Gauhati High Court
Page No.# 1/18 vs National Building Construction ... on 12 June, 2024
Page No.# 1/18
GAHC010030072024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/434/2024
PRASAD AND COMPANY (PROJECT WORKS) PVT. LTD. AND ANR
REPRESENTED BY ITS EXECUTIVE DIRECTOR S. MANI RAJU HAVING ITS
REGISTERED OFFICE AT 6-3-871/3
SNEHALATA
GREENLANDS ROAD
BAGUMPET
HYDERABAD-50001
TELENGANA
INDIA.
2: S. MANI RAJU
S/O- S NAG RAJU
EXECUTIVE DIRECTOR
PRASAD AND COMPANY (PROJECT WORKS) PVT. LTD. 6-3-871/3
SNEHALATA
GREENLANDS ROAD
BAGUMPET
HYDERABAD-50001
TELENGANA
INDIA
CURRENTLY HAVING A LOCAL OFFICE AT FLAT NO. 102
1ST FLOOR
GREENTECH AAROHAN
KETAKI PATH
GOTANAGAR
GUWAHATI
ASSAM
PIN- 781033.
VERSUS
NATIONAL BUILDING CONSTRUCTION CORPORATION LIMITED (NBCC)
INDIA LTD. AND 7 ORS
REPRESENTED BY ITS CHAIRMAN CUM MANAGING DIRECTOR
HAVING ITS REGISTERED OFFICE AT NBCC BHAWAN
2ND FLOOR
Page No.# 2/18
LODHI ROAD
NEW DELHI-110003.
2:THE DIRECTOR (PROJECTS)
NBCC (INDIA) LTD.
HAVING ITS REGISTERED OFFICE AT NBCC BHAWAN
2ND FLOOR
LODHI ROAD
NEW DELHI-110003.
3:THE EXECUTIVE DIRECTOR (ENGG.)
HEAD
CENTRAL PROCUREMENT GROUP NBCC (I) LTD.
HAVING ITS OFFICE AT CENTRAL PROCUREMENT GROUP NBCC BHAWAN
2ND FLOOR
LODHI ROAD
NEW DELHI-110003.
4:THE CHIEF GENERAL MANAGER (ENGG.)
NBCC (INDIA) LTD.
HAVING ITS OFFICE AT NBCC HOUSE
6TH FLOOR
HOUSEFED COMPLEX
WEST END BLOCK
DISPUR
GHY-781006
ASSAM
5:THE GENERAL MANAGER (ENGG.)
NBCC (INDIA) LTD.
HAVING ITS LOCAL OFFICE AT IBBF WORKS
T-120 TUIKHATLANG
AIZWAL
MIZORAM
PIN- 796001.
6:THE DGM (ENGG.) NBCC (INDIA) LTD.
HAVING ITS LOCAL OFFICE AT IBBF WORKS
T-120 TUIKHATLANG
AIZWAL
MIZORAM
PIN- 796001.
7:SURYA ROSHINI LTD.
HAVING ITS OFFICE AT PADMA TOWER-1
RAJENDRA PLACE
NEW DELHI-110008.
8:ASSAM SUPPLY SYNDICATE
HAVING ITS OFFICE AT KRISHNA NAGAR LANE
Page No.# 3/18
OPPOSITE HOUSE NO. 23
CHATRIBARI
GHY-781001
ASSAM
------------
Advocate for : MR. H. BURAGOHAIN
Advocate for : MR. A THAKUR (r-1 to 6) appearing for NATIONAL BUILDING
CONSTRUCTION CORPORATION LIMITED (NBCC) INDIA LTD. AND 7 ORS
WP(C)/787/2024
PRASAD AND COMPANY (PROJECT WORKS) PVT LTD AND ANR
REPRESENTED BY ITS EXECUTIVE DIRECTOR S. MANI RAJU, HAVING ITS
REGISTERED OFFICE AT 6-3-871/3, SNEHALATA, GREENLANDS ROAD,
BEGUMPET, HYDERABAD- 50001, TELENGANA INDIA
2: S. MANI RAJU
SON OF S NAG RAJU
EXECUTIVE DIRECTOR
PRASAD AND COMPANY (PROJECT WORKS) PVT. LTD.
