this Court had no jurisdiction to entertain or to hear the matter, merely because the appellant was a subsidiary of Coal India Limited, which has its registered office within the jurisdiction of this Court, as has been pleaded in paragraph 70 of the writ petition.
16. Mr. Mullick denied that any part of the cause of action had arisen within the jurisdiction of this Court, as has been claimed in paragraph 71 of the writ petition. He further submitted that the Head Office of the appellant was at “Koyla Bhawan”, Koyla Nagar, in Dhanbad, in the State of Bihar.
17. He further added that by virtue of the Coking Coal Mines (Emergency Provisions) Ordinance, later replaced by the Coking Coal Mines (Emergency Provisions) Ordinance, later replaced by the Coking Coal Mines (Emergency Provision) Act, 1971, the Central Government took over the management of all coking coal mines/coke oven plants. The appellant herein, which was constituted on 1st January, 1972, was appointed by the Central Government, as custodian of coking coal mines/coke oven plants. Subsequently, by virtue of the Coking Coal Mines (Nationalisation) Act, 1972, all coking coal mines/coke oven plants were nationalised, including those of the writ petitioner free from all encumbrances. Subsequently, by a notification issued by the Central Government, the right, title and interest of coking coal mines/coke oven plants were transferred to and vested in the appellant herein free from all encumbrances.
18. It was also submitted that, in view of the above circumstances, the appellant was added as a party in the appeal preferred by the writ petitioner in the Patna High Court, being F.A No. 302 of 1963, against the decree passed in favour of the State of Bihar, in Title Suit No. 11 of 1961. While dismissing the appeal, the Patna High Court by its judgment and order dated 16th January, 1979, held that the right, title and interest claimed by the writ petitioner/respondent herein on the basis of the lease granted in its favour, stood reseinded under the Coking Coal Mines (Nationalisation) Act, 1972, and by virtue of the provisions of the said Act, the right, title and interest, if any, of the writ petitioner herein in the demised land, vested in the appellant herein, namely, Bharat Coking Coal Limited, by a notification promulgated by the Central Government. It was also pointed out that in the aforesaid judgment dated 16th January, 1979, the Patna High Court had observed that the said position was undisputed and defeated the claim of both the plaintiff and the defendants, in the suit.
19. Mr. Mullick further submitted that having regard to the findings of the Patna High Court in the appeal preferred by the writ petitioners it was no longer open to this Court to reopen the matter in an application under Article 226 of the Constitution. He also submitted that while dismissing the appeal, the Patna. High Court had granted leave in the writ petitioners herein to seek remedy, if any, before the Commissioner of Payment, in accordance with the provisions of the Coal Mines (Nationalisation) Act of 1972.
20. Mr. Mullick submitted that not only had no part of the cause of action had arisen within the State of West Bengal, but the properties in question were situated in the State of Bihar, and various proceedings in respect thereof had been taken in Bihar up to Patna High Court, which had arrived at certain definite findings regarding the right of the parties to the properties in question. He further submitted that even the order sought to be impugned in the writ application had been passed by the Collector, Dhanbad, in a proceeding under the Act of 1956, a Legislation, passed by the Bihar legislature.
21. Mr. Mullick submitted that neither the Collector, Dhanbad, whose order was under challenge, nor the State of Bihar, had been made parties, in the writ petition, deliberately.
22. Mr. Mullick submitted that, as this Court had no territorial jurisdiction to entertain the writ application, the same was liable to be dismissed and the order of the learned Single Judge was liable to be set aside on the said ground alone. Other submissions were also made to which we shall refer, if necessary.
23. Appearing for the writ petitioners/respondents in this appeal, Mr. Subrata Roychowdhury, Dr. Tapas Banerjee appearing with him, submitted that the writ application was maintainable, even if no part of the cause of action had arisen within the State of West Bengal, in view of the provisions of Clause (1) of Article 226 of the Constitution.
