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PETITIONER: STATE OF RAJASTHAN & ORS.

       Vs.

RESPONDENT: SWAIKA PROPERTIES & ANR.

DATE OF JUDGMENT08/04/1985

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1985 AIR 1289            1985 SCR  (3) 598  1985 SCC  (3) 217        1985 SCALE  (1)1181  CITATOR INFO :  R          1986 SC 614  (5,7)

ACT:      Constitution of India 1950 Article 226      High Court  to  determine  extent  of  its  territorial jurisdiction before  making interlocutory  orders-Ad interim ex parte  orders-Passing  of-Deprecated  ’cause  of  action- Service of  notice whether  an integral  part  of  cause  of action- Acquisition of land-By State Government of Rajasthan Notice served  on owner  at   Calcutta-Calcutta High  Court- Whether can exercise writ jurisdiction      Rajasthan Urban improvement Act 1959 Section 59(2)      Land in  Jaipur-Acquisition for  public  purpose-Notice issued to  Owner at  Calcutta-Whether writ  maintainable  in Calcutta High Court.      Words & Phrases:      ’Cause of  action-Meaning of-Civil  Procedure Code 1908 Section 20 and Constitution of India 1950 , Article 226.

HEADNOTE:      The Special Officer , Town Planning Department , Jaipur issued a  notice under  s. 52  (2) of  the  Rajasthan  Urban Improvement Act  , 1959  at the  instance Or the Improvement Trust to  the respondent-company  which owned extensive land on the outskirts of Jaipur City stating that it was proposed by the State Government to acquire the said land under 9. 52 (1)  for   a  public  purpose  ,  the  implementation  of  a developing scheme  at public  expense viz.  the Civil  Lines Extension Scheme  , and  the said  notice was duly served on the  respondents   at  their  registered  office  at  18B  , Brabourne Road  , Calcutta.  In compliance  therewith ,  the respondents appeared  before the  Special Officer  and while denying the existence of a public purpose for acquisition of the said  land under  s. 52  (1) of  the Act , asserted that they needed  the land  to start new business in the State of Rajasthan viz.  for  establishment  of  a  branch  office  , construction of  residential houses  for their  Director and Senior  Executives   etc.  The   Special  Officer  on  being satisfied from  the material on record that the alleged need of the  respondents was  not bona fide and that the land was required by  the Improvement Trust for a public purpose viz. the Civil Lines Extension Scheme , recom-

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599 mended that  the entire  land be acquired under s. 52 (1) of the Act.      Having failed  in their effort to get the land released from acquisition  , the  respondents made  an application to the State  Government under s. 20 of the Urban Land (Ceiling JUDGMENT: purview of  that Act  alleging that  the land was needed for constructing a  three-star hotel  , but it appears that they were not  serious in undertaking any such venture. While the matter was under the consideration of the State Government , the Improvement  Trust represented that the notified land in entirety was needed for the aforesaid development scheme and accordingly  the   State  Government   issued  the  impugned notification.      The respondent-company  approached  the  Calcutta  High Court by  a writ  petition.A Single  Judge  entertained  the petition under  Art.  226  ,  issued  a  rule  nisi  to  the appellants to  show cause  why a writ of mandamus should not be  issued   ,  and  also  passed  an  ex  parte  ad-interim prohibitory order  restraining them  from taking any step to require the  respondents to  surrender or deliver possession of the lands acquired.      Allowing the Appeal , ^      HELD: 1. 1. Normally , the High Court should not , as a rule ,  in proceedings  under Art.  226 of  the Constitution grant  any   ad-interim  prohibitory   order   staying   the implementation of  any  development  scheme  framed  by  the Government or  by the  local authorities  , save  under very exceptional circumstances and particularly without notice to the Government  or such  authority. The Court deprecated the tendency on  the part  of the  High Court in spite of a long line of  decisions of  this  Court  starting  from  Siliguri Municipality v.  Amalendu Das  , [1984]  2 SCC  436 to grant interlocutory orders for the mere asking. [60IB-E]      1. 2  Although the  powers of the High Courts under Art 226 are far and wide and the Judges must ever be vigilant to protect the  citizen against  arbitrary Executive  action  , nevertheless ,   the Judges have a constructive role to play and therefore there is always the need to use such extensive powers with due circumspection There has to be in the larger public interest  an element  of self-ordained restraint. The effect of  the impugned ad-interim prohibitory order made by the learned Single judge virtually brought to 3 standstill a development  scheme  framed  by  the  Improvement  Trust  in another State. Such arbitrary exercise  of power by the High Court ,   at  the public  expense  ,    reacts  against  the development and  prosperity of  the country  and is  clearly detrimental to the national interest. [606G-H]; C-D] G      2. 1.  The question  whether service of notice is or is not an  integral part  of the cause of action within Art 226 (2) of  the Constitution  must depend upon the nature of the impugned order giving rise to a ’cause of action’. ’Cause of action’ is  a bundle  of facts  which  taken  with  the  law applicable to  them gives  the petitioner  a right to relief against the respondent. [60SE ,  B-C] 600      2 .2  There was  complete lack  of jurisdiction  on the part of the Calcutta High Court to have entertained the writ petition. The  service of  notice under s. 52 (2) of the Act was not  an integral  part of the cause of action within the meaning of  Art. 226  (2) of  the Constitution and therefore the High  Court had  no jurisdiction  to entertain  the writ petition or  issue an  ad-interim prohibitory  order. [601H-