HAVING ITS REGISTERED OFFICE AT 6-3-871/3
SNEHALATA
GREENLANDS ROAD
BEGUMPET
HYDERABAD- 50001
TELENGANA INDIA
CURRENTLY HAVING A LOCAL OFFICE AT FLAT NO 102
1ST FLOOR
GREENTECH AAROHAN
KETAKI PATH GOTANAGAR
GUWAHATI
ASSAM 78103
VERSUS
NATIONAL BUILDING CONSTRUCTION CORPORATION LIMITED AND 6
ORS
(NBCC) INDIA LTD., REPRESENTED BY ITS CHAIRMAN CUM MANAGING
DIRECTOR, HAVING ITS REGISTERED OFFICE AT NBCC BHAWAN, 2ND
FLOOR, LODHI ROAD, NEW DELHI- 110003
2:THE DIRECTOR (PROJECTS)
(NBCC) INDIA LTD.
HAVING ITS REGISTERED OFFICE AT NBCC BHAWAN
2ND FLOOR
LODHI ROAD
Page No.# 4/18
NEW DELHI- 110003
3:THE EXECUTIVE DIRECTOR (ENGG.)
HEAD CENTRAL PROCUREMENT GROUP NBCC (I) LTD.
HAVING ITS OFFICE AT CENTRAL PROCUREMENT GROUP NBCC
BHAWAN
2ND FLOOR
LODHI ROAD
NEW DELHI- 110003
4:THE CHIEF GENERAL MANAGER (ENGG.)
NBCC (INDIA) LTD.
HAVING ITS OFFICE AT NBCC HOUSE
6TH FLOOR
HOUSEFED COMPLEX
WEST END BLOCK
DISPUR
GUWAHATI- 781006
ASSAM
5:THE GENERAL MANAGER (ENGG.)
NBCC (INDIA) LTD.
HAVING ITS LOCAL OFFICE AT IBBF WORKS
T-120 TUIKHATLANG
AIZWAL
MIZORAM
PIN- 796001
6:THE DGM (ENGG.)
NBCC (INDIA) LTD.
HAVING ITS LOCAL OFFICE AT IBBF WORKS
T-120 TUIKHATLANG
AIZWAL
MIZORAM
PIN- 796001
7:ASSAM SUPPLY SYNDICATE
HAVING ITS OFFICE AT KRISHNA NAGAR LANE
OPPOSITE HOUSE NO.23
CHATRIBARI
GUWAHATI- 781001
ASSA
Advocate for the Petitioner : MR. H. BURAGOHAIN
Advocate for the Respondent : MS N MAHANTA (R-7)
Page No.# 5/18
BEFORE
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
12.06.2024
Heard Mr. A.K. Bhattacharjee, learned Senior Counsel assisted by Mr. H.
Buragohain, learned counsel for the petitioners. Also heard Mr. A. Thakur,
learned Counsel assisted by Ms. J.R. Thakur, learned counsel for the respondent
Nos. 1 to 6 and Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. J.
Patowary, learned counsel for the respondent No. 8.
2. Since both the writ petitions relates to the same NIT, both the petitions are
taken up for hearing together. Upon the arguments being completed from the
side of the petitioners, the respondents during their turn, raised the issue of
territorial jurisdiction in both the petitions.
3. Mr. K.N. Choudhury, learned Senior Counsel appearing on behalf of
respondent No. 8 draws the attention of this Court to the pleadings in the
affidavit-in-opposition where the issue of territorial jurisdiction was categorically
raised.
4. In view of the objection as regards the territorial jurisdiction of this Court
being raised, this Court is confining first to the issue of maintainability of the
writ petition on the ground of lack of territorial jurisdiction before continuing
further with the hearing on merit.