24. Mr. Roychowdhury submitted that the writ application was one under Article 226(1) of the Constitution, and it was, therefore, immaterial, as to whether any part of the cause of action arose within the State of West Bengal or not, or whether the properties in question were situated outside the State of West Bengal.
25. Mr. Roychowdhury submitted that as the appellant had its Regional Office in Calcutta and was also a subsidiary of Coal India Limited, which had its office within the State of West Bengal, the writ petitioner/respondents were entitled to move this Court under Article 226(1) of the Constitution.
26. Mr. Roychowdhury then submitted that, as had been averred in the writ petition, the appellant herein, under the order and dictates of Coal India Limited, had issued a notification on 21st February, 1980, in a daily newspaper, “Janamat”, to the effect that the property, in dispute was the property of the appellant and no one should deal with the same.
27. In this connection, Mr. Roychowdhury referred to the said notification, which had been made Annexure “G” to the writ petition, in support of his aforesaid contention. Mr. Roychowdhury pointed out that in the, notification itself, it had been mentioned that the appellant was a subsidiary of Coal India Limited and was, therefore, working according to its dictates.
28. Mr. Roychowdhury further submitted that the writ petition was, therefore, competent and this Court had ample jurisdiction to entertain the same.
29. Elaborating his aforesaid submissions, Mr. Roychowdhury submitted that in the case of Collector of Customs, Calcutta v. East India Commercial Company Ltd. Calcutta, reported in AIR 1963 SC at page 1124, it had been held that when the High Court had no territorial jurisdiction over an appellate authority it could not issue a writ to the original authority, even if such original authority was within the jurisdiction of the High Court, in view of the doctrine of merger.
30. Mr. Roychowdhury submitted that in another case, that is, in the case of Lt. Col. Khajoor Singh v. Union Of India & Another, reported in AIR 1961 SC at page 532, the Supreme Court also held that Article 226 of the Constitution, as it then stood, did not refer anywhere to accrual of cause of action and to the jurisdiction of the High Court depending on the place where the cause of action accrued. The Supreme Court further observed that the concept of cause of action could not be introduced in Article 226, for by doing so, Courts would be doing away with the express provisions contained, therein which required that the person or authority to whom the writ was to be issued should be resident in or located within the territories over which the High Court had jurisdiction.
31. Mr. Roychowdhury submitted that the views expressed by the Supreme Court in the aforesaid cases, led to the enactment, of the Constitution (Fifteenth Amendment) Act, 1963, whereby clause (1A) was introduced in Article 226 of the Constitution in order to enable the High Court to issue directions, orders or writs to any Government, authority or person in relation to the territories, within which the cause of action, “wholly or in part” arose, notwithstanding that the seat of such government or authority or the residence of such person was not within those territories.
32. Mr. Roychowdhury added that clause 1A of Article 226 was subsequently renumbered as Clause (2) by the Constitution (Forty Second Amendment) Act, 1976, with the object of widening the jurisdiction of the High Court, under Article 226 of the Constitution.
33. According to Mr. Roychowdhury, the powers under Clause (1) of Article 226 of the Constitution were sufficiently wide to enable the High Courts to exercise jurisdiction over all the territories in India, even without introduction of Clause (2) in Article 226 of the Constitution.
34. In support of his above contention, Mr. Roychowdhury referred to a passage from Shell's “Principles of Equity” (27th Edition) which is reproduced hereinbelow:—
“Although at the present day equity is not confined to acting in personam, still its jurisdiction is primarily over the defendant personally. It is therefore immaterial that the property in question is not within the reach of the Court, provided that the defendant himself is within the jurisdiction, or is capable of being served with the proceedings outside the jurisdiction, and that there is some equitable right which the plaintiff could have enforced against him had the property been here. Accordingly in the leading case of Perm v. Lord Baltimore, specific performance was ordered of an agreement relating to the boundaries of land in America, the defendant being in this Country”.
35. Mr. Roychowdhury submitted that in the case of Perm v. Lord Baltimore, the English Courts while exercising equitable jurisdiction, directed specific performance of an agreement relating to the boundaries of a plot of land situated in America, although, the defendant was residing in England.
