TaxTMI 
TaxTMI 
TaxTMI 
2014 (7) TMI 1386
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....his order dated 07.01.2014 issued under clause 17(11) of the Akademi Constitution has passed the following orders in respect of the General Council Members mentioned below." The notice contained names of number of persons who had either been censured or otherwise penalised. In respect of Sri Mukul Panwar, one of several persons who were proceeded against, the following punishment had been awarded: Censure for all times. Recovery of loss to the Akademi due to his unauthorised visit to various countries. Withdrawal of National Award to his brother Pankaj Panwar including plaque and recovery of Award money. Publication in National Print media for information to public at large. 2. The challenge in this writ petition dated February 13, 2014 presented by Sri Pankaj Panwar is to that part of the public notice whereby he has been visited with penalty, viz. withdrawal of national award including plaque and recovery of award money and information thereof to the public, without being called upon to participate in any proceedings that might have been drawn up. 3. Preliminary objection to the maintainability of this writ petition has been raised by Mr. Krishna, learned counsel for the Akad....
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....tates that he was astonished to find a publication made in various English National Newspapers viz. the Hindustan Times and others from where he acquired knowledge that while purporting to implement a punishment against one Mukul Panwar, it had been announced that the National Award granted to the petitioner, including the plaque would be withdrawn and the award money granted to the petitioner along with the national award be recovered from him. It transpires from such publication that the petitioner was erroneously construed to be the brother of such Mukul Panwar against whom the punishment was awarded. In this regard it is specified that Mukul Panwar is not the uterine brother of the petitioner and as such does not fall within the direct relations of the petitioner. The petitioner suffered the tremendous damage to his reputation at his present place of residence as his image and reputation in the estimation of the persons knowing him has been lowered and irreparable loss has been caused to the character of the petitioner. It is stated that since the newspapers where the publications have been made have a very wide circulation throughout all the States of this country including We....
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....Court. The petitioner has suffered the tremendous loss of reputation within the jurisdiction of this Hon'ble Court which has prompted the petitioner to challenge the impugned publication. Due to the above circumstances the cause of action for instituting the instant writ petition has arose within the territorial jurisdiction of this of this Hon'ble Court. 10. Written notes of arguments were filed by Mr. Krishna, where it is contended there that these pleadings are not sufficient to hold that at least a part of the cause of action has arisen in West Bengal for invocation of this Court's writ jurisdiction. While countering the claim of the petitioner that his reputation has taken a beating as a result of the newspaper publication, an argument has been advanced that "publication of advertisements do not create a cause of action for preferring writ petitions under Art. 226". It also appears from such written notes that two other persons, similarly penalized like the petitioner, had invoked the jurisdiction of the Allahabad High Court but faced with the objection of lack of territorial jurisdiction, the writ petitions were withdrawn and leave obtained to move the appropriat....
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....judges for whom it has been a matter of great pride to adorn the Bench, as well as the high attainments and rich traditions this Court has been known for. Now that heavy reliance has been placed on the said decisions by the respondents and a tendency to browbeat the Court based thereon is discernible to ensure that proceedings progress as per their desire, the urge to share the thoughts that have reverberated through the long corridors of the Calcutta High Court over the years is felt before the preliminary objection is decided. 14. The discussion must begin with a caveat. It is indeed not within my province to answer the questions that are posed, for, it is well known that a High Court judge would not be justified either in law or on considerations of judicial discipline and comity to show disrespect to any order or direction made by the Supreme Court or to question the propriety of such order/direction, either when the said judge is called upon to apply the law laid down therein for deciding an issue before him 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....
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....e Constitution filed by the respondents, issued a rule nisi thereon requiring ***** and passed an ad interim ex parte prohibitory order, restraining them from taking any steps.***** We are distressed to find that the learned single Judge despite a long line of decisions of this Court starting from Siliguri Municipality v. Amalendu Das (1984) 2 SCC 436: (AIR 1984 SC 653) deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking, should have passed the impugned orders in the manner that he did. It seems that the pronouncements of this Court have had little effect on the learned single Judge. ***** 9. It is to be deeply regretted that despite a series of decisions of this Court deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking, the learned single Judge should have passed the impugned ad interim ex parte prohibitory order the effect of which, as the learned Attorney General rightly complains, 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 petit....