5. Mr. A.K. Bhattacharjee, learned Senior Counsel submits that since the
respondent No. 1 has a local office at Guwahati, the Constitutional Court at
Guwahati has jurisdiction to decide the writ petition.
Page No.# 6/18
6. He further submits that the respondent No. 8 received the impugned LOA
at Guwahati and that the Contract Agreement is also to be signed at the office
of the NBCC at Guwahati.
7. He further submits that the consequential submission of Bank Guarantee
etc. in terms of the aforesaid NIT is also required to be submitted at the said
office of the respondent Authorities at Guwahati.
8. He accordingly submits that part of cause of action has arisen within the
territorial jurisdiction of this Court at Guwahati.
9. Mr. K.N. Choudhury, learned Senior Counsel for the respondent No. 8
submits that no part of cause of action has arisen within the jurisdiction of the
Gauhati High Court.
10. He further draws the attention of this Court to paragraph No.2 of the
affidavit-in-opposition filed on behalf of respondent No. 8 in WP(C) No.
434/2024, which is reproduced hereunder for ready reference:-
"2. That at the very outset the respondent no. 8 humbly begs to raise preliminary
objection regarding the maintainability of the writ petition before this Hon'ble High
Court. In this regard it is brought to the notice of this Hon'ble Court that the NIT dated
10.11.2023 in question (Annexure - 2 page 60 to the writ petition) has been issued by
the employer i.e., National Building Construction Corporation Limited (NBCC in short)
from its Central Procurement Group (CPG) Division Road, situated at NBCC Bhawan,
2nd Floor, Lodhi Road New Delhi. Further, the said NIT mandates that hard copy of
the relevant documents are to be submitted in the said office at New Delhi. The venue
for the Pre-Bid Meeting is also the said office of NBCC at New Delhi. That apart the
Instruction to Tenderer (ITT) under Section - 2 of the General Conditions of the
Contract at Clause 6.0 also envisage that the documents are to be submitted in the
office of the NBCC. Therefore, in the humble understanding of the respondent no. 8 no
cause of action, either in part or whole, having arisen within the territorial limits of this
Page No.# 7/18
Hon'ble Court, the petitioner perhaps erred in preferring the writ petition before this
Hon'ble Court at Guwahati. As such, on this count alone the writ petition deserves to
be rejected at the threshold. Further, even assuming while not admitting that this
Hon'ble Court has jurisdiction to entertain the writ petition under Article 226 (2) of the
Constitution of India because the work in question i.e., 'Supply, Fixing, Testing and
Commissioning (SITC) of LED Flood Lights in Dampa Tiger Reserve Forest (DTRF)
area from Near BP No. - 2313 to near 2305/2- RI along Indo-Bangladesh Border in
Mizoram State (approximate length: 60 km)' pertains to State of Mizoram, then in that
event also, the writ petition ought to have been preferred before the Aizawl Bench of
this Hon'ble Court. The respondent no. 8 is not aware whether the required
permission of the Hon'ble Chief Justice on administrative side was taken before
moving the instant writ petition in the Principal Seat of the Hon'ble Court at Guwahati.
In absence of such permission the writ petition has to be rejected outright."
11. Mr. A. Thakur, learned Counsel for the NBCC submits that there is an
exclusive jurisdiction Clause in the General Conditions of Contract-2022 (GCC),
which is reproduced hereunder for ready reference:
"83.0 JURISDICTION
The agreement shall be executed at Delhi on non-judicial stamp paper purchased in
Delhi and the courts in Delhi alone will have jurisdiction to deal with matters arising
there from, to the exclusion of all other courts."
12. He accordingly submits that this Court lacks territorial jurisdiction to decide
the writ petition.
13. Heard the parties on the issue of maintainability of the writ petition on the
ground of lack of territorial jurisdiction.