36. Mr. Roychowdhury submitted that as Equity essentially acts in personam, and since the principal respondents in the writ petition, M/s. Bharat Coking Coal Limited, the appellant in the present appeal, and M/s. Coal India Ltd., have their offices within the jurisdiction of this Court, this Court had ample jurisdiction to entertain the writ application.
37. In support of his contention that this Court had jurisdiction to entertain the writ application under the provisions of Clause (1) of Article 226 of the Constitution, Mr. Roychowdhury referred to the following decisions:—
(1) Pottery Mazdoor Panchayat v. Union of India, reported in 1989 (1) CLJ, at page 324.
(2) Bharat Coking Coal Ltd. v. Aman Minerals Corpn., reported in AIR 1985, Calcutta at page 44.
(3) Industrial Fuel Marketing Co.… v. Union Of India…., reported in AIR 1983, Calcutta, at page 253.
(4) Union of India v. Hindusthan Aluminium Corpn. Ltd., reported in AIR 1983, Calcutta at page 307.
38. Mr. Roychowdhury submitted that in all the aforesaid cases, this Court was considering the maintainability of writ applications, where the cause of action had arisen outside the territorial jurisdiction of this Court.
39. In the said cases, this Court, on consideration of the provisions of Clause (1) of Article 226 of the Constitution, held that since the principal respondents were subject to the territorial jurisdiction of this Court, the writ applications were maintainable. Mr. Roychowdhury submitted that the present case was in pari-materia with the above-mentioned cases and, accordingly, this Court had jurisdiction to entertain the same, although, the cause of action may have arisen outside the territorial jurisdiction of this Court.
40. We have carefully considered the submissions made on behalf of the respective parties and the various decisions cited before us, on the question as to whether this Court had jurisdiction to entertain the writ application.
41. Admittedly, prior to the Fifteenth Amendment, the only factor was to be considered for the purpose of asceratining as to whether the High Court had jurisdiction to entertain the writ petition was whether the persons or authorities, to whom the court was asked to issue writs, were within the limits of its territorial jurisdiction. As submitted by Mr. Roychowdhury, the said position was altered by virtue of the Fifteenth Amendment of the Constitution whereby Clause (2) of Article 226 was sought to be introduced. The High Court is now empowered to issue directions, orders, or writs to any government, authority or person when the cause of action, either wholly or in part, arises within the territories in relation to which the High Court exercises its jurisdiction.
42. Accordingly, in exercising jurisdiction under Article 226 of the Constitution, as it now stands, the High Court has to take into consideration two relevant factors in order to determine whether it has jurisdiction to entertain the same.
43. Firstly, the High Court has to consider whether the persons or authorities, to whom orders and writs are to be issued, are situated within the territories, over which the High Court exercises jurisdiction.
44. Secondly, the High Court has to consider whether the cause of action in the application, either wholly or in part, arose within the territories over which it exercises jurisdiction.
45. In this context, the observations of M.M Dutt, J. sitting with Monoj Kumar Mukherjee, J. (as Their Lordships then were), in the case of Union of India v. Hindusthan Aluminium Corporation Limited (supra) should be relevant for us to take into consideration.
46. In paragraph 24 of the said judgment, Their Lordships observed as follows:—
“Under Article 226(2) of 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. 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 and 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. 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 this Court.”
47. If either of the conditions are satisfied, the High Court has jurisdiction to entertain the writ application.
48. Applying the aforesaid tests, in the present case, it will be evident that although, admittedly no part of the cause of action arose within the jurisdiction of this Court, both M/s. Bharat Coking Coal Ltd. and M/s. Coal India Limited, of which M/s. Bharat Coking Coal Ltd. is a subsidiary, have their offices within the jurisdiction of this Court, and we have to consider whether that by itself was sufficient to entitle the writ petitioner to move this Court against an order passed by the Collector, Dhanbad, in a proceeding under the Act of 1956, involving properties, within the State of Bihar.