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....order of the Calcutta High Court restraining Siliguri Municipality from recovering a graduated consolidated rate, the Supreme Court in Amalendu Das (supra) observed that a levy or an impost does not become bad as soon as a writ petition is instituted assailing the levy and normally the High Court should not, as a rule, in proceedings under Article 226 of the Constitution grant any stay of recovery of tax except under very exceptional circumstances; the grant of stay in such matters should be an exception and not a rule. 19. In Oswal Woollen Mills Ltd. (supra), the Supreme Court observed that the interim order under challenge was of a drastic character having great potential for mischief and had the effect of practically allowing the writ petition at the stage of admission without hearing the opposite parties. The Court was of the further opinion that the nature of stay might have devastating consequences leaving no way of undoing the mischief and that granting interim relief straightway 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 g....
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....ch the writ court and what were the prima facie reasons for grant of an ad interim order. However, despite noticing that such practice of moving oral applications were not prevalent in the High Courts of Karnataka, Madhya Pradesh, Andhra Pradesh and Rajasthan and the Patna, Madras and Bombay High Courts, the Supreme Court endorsed that in exceptional cases an oral application could be moved and urgent interim order issued on the basis of a skeletal application setting out the bare facts and the points involved, with permission to file a detailed application later. 23. Reverting to Swaika Properties (supra), it may be noted that the decision in Amalendu Das (supra) was delivered by the Supreme Court on January 6, 1984. The other decisions, which may have been in the mind of the Bench included in "the long line of decisions" and referred to above, were all delivered between March 27, 1984 and November 30, 1984. Internet connectivity was unknown in 1984 and I guess, in those days, 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 Su....
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....ublished in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. (words highlighted in bold font by me) 26. It would, therefore, appear from the above extract that the Court introduced a new concept of "integral part of the cause of action", which "must depend upon the nature of the order impugned giving rise to a cause of action" as a test for determining whether cause of action had arisen within the territorial limits of a High Court or not. Such concept may not have been propounded in any decision of the Supreme Court prior to the decision in Swaika Properties (supra). On the contrary, the Courts all along seem to have proceeded on the fundamental principles that a suitor is dominus litis, and that where a law permits a suitor to institute a suit on the basis of accrual of the cause of action, either in whole or in part, the Court within whose jurisdiction a small fraction of the cause of action 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....
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....spite not having territorial jurisdiction. After discussing the case set up in the pleadings and holding that even if the same were accepted as correct no part of the cause of action had arisen within the jurisdiction of the Calcutta High Court so as to enable the learned judge to entertain the writ petition filed by NICCO, reliance was placed on the decision in Swaika Properties (supra). It would be important at this stage to bear in mind what exactly the Supreme Court said in paragraph 12 of its decision. The relevant portions of such paragraph are quoted hereunder: 12. *****Notwithstanding the strong observations made by this Court in the aforesaid decision and in the earlier decisions referred to therein, we are distressed that the High Court of Calcutta persists in exercising jurisdiction even in cases where no part of the cause of action arose within its territorial jurisdiction. It is indeed a great pity that one of the premier High Courts of the country 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 mor....
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.... earlier decision on the point of territorial jurisdiction [it had referred only to Dunlop India Ltd. (supra), which in turn had referred to certain other previous decisions referred to hereinabove on the point of grant of interim relief on the mere asking resulting in the final relief being granted, either on a written application or an oral application], one would be inclined to form an opinion reading the discussions in paragraph 13 of the report, dealing with Section 21 of the CPC. The relevant passage reads thus: 13. The submission of the learned counsel for NICCO based on Section 21 of the Code of Civil Procedure that even if this Court comes to the conclusion that the High Court of Calcutta had no jurisdiction, this Court should, in the absence of proof of prejudice, refuse to interfere with the decision of the High Court unless it is otherwise found to be erroneous. While the spirit of Section 21 of the Code of Civil Procedure may support 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 f....