14. It is a settled law that the issue of territorial jurisdiction in Article 226 of
the Constitution has to be decided on the basis of the pleadings made in the
writ petitions, the truth otherwise whereof being immaterial. Reference is made
Page No.# 8/18
to the decision of Oil and Natural Gas Commission Vs. Utpal Kumar Basu
& Others reported in (1994) 4 SCC 711.
15. Keeping in mind, the aforesaid principles, the pleadings made in the writ
petitions are being looked into.
16. The case of the writ petitioners is that the petitioners participated in the
tender process pursuant to a NIT dated 10.11.2023 for "Supply, Fixing, Testing
and Commissioning (SITC) of LED Flood Light in Dampa Tiger Reserve Forest
(DTRF) Area from near BP No. 2313 to near 2305/2-RI along Indo-Bangladesh
Border" in Mizoram State (approximate length : 60 Km).
17. It is the specific case of the petitioners that after participating in the tender
process and after submitting their bids, they came to know that two bidders i.e.
respondent Nos. 7 and 8 are not technically qualified.
18. Accordingly, the petitioners have submitted representations before the
Tendering Authorities from the Registered Office of the petitioners at
Hyderabad. Failing any response from the Tendering Authorities in respect of the
said representations, the WP(C) No. 434/2024 have been filed wherein the
petitioners inter alia is seeking direction to the effect not to accept the technical
bid of the respondent Nos. 7 and 8 in connection with the subject tender.
19. It is the further case of the petitioners that pending the aforesaid writ
proceeding, the technical bids of the unqualified bidders were accepted and the
subject work thereof was allotted to the respondent No. 8 by ignoring the
representation submitted by the petitioners for which WP(C) No. 787/2024 has
been filed.
20. In the said writ petition, the petitioner is seeking inter alia setting aside
and quashing of the Letter of Award dated 30.01.2024 issued by the NBCC
Page No.# 9/18
Authorities to respondent No. 8 in connection with the subject tender.
21. Admittedly, the NIT dated 10.11.2023 was issued by the NBCC (India)
Limited, Central Procurement Group, NBCC Bhawan, New Delhi. The aforesaid
NIT is for Supply/ Fixing/ Testing/ Commissioning the subject work in the State
of Mizoram. The last date & time of submission of the Online Tender is
26.12.2023 and the place of submission of the bid is New Delhi as per the terms
and conditions of the NIT. Pre-Tender Meeting was held on 22.11.2023 at New
Delhi, wherein the representatives of the bidders were present. The
representations were also issued by the petitioners from their registered office
at Hyderabad to the tendering Authorities at New Delhi.
22. Paragraph 2 of WP(C) No. 434/2024 reads as hereunder for ready
reference:-
"2. That, the respondent no.1 in the instant writ petition is a Government of India
Undertaking/Enterprise, having its registered office at NBCC Bhawan, 2nd Floor, Lodhi
Road, New Delhi-110003 and also having its Local Office in Guwahati and Aizwal in
the address mentioned hereinabove in the cause title and is being represented by its
Chairman cum Managing Director. The Respondent No. 2 to 6 are the authorities
and functionaries under the respondent no. 1 Corporation and under whose aegis the
Notice Inviting E-Tender (NIT) dated 10/11/2023 was floated and the tender process
has been initiated. The respondent nos. 7 and 8 are the private respondents who all
have participated in the aforesaid tender process in pursuant to the NIT dated
10/11/2023 and whose technical bids have been accepted and price bids have been
opened by the tendering authorities on 12/01/2024 despite of the fact that they are
technically unqualified and ineligible bidders as per the terms of the tender
documents and the NIT. The said respondents are arraigned as party respondents by
the petitioners as necessary parties in as much as the petitioners being highly
dissatisfied and aggrieved by their impugned inactions involving non-consideration of
the representations filed by the petitioners from time to time narrating therein the
anomalies/irregularities and illegalities committed by the said respondents in the
Page No.# 10/18
tender process and thereby contemplating to award the contract to the said two
private respondents dehors the procedure prescribed under the law holding the field.
