Back
1998 Supreme(Cal) 120
High Court Of Calcutta
Ruma Pal
RAICHAND AND CO. - Appellant
Versus
DIRECTOR GENERAL OF FOREIGN TRADE - Respondent
Writ Petition 142 Of 1998
Decided On : 03/17/1998
ABHIJIT KUMAR GHOSH, B.SAMADDAR, HASMUKH KUNDALIA, VIPUL KUNDALIA
The High Court has the territorial jurisdiction to entertain a writ petition challenging the constitutional validity of a statutory notification issued under a Central Statute having application throughout the country, where the petitioner has its place of business.
Headnote:
JURISDICTION - FOREIGN TRADE (DEVELOPMENT AND REGULATION) ACT, 1992 - SEC. 5 - EXPORT AND IMPORT POLICY, 1997 TO 2002 - PARAGRAPH 4.1 - WRIT PETITION - TERRITORIAL JURISDICTION - CAUSE OF ACTION - WHETHER ARISES WITHIN THE JURISDICTION OF THE COURT - INTERPRETATION OF STATUTORY PROVISIONS - CENTRAL STATUTE - CONSTITUTIONAL CHALLENGE - JURISDICTION OF THE HIGH COURT.
Fact of the Case:
The petitioners, importers of spices, challenged a notification issued by the Directorate of Foreign Trade granting special favors to NAFED and STCL for the importation of spices, alleging violation of Articles 14 and 19(1)(g) of the Constitution.
Finding of the Court:
The Court held that the impugned notification was a statutory instrument issued under a Central Statute having application throughout the country and the challenge to its constitutional validity could be entertained by the High Court where the petitioner had its place of business.
Issues: 1. Whether the High Court has territorial jurisdiction to entertain the writ petition challenging the impugned notification issued by the Directorate of Foreign Trade? 2. Whether the cause of action arose within the jurisdiction of the Court?
Ratio Decidendi: 1. The Court held that the presence of the concerned respondent against whom the primary relief is claimed within the jurisdiction of a Court would be sufficient to clothe such Court with the territorial jurisdiction to entertain the Writ application. 2. The Court held that in determining whether the Cause of Action has arisen within the jurisdiction of the Court, the nature of the impugned action or order is relevant. If the challenge is to the vires of a Central statute or notification or other statutory instrument which is applicable nationwide, the place where the petitioner is affected by the implementation of the statute would have the jurisdiction to entertain the challenge.
Final Decision: The Court rejected the preliminary objection raised by the respondents and decided the issue of jurisdiction in favor of the petitioner, allowing the matter to be heard on merits.
( 1 ) THE petitioners are importers of spices. The petitioners have challenged a notification being No. 29/97-02 dated 17th December, 1997 published in the Gazette of India (Extraordinary) by the Directorate of Foreign Trade and Ex officio, Additional Secretary to the Government of India. The grievance of the writ petitioners is primarily that by the impugned notification, special favours had been granted with regard to importation of spices to National Agricultural Co-operative Marketing Federation of India Limited (NAFED) and Spices Trading Corporation Limited (STCL) illegally and in violation of Article 14 and 19 (1) (g) of the Constitution of India.
( 2 ) INITIALLY the writ application was filed against four respondents namely; the Director General of Foreign Trade, Ministry of Commerce, having his office at Udyog Bhawan, New Delhi 110011; the Deputy Director General of Foreign Trade, Ministry of Commerce, having his office at Udyog Bhawan, New Delhi 110011; the Joint Director General of Foreign Trade, having his office at 4, Esplanade East, Calcutta 700069 and the Union of India, through the Joint Director General of Foreign Trade, having his office at 4, Esplanade East, Calcutta 700069. On the basis of allegations contained in the petition and as the Court was of the view that any relief granted in the writ petition would seriously affect both NAFED and STCL, by an order dated 4th February, 1998 the petitioners were directed to make them party respondents. Both NAFED and STCL are now respondents Nos. 5 and 6 in the writ petition. NAFED has been described in the cause title as being located at "ashram Chowk, New Delhi" and STCL has been described as been located at "72, Nandi Durg Road Extension, Bangalore 560046".
( 3 ) A preliminary objection has been raised by the respondents that this Court does not have the territorial jurisdiction to entertain the writ application. The matter was taken up for hearing on 10th February, 1998 on the preliminary issue of jurisdiction. The petitioners sought to attract the jurisdiction of this Court on the ground that they carry on the business of importing spices at Calcutta. They had been granted an Import and Export Code Number by the respondent No. 3, who has his office in Calcutta. According to the petitioners the notification which had been challenged had been made applicable to the petitioners at Calcutta and caused prejudice to the petitioners business here. The petitioners have relied upon a contract stated to have been entered into at Calcutta with the foreign purchasers who were threatening action against the petitioner in the event the petitioner did not make supplies. It has also been argued that the respondents Nos. 3 and 4 had their office in Calcutta and the impugned notification was being enforced and implemented in Calcutta.
( 4 ) THE respondents Nos. 1 to 4 have submitted that an identical issue was pending before the Delhi High Court. A writ application had been filed by another exporter of spices raising the same contention. It is also stated that all the records relating to the case were therefore at Delhi where the hearing was continuing. It is submitted that an application had been made to the Supreme Court for transfer the proceedings from the Calcutta High Court and the application was pending admission. It is also submitted that the notification had been issued by the respondent No. 1, who had his office outside the jurisdiction of this Court. It is stated that the respondent No. 3 had no power to either formulate or effect change in the policy nor issue any notification nor withdraw the impugned notification. It is submitted that merely because the petitioners might suffer loss and damages in Calcutta was insufficient to found jurisdiction in the Calcutta High Court.
( 5 ) THE respondent Nos. 5 and 6 have adopted the arguments of the respondents Nos. 1 to 4. They have also stated that the notification became effective from the date of its pub
