Smt Pushpa Bouri @ Puspa Bauri vs M/S. Eastern Coal Fields Ltd. And ...
2021 Latest Caselaw 647 Cal/2

ORDER SHEET

                                WPO 239 of 2021
                               IA NO: GA/1/2021

                     IN THE HIGH COURT AT CALCUTTA
                    CONSTITUTIONAL WRIT JURISDICTION
                              ORIGINAL SIDE


                    SMT PUSHPA BOURI @ PUSPA BAURI
                                VERSUS
                 M/S. EASTERN COAL FIELDS LTD. AND ORS.



  BEFORE:
  The Hon'ble JUSTICE ARINDAM MUKHERJEE
  Date: 7th September, 2021.

  (Via Video Conference)


                                                                     Appearance:
                                                          Mr. Partha Ghosh, Adv.
                                                     Mr. Amal Kumar Datta, Adv.

                                                           Mr. Bijoy Kumar, Adv.


      The Court: RE: GA 1 of 2021:

      GA 1 of 2021 filed in this writ petition is an application by the respondent

no.1, inter alia, for modification and/or clarification of the order dated 6th

August, 2021. The respondent no.1 says that the office of the respondent no.1

situate at 13 R.N. Mukherjee Road Kolkata 700001 is functional with a skeleton

staff only to protect the property contrary to what was submitted by the Advocate

for the respondent no.1 on 6th August, 2021 and recorded in the said order. The

respondent no.1 further says that the office at 13 R.N. Mukherjee Road Kolkata

700001 has been closed but the property has not yet been sold. In order to

protect this prime property one or two officials are required who are posted

thereat. The said office in strict sense does not function after the Functional

Director Coal India Limited (in short 'CIL') had decided to shift all the desk office

of all the subsidiaries of CIL from Kolkata to their respective head quarters. It is

also stated that the learned Advocate representing the respondent no.1 under

confusion had submitted that the office had been closed and as such seeks

modification to that part of the order dated 6th August, 2021 wherein the

submission of the Advocate representing the respondent no.1 has been recorded.

It is a matter of concern to find that the respondent no.1 on affidavit in

paragraph 8 of the application is stating that the office at 13 R.N. Mukherjee

Road Kolkata 700001 has been closed down yet the said respondent is seeking

modification of the portion of the order dated 6th August, 2021 wherein the

Advocate representing the respondent no.1 had submitted that the office at 13

R.N. Mukherjee Road Kolkata 700001 had been closed down. The stand of the

respondent in view of the aforesaid is not clear to this Court. In view of such

apparent contradiction in the stand of the respondent no.1 the order dated 6th

August, 2021 to that extent does not need any modification or clarification. The

respondent no.1 has also sought for a fresh prayer in the garb of modification in

the said application by inviting this Court to hold that no part of cause of action

as pleaded by the petitioner in the writ petition arose within the Original Side

Jurisdiction of this Court. This point has been taken at the first hearing of the

writ petition on 6th August, 2021 which resulted in asking the respondent no.1 to

produce documents to show that the office at 13 R.N. Mukherjee Road Kolkata

700001 of ECL is closed. No documents to that effect has, however, been

produced. On the contrary the statement is that the said office still exists with

few officials and is not functional. This issue as such should be decided in the

writ petition itself. No separate application is required for adjudication of this

issue when the same has been taken prior to the filing of this application and

recorded in the order dated 6th August, 2021.

The application being GA 1 of 2021 is therefore devoid all merits and the

same is dismissed with cost assessed at 100 GMs. payable to the Calcutta High

Court Legal Services Committee by 17th September, 2021.

RE: WPO 239 of 2021:

The respondents have raised a preliminary point of objection in

entertaining the writ petition in the Original Side of this Court by citing Rule 4 of

the Rules of the High Court at Calcutta relating to applications under Article 226

of the Constitution of India. The respondents say that to file and maintain a writ

petition in the Original Side of this Court, all the respondents shall either have to

reside or carry on business or have their offices situate within the Ordinary

Original Civil Jurisdiction of this Court, unlike a Civil Suit which can be filed

after obtaining leave under Clause 12 of Letters Patent, 1865 if any part cause of

action has arisen within the Ordinary Original Civil Jurisdiction of this Court.

Assuming without admitting that the respondent no.1 has an office at 13

R.N. Mukherjee Road Kolkata 700001, and a part cause of action has arisen

within the Ordinary Original Civil Jurisdiction of this Court then also all the

respondents do not have their offices within the Ordinary Original Civil

Jurisdiction of this Court which is necessary to file and maintain a writ petition

in the Original Side of this Court. In that view of the matter the writ petition

according to the respondents has to be filed in the Appellate Side.

The writ petitioner has disputed this contention of the respondent no.1 by

saying that the office of the respondent no.1 at 13 R.N. Mukherjee Road Kolkata

700001 is still operational for which the writ petition can be filed, received and

heard in the Original Side of this Court. Moreover, part cause of action according

to the petitioner has arisen within the Ordinary Original Civil Jurisdiction of this

Court. The petitioner also refers to several judgments to show that writ petition

has been entertained against the respondent no.1 in the Original Side. There are

however several judgments holding that the writ petition wherein all the

respondents do not have their respective offices of their business within the

Ordinary Original Civil Jurisdiction of this Court has to be filed in the Appellate

Side. Without going into the technicalities as to whether part cause of action has

arisen within the Ordinary Original Civil Jurisdiction of this Court or that by

virtue of the office of the respondent no.1 being situate at 13 R.N. Mukherjee

Road Kolkata 700001 which will linger the hearing of the writ petition and may

cause detriment to the interest of the petitioner due to delay, I think justice will

be sub-served if I direct this writ petition to be converted into a writ petition filed

in the Appellate Side of this Court by assigning a writ petition number in the

Appellate Side.

The writ petition is therefore sent back to the Registry/department to make

necessary endorsement/recording to treat this writ petition to have been filed in

the Appellate Side on the date when it has been filed in the Original Side and

assign a number to the writ petition for being treated as a Writ Petition filed in

the Appellate Side on that date. The entire exercise has to be completed by the

Registry/department within 17th September, 2021.

Let this matter appear in the Appellate Side list of the Bench taking up

Group VI matters as a motion on 20th September, 2021.

(ARINDAM MUKHERJEE, J.)

b. pal/sp