The Respondent No. 4 to 6 are the Local Authorities functioning under the Respondent
No. 1 Corporation, having its Local Office at Guwahati, Assam and at Aizwal in the
address mentioned in the Cause Title and under whose supervision and authority, the
project in question, i.e., "Supply, Fixing, Testing, Commissioning (SITC) of LED Flood
Lights in Dampa Tiger Reserve Forest (DTRF) Area from near BP No.-2313 to near
2305/2-RI along Indo-Bangladesh Border in Mizoram State (Approximately length: 60
km' under the NIT dated 10/11/2023 is to be supervised and monitored. The petitioners
have arrayed them as necessary parties in the Instant Writ Petition, as all the
respondents are intrinsically connected with the current work in question, i.e., "Supply,
Fixing, Testing, Commissioning (SITC) of LED Flood Lights in Dampa Tiger Reserve
Forest (DTRF) Area from near BP No.-2313 to near 2305/2-RI along Indo-Bangladesh
Border in Mizoram State (Approximately length:60 km', in connection with the NIT
dated 10/11/2023 and due to the subsequent conduct and their indifferent attitude,
including high handed actions which involves Non- redressal of the grievances of the
petitioners, have impelled the petitioners to make them necessary parties in the
instant Writ Petition. The Petitioners as a Contractor participated in the
aforementioned tender process and have successfully qualified at the two stages of
the bid process, i.e., the stage of technical bid and the financial bid, but as the
grievances of the petitioners have not been redressed by the authorities concerned
(i.e., the Respondents herein), the petitioners are impelled to make them parties in the
Instant Writ Petition as 'Necessary parties' for deciding the grievances/contentions of
the writ petitioners before this Hon'ble Court. All the respondents are otherwise within
the meaning of the term "State" under the Article 12 of the Constitution of India and
are within the definition of "State" and hence amenable to the writ jurisdiction of this
Hon'ble Court and hence they are party to the instant Writ Petition."
It appears from the averments made in WP(C) No. 434/2024, that though
the NIT has been issued by respondent No. 1 at New Delhi for work to be
carried out at Aizawl, Mizoram, in view of the fact that there is a local office of
the respondent No.1 at Guwahati, the instant writ petition has been filed at
Page No.# 11/18
Guwahati.
23. In WP(C) No. 787/2024, the writ petitioner has stated that since the
impugned Letter of Award in connection with the subject NIT in favour of the
respondent No. 8, has been communicated to the respondent No. 8 at his office
at Guwahati, the instant writ petition has been filed at Guwahati.
24. It further appears from the prayers made in both these writ petitions that it
is the factum of selection and the Award of the Contract to respondent No. 8
which is under challenge. A bare reading of the averments made in the writ
petition shows that the entire selection process has taken place at New Delhi
and the LOA has been issued to the selected bidders thereof from New Delhi.
25. Therefore, no part of cause of action whatsoever as regards the selection
process had arisen within the territorial jurisdiction of the Principal Seat of the
Gauhati High Court.
26. The issue that falls for consideration in WP(C) No. 434/2024 is whether
merely because the respondent No. 1 (tendering Authorities) has a local office
at Guwahati, the Constitutional Court at Guwahati can be said to have
jurisdiction over the matter and in WP(C) No. 787/2024 is whether merely
because respondent No. 8 has received the LOA at Guwahati, the Constitutional
Court can be said to have jurisdiction over the matter.
27. Clause 2 of Article 226 of the Constitution of India provides that the power
conferred on the High Court under Article 226 could as well be exercised by any
High Court exercising its 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. Therefore, it is not the
Page No.# 12/18
residence/office of the respondent which shall confer jurisdiction upon the
Constitutional Court, but it is the arising of cause of action wholly or part which
shall confer such jurisdiction. This merely because the respondent No. 1 has a
local office at Guwahati, the same alone is not sufficient to confer jurisdiction
upon this Court at Guwahati. There has to be averments made in the body of
the writ petition to show that part of cause of action has arisen within the
jurisdiction of the Court at Guwahati. Reading of the averments made in WP(C)
No. 434/2024, no averments whatsoever as regards arising of any facts within
the territorial limits of this Court at Guwahati is pleaded. Therefore, this Court at
Guwahati lacks territorial jurisdiction in respect of WP(C) No. 434/2024.