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....iary, which are avoidable or uncalled for, should be avoided. This is because of the simple reason that the same, apart from being capable of leading the member to a sense of frustration or having the effect of demoralising him, shakes the very confidence of the people in judicial institutions. The Supreme Court has sounded caution that a judicial officer against whom aspersions are made in a judgment does not have the scope of appearing before a higher court to defend his order, and the judges of higher courts must, therefore, exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against the lower judiciary [see Braj Kishore Thakur v. Union of India (1997) 4 SCC 65]. Here, I am also reminded of the decision in State of U.P. vs. Mohammad Naim, AIR 1964 SC 703, where a four-judge bench of the Supreme Court including two judges who had adorned the seat of judges of this premier institution had 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 mainta....
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....so logical" has not been accepted as right by the Supreme Court in subsequent decisions. Even a decade back, the Supreme Court in Tirupati Balaji Developers (P) Ltd. v. State of Bihar, (2004) 5 SCC 1 : AIR 2004 SC 2351, has held that "in a unified hierarchical judicial structure" which India has accepted under its Constitution, vertically the Supreme Court is placed over the High Courts and that there are a few provisions which give an edge and assign a superior place in the hierarchy to the Supreme Court over the High Courts. It has also been held there that if the Supreme Court and the High Courts both were to be thought of as brothers in the administration of justice, the High Court has larger jurisdiction but the Supreme Court still remains the elder brother only to the extent of exercise of appellate jurisdiction. Certainly the Supreme Court exercises a superior jurisdiction and, hence, is a superior court than the High Courts 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 co....
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.... Mona Panwar v. High Court of Judicature of Allahabad, reported in (2011) 3 SCC 496]. To err is human, is an age old adage and none is infallible. The decision in ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521, where suspension of fundamental rights of citizens by a Presidential Order was upheld by the majority, thereby approving that the judiciary could, in certain circumstances, be rendered impotent by the executive, is one decision of the Supreme Court that is famous for the wrong reasons. One of the most respected Chief Justices the Supreme Court has ever had, Hon'ble M.N. Venkatachaliah, C.J. (as His Lordship then was) in a lecture delivered by His Lordship on February 25, 2009 observed that the same "should be confined to the dustbin of history." 39. ADM, Jabalpur (supra) may not be a stray incident of the learned judges of the Supreme Court committing an error, but an error when detected and rectified ex debito 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 m....
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....ion in the former case never laid down the law that receipt of a notice within the territorial limits of a High Court is not sufficient to clothe such Court with jurisdiction. On facts, it was found that it was not necessary to plead the service of the notice. What the Supreme Court said was that the receipt of the notice, in order to confer jurisdiction on the Calcutta High Court, must have been an integral part of the cause of action. In the latter case, every event or incident material for a decision on the lis was held to have occurred beyond the territorial limits of the Calcutta High Court and even if the averments in the writ petition were taken as true, it could not be said that any part of the cause of action arose within the jurisdiction of the Calcutta High Court. 42. Here, the facts are different. Although the decision to withdraw the honour that was earlier conferred on the petitioner was taken in New Delhi, 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 commencin....
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....hether or not cause of action, wholly or in part, for filing a writ petition has arisen within the territorial limits of a particular High Court ought to be also decided in the light of nature and character of proceedings under Article 226 of the Constitution. Every High Court has jurisdiction to issue directions or orders or writs for enforcement of Fundamental Rights and for 'any other purpose'. The pertinent question would be whether within the limits of the High Court in which a writ application has been filed, any of the facts which would entitle the petitioner to obtain relief under Article 226 of the Constitution has arisen. In other words, in order to maintain his writ application the petitioner has to establish that within the territorial limits of the court's jurisdiction prima facie a legal right claimed by him has been either infringed or is threatened to be infringed by the respondents. 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 notw....
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....of the respondents cannot be pleaded for establishing that cause of action, either whole or in part, had arisen within the territorial limits of a particular High Court. (underlining for emphasis by me) 46. In Umasankar (supra), Hon'ble M.M. Dutt, J. (as His Lordship then was) speaking for a Division Bench of this Court held that an order of dismissal or removal from service is effective on the authority concerned as soon it is sent out, but so far as the Government servant is concerned, it becomes effective only when he is apprised of it either by oral communication or by actual service of it upon him; consequently, the order of removal became effective when the appellant (employee) received it through post office in Calcutta, he having no prior knowledge of the same by any other means, and part cause of action arose in Calcutta conferring jurisdiction on this Court to entertain the writ petition. 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 t....