49. We are of the view that having regard to the provisions of Clause (1) of Article 226 of the Constitution, this Court had jurisdiction to entertain the writ petition, since the respondent No. 3 in the writ petition, M/s. Bharat Coking Coal Ltd., has its offices within the jurisdiction of this Court, although, no part of the cause of action had arisen, within the State of West Bengal.
50. It has been contended in the writ petition, that the right to file the, writ petition in this Court accrued when M/s. Bharat Coking Coal Ltd. was added as a party to the proceedings before the Collector, Dhanbad and since the office of the appellant is also situated in Calcutta, such contention appears to be correct.
51. In fact, in the case of Pottery Mazdoor Panchayat v. Union of India (supra), despite the fact that the concerned employees were employed at the material time in one of the refractories of the Company situated in Jabalpur, Madhya Pradesh, a Division Bench of this Court held that the relief in the writ petition had been rightly sought for in this Court, as the head office of the company was situated in Calcutta.
52. Technically speaking, in view of the provisions of Clause (1) of Article 226 of the Constitution, this Court in our opinion, had jurisdiction to entertain the connected writ application, but whether any relief could be granted therein, is altogether a different matter.
53. Notwithstanding the fact that we are of the opinion that this Court had jurisdiction to entertain the writ petition, we cannot lose sight of the fact that the order impugned in the writ petition is that of the Collector, Dhanbad, and that at one stage the matter had gone up to the Patna High Court for determination of a very vital issue which has a material bearing in this case. Judicial propriety demands that in such a situation the writ petitioner should have gone before the Patna High Court against the order impugned in the instant writ petition.
54. In our view, since in F.A No. 302 of 1963 the Patna High Court had occasion to deal with a vital aspect of the matter and had arrived at the definite finding that the right, title and interest in the property in question had vested in M/s. Bharat Coking Coal Ltd., it would not be proper on our part to interpret the provisions of the Bihar Public Land Encroachment Act, 1956, and to go into questions as to whether the appellant herein had been correctly impleaded as a party to the proceedings under the aforesaid Act by the Collector, Dhanbad. If we are to consider the provisions of the aforesaid Act, we will incidentally also have to deal with the question as to whether the property or the mining lease vested in the State of Bihar under the provisions of the Coking Coal Mines (Nationalisation) Act, 1972, which we are not inclined to do in view of the findings of the Patna High Court in F.A No. 302 of 1963.
55. In our view, the aforesaid questions should have been raised before the Patna High Court, which had earlier dealt with the matter, and the learned Single Judge should have directed accordingly.
56. Consequent upon the view taken by us, it is not necessary for us to deal with the other submissions made on behalf of the respective parties and this appeal succeeds on the limited point referred to above.
57. The judgment and order passed by the learned Single Judge is, accordingly, set aside and the writ petition is dismissed, with liberty to the writ petitioner/respondents to move the Hon'ble Patna High Court against the order which has been impugned in the writ petition before this Hon'ble Court.
58. We, however, make it clear that we have not gone into the merits of the case and it will be open to the parties to agitate all the points taken in the connected writ petition and argued before us, before the appropriate forum.
59. Before parting, we are of the view that since the appeal has been preferred by the appellant on March 4, 1991, against the judgment delivered on February 8, 1991, and the writ petitioner got back possession of the Cinema Hall in terms of the said judgment and no steps were taken on behalf of the present appellant Bharat Coking Coal Limited to prevent the same, and in the special facts of this case, the parties should maintain status quo in respect of possession of the Cinema Hall for a period of one month from date to enable the writ petitioner to move the appropriate forum pursuant to our aforesaid observations.
60. Appeal is, thus, disposed of.
There will, however, be no order as to costs.
On the prayer of the learned Advocates, let plain copy of operative part of this judgment, countersigned by the Assistant Registrar (Court), be given to the learned Advocates for the parties on their usual undertaking.
P.K Mukherjee, J.:— I agree.
Appeal disposed of.
A.R
Article 226 of the Constitution.