28. In respect of WP(C) No. 787/2024, territorial jurisdiction is sought to be
invested upon the Constitutional Court at Guwahati on the basis that the
impugned Letter of Award of the subject Contract was communicated to the
respondent No. 8 at Guwahati by post. It appears that the respondent No. 8 has
received the Letter of Award at Guwahati and it further appears that
consequential execution of the Contract Agreement and submission of earnest
money etc. is to be made at Guwahati. However, the issue in the said writ
petition is not as regards receipt of the Letter of Award and/or execution of the
Agreement thereof. The issue involved in this writ petition is the validity of the
selection of the respondent No. 8. As mentioned above, the entire exercise of
selection has been done at New Delhi. Further, the works in relation to which
the NIT was issued is to be performed at Aizawl which is also outside the
territorial jurisdiction of the Constitutional Court at Guwahati.
29. It is well settled that it is only when cause of action wholly or in part arises
within the territorial jurisdiction of the Constitutional Court, the said Court shall
have jurisdiction to adjudicate the writ petitions.
Page No.# 13/18
30. The expression cause of action means "the bundle of facts which would be
necessary for the petitioner/plaintiff to prove, if traversed, in order to support
his right to the judgment of the Court ". In other words, not all facts constitute
cause of action. Facts must form integral part of the cause of action in order to
invest jurisdiction upon the Court.
31. Paragraphs 5, 6, 7 & 8 of the decision of the Apex Court in the case of Oil
and Natural Gas Commission (Supra) is reproduced hereunder for ready
reference:-
"5. Clause (1) of Article 226 begins with a non obstante clause notwithstanding
anything in Article 32 - and provides that 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, for the enforcement of any of the rights conferred
by Part III or for any other purpose. Under clause (2) of Article 226 the High Court
may exercise its power conferred by clause (1) if the cause of action, wholly or in part,
had arisen within the territory over which it exercises Jurisdiction, notwithstanding that
the seat of such Government or authority or the residence of such person is not within
those territories. On a plain reading of the aforesaid two clauses of Article 226 of the
Constitution it becomes clear that a High Court can exercise the power to issue
directions, orders or writs for the enforcement of any of the fundamental rights
conferred by Part III of the Constitution or for any other purpose if the cause of action,
wholly or impart, had arisen within the territories in relation to which it exercises
jurisdiction, notwithstanding that the seat of the Government or authority or the
residence of the person against whom the direction, order or writ 'is issued is not within
the said territories.
In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at
least a part of the cause of action had arisen within the territorial jurisdiction of that
Court. That is at best its case in the writ petition.
6. 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. In Chand Kour v. Partab Singh Lord Watson said:
"... the cause of action has no relation whatever to the defence which may be set up by
the defendant, nor does it depend upon the character of the relief prayed for by the
plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or,
Page No.# 14/18
in other words, to the media upon which the plaintiff asks the Court to arrive at a
conclusion in his favour."
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. Therefore,
the question whether in the instant case the Calcutta High Court had jurisdiction to
entertain and decide the writ petition in question even on the facts alleged must
depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are
sufficient in law to establish that a part of the cause of action had arisen within the
jurisdiction of the Calcutta High Court."
7. The learned counsel for ONGC contended that on these averments no part of
the cause of action had arisen within the jurisdiction of the Calcutta High Court and
hence the writ petition filed by NICCO and another was not entertainable by that High
Court. He submitted that ONGC had decided to set up a Kerosene Recovery
Processing Unit at Hazira in Gujarat. EIL was appointed by ONGC as its consultant. In
that capacity, EIL issued the advertisement from New Delhi calling for tenders and this
advertisement was printed and published in all the leading newspapers of the country
including the Times of India in circulation in West Bengal. The tenders or bids were to
be forwarded to EIL at New Delhi. EIL was expected to scrutinise the tenders and
make its recommendations to the Tender Committee constituted by ONGC. The final
decision was, however, to be taken by the Steering Committee at New Delhi presided
over by the Chairman, ONGC. Accordingly, the tender of NICCO was examined by EIL
at New Delhi and it recommended its rejection on the ground that NICCO did not
satisfy the experience criteria requisite for the grant of contract. On the first occasion,
the Tender Committee did not agree with the said recommendation and directed the
EIL to call NICCO at the clarificatory meeting proposed to be held in New Delhi. In
obedience to the said direction, EIL invited NICCO along with the other bidders, but
once again recommended its rejection on the ground that it did not satisfy the
experience criteria. The Tender Committee which met in New Delhi reviewed its earlier
decision and accepted the recommendation of EIL which was also accepted by the
Steering Committee at New Delhi on 27-1-1993. It was at this point of time that the
decision to award the contract to CIMMCO was taken at New Delhi. Counsel for
ONGC, therefore, contended that all these events took place outside the jurisdiction of
the Calcutta High Court and merely because NICCO had read the advertisement in the
Times of India in circulation in West Bengal and had forwarded its tender from its
registered office in Calcutta and followed it up by a revised offer, it cannot be said that
any part of the cause of action had arisen within the jurisdiction of the Calcutta High
Page No.# 15/18
Court for the simple reason that if these facts were to give a cause of action, every
tenderer would sue ONGC in the local court from where he forwarded the tender and
that would make ONGC run about from court to court all over the country. Counsel
further submitted that nor can the fact that NLCCO sent representations including fax
messages from its registered office to ONGC at Calcutta to which ONGC showed the
courtesy of replying confer jurisdiction. In support of this contention, he placed strong
reliance on the decision in State of Rajasthan v. Swaika Properties. Learned counsel
for CIMMCO buttressed these submissions by inviting our attention to certain other
decisions of this Court, namely, Election Commission v. Saka Venkata Subba Rao, R.
Bejal v. Triveni Structurals Ltd ., Subodh Kumar Gupta v. Shrikant Gupta' and certain
decisions of different High Courts. On the other hand, counsel for NICCO, while
reiterating that the averments made in paragraphs 5, 7, 18, 22 and 26 constituted an
integral part of the cause of action, submitted that by the introduction of clause (2) in
Article 226 of the Constitution, the Legislature intended, to widen the High Court's
Jurisdiction and thereby extend its beneficent reach even to cases where a part of the
cause of action arose within its territorial Jurisdiction. In the alternative, he submitted
that even if this Court comes to the conclusion that the High Court of Calcutta lacked
jurisdiction, this Court sitting in appeal should not interfere with the verdict of the High
Court as ONGC had neither alleged nor showed that there had been a failure of
justice. In this connection, he placed reliance on the spirit of Section 21 of the Code of
Civil Procedure. He, therefore, contended that this Court should examine the appeal on
merits and not confine itself to the question of territorial jurisdiction. Lastly, he
submitted that on merits NICCO had made out a good case for the grant of relief
sought by it.
8. From the facts pleaded in the writ petition, it is clear that NICCO invoked the
jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had
arisen within its territorial jurisdiction. According to NICCO, it became aware of the
contract proposed to be given by ONGC on reading the advertisement which appeared
in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from
its Calcutta office and revised the rates subsequently. When it learnt that it was
considered ineligible it sent representations, including fax messages, to EIL, ONGC,
etc., at New Delhi, demanding justice. As stated earlier, the Steering Committee finally
rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi on 27-
1-1993. Therefore, broadly speaking, NICCO claims that a part of the cause of action
arose within the jurisdiction of the Calcutta High Court because it became aware of the
advertisement in Calcutta, it submitted its bid or tender from Calcutta and made
representations demanding justice from Calcutta on learning about the rejection of its
offer. The advertisement itself mentioned that the tenders should be submitted to EIL at
New Delhi; that those would be scrutinised at New Delhi and that a final decision
whether or not to award the contract to the tenderer would be taken at New Delhi. Of
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course, the execution of the contract work was to be carried out at Hazira in Gujarat.
Therefore, merely because it read the advertisement at Calcutta and submitted the
offer from Calcutta and made representations from Calcutta would not, in our opinion,
constitute facts forming an integral part of the cause of action. So also the mere fact
that it sent fax messages from Calcutta and received a reply thereto at Calcutta would
not constitute an integral part of the cause of action. Besides the fax message of 15-1-
1993, cannot be construed as conveying rejection of the offer as that fact occurred on
27-1-1993. We are, therefore, of the opinion that even if the averments in the writ
petition are taken as true, it cannot be said that a part of the cause of action arose
within the jurisdiction of the Calcutta High Court."
32. A reading of the aforesaid decision indicates that not every fact would
invest territorial jurisdiction in a Court unless and until that fact when proved, if
traversed entitles the plaintiff/petitioner to a judgment in his favour by the
Court.
33. In the present case, what is challenge before this Court is the factum of
selection and the consequent appointment of respondent No. 8 as the selected
Contractor.
34. The fact that respondent No. 8 received the said LOA at Guwahati even if
proved, does not entitle him any relief and hence cannot be said to be an
integral part of the cause of action.
35. Therefore, no cause of action whatsoever has arisen within the territorial
limits of the Constitutional Court at Guwahati. However, considering that the
subject work pertains to the State of Mizoram, the Aizawl Bench of the Gauhati
High Court may have jurisdiction over the matter.
36. Since a permanent Bench of Gauhati High Court is being established at
Aizawl, in respect of cases arising in the State of Mizoram, writ petition
pertaining to the State of Mizoram can be filed at the Aizawl Bench of the
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Gauhati High Court. However, the same can be filed at Guwahati after obtaining
permission from the Hon'ble Chief Justice of the Gauhati High Court in the
administrative side.
37. In the present case, no such permission has been taken from the Hon 'ble
Chief Justice in the administrative side. In the absence of such permission,
further continuation of hearing of the writ petitions at Guwahati, in the
considered opinion of this Court shall not be proper.
38. Pertinent to refer to the Appendix 16 of the Gauhati High Court Rules, 2022
pertaining to the Gauhati High Court (Establishment of a Permanent Bench at
Aizawl) Order, 1990) vide Notification No. G.S.R 599(E), dated 22.06.1990,
which reads hereunder:-
"In exercise of the powers conferred by sub-section (2) of section 21 of the State of
Mizoram Act, 1986 (34 of 1986), the President, after consultation with the Chief Justice
of the Gauhati High Court and the Governor of Mizoram, is pleased to make the
following Order, namely:
1. Short title and commencement.-- (1) This Order may be called the Gauhati High
Court (Establishment of a Permanent Bench at Aizawl) Order, 1990.
(2) It shall come into force on the 5th day of July, 1990.
2. Establishment of a permanent Bench of the Gauhati High Court at Aizawl.-
There shall be established a permanent Bench of the Gauhati High Court at Aizawl
and such Judges of the Gauhati High Court, being not less than two in number, as the
Chief Justice of that High Court may, from time to time nominate, shall sit at Aizawl in
order to exercise the jurisdiction and powers for the time being vested in the Gauhati
High Court in respect of cases arising in the State of Mizoram:
Provided that the Chief Justice of that High Court may, in his discretion, order that any
case or class of cases arising in the State of Mizoram shall be heard at Gauhati."
39. Accordingly, let Registry place the matter before the Hon 'ble Chief Justice
in the Administrative side to take a decision in the matter in terms of the
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aforesaid Appendix quoted herein above before continuing with further hearing
of the matter.
JUDGE
Comparing Assistant