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602A , 605D]      3. In  the instant  case  ,    the  notification  dated February 8 , 1984 issued by the State Government under s. 52 ( 1) of the Act became effective the moment it was published in the  Official Gazette  as  thereupon  the  notified  land became  vested   in  the  State  Government  free  from  all encumbrances. It  was not  necessary for  the respondents to plead the service of notice on them by the Special Officer , Town Planning  Department ,   Jaipur under s. 52 (2) for the grant of  an appropriate  writ ,   direction  or order under Art. 226  of the  Constitution for quashing the notification issued under s. 52 (1). If the respondents felt aggrieved by the acquisition  of their  lands at  Jaipur  and  wanted  to challenge the  validity of  the impugned notification issued by the State Government of Rajasthan under s. 52 (1) ,  by a petition under  Art. 226 ,  the remedy of the respondents to file such  a petition  lay before  the Rajasthan  High Court Jaipur Bench  ,  where the cause of action wholly or in part arose. [605F-H; 606A]

&      CIVIL APPELLATE  JURISDICTION: Civil Appeal NO. 2085 Of 1985.      From the  Judgment and  Order dated  13.3.1984  of  the Calcutta High Court in C. P. NO. 5972 (W) of 1984.      K Parasaran ,  Attn. Genl. and Badridas Sharma for the  Appellants.      G.L. Sanghi  ,   Praveen Kumar and Ashok Mathur for the Respondents.      The Judgment of the Court was delivered by      SEN. ,  J. The issue involved in this appeal by special leave is:  Whether the service of notice under sub-s. (2) of s. 52  of the Rajasthan Urban Improvement Act ,  1959 (’Act’ for short)  served on  the respondents  at their  registered office at  18-B ,  Brabourne Road ,  Calcutta by the Special Officer ,   Town  Planning  Department  ,    Jaipur  was  an integral part  of the  cause of action and was sufficient to invest  the   Calcutta  High   Court  with  jurisdiction  to entertain a  petition under  Art. 226  of  the  Constitution challenging the  validity of a notification dated February 8 ,  1984 issued by the State Government of Rajasthan under S- 5 (21) of the Act for the acquisi- 601 tion of  certain lands  belonging to  them required  by  the Urban Improvement  Trust ,   Jaipur  for a  public  purpose, namely,   for implementation  of a  development scheme  viz. Civil Lines Extension Scheme.      It is  somewhat strange  that a learned Single Judge of the Calcutta  High Court  (R.N.Pyne, J.)  should have by his order dated  March 13,   1984  entertained a  petition under Art. 226  of the  Constitution filed  by the  respondents  , issued a rule nisi thereon requiring the reasons as to why a writ  in  the  nature  of  mandamus  should  not  be  issued directing the  appellants herein,  the State  of  Rajasthan, the Jaipur  Development Authority,    Jaipur  and  the  Land Acquisition Officer,   Jaipur  to forbear from giving effect to the  impugned notification  dated February  8,   1984 and passed an  ad-interim exparte  prohibitory order restraining them from  taking any  steps requiring the respondents under sub-s. (5)  of  52  of  the  Act  to  surrender  or  deliver possession of  the lands  acquired forthwith  or upon  their failure to  do so  to take  immediate steps under sub-s. (6) thereof to secure such possession. We are distressed

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to find that the learned Single Judge despite a long line of decisions of  this Court starting from Siliguri Municipality v. Amalendu  Das (1)  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 exact on the learned Single Judge.      The learned Attorney General appearing for the State of Rajasthan takes  serious  exception  to  the  authority  and jurisdictionof the  learned Single Judge to have entertained the writ  petition filed  by the  respondents and issued the rule nisi and to have made the ad-interim exparteprohibitory order which  virtually has  brought the  entire  acquisition proceedings pending at Jaipur in the State of Rajasthan to a standstill. He  contends that  the  petition  filed  by  the respondents  purporting   to  be   under  Art.  226  of  the Constitution in  the Calcutta  High Court  and the rule nisi thereon and the ad-interim exparte prohibitory order secured by them  on the  basis of  such petition  from  the  learned Single Judge on March 13,  1984 when there was total lack of inherent jurisdiction on the part of (1) [1984] 2 S.C.C. 436 , 602 the  Calcutta  High  Court  to  entertain  such  petition  , constitutes a  flagrant abuse  of the  process of the Court. There is  ,   in our  opinion  considerable  force  in  this submission.      The facts  of the  case are  as follows:  Messrs Swaika Properties Pvt. Limited,  Calcutta owned Khasra No. 383 area 14 bighas  16 biswas  situate in  village Madrampura  on the outskirts of  Jaipur city.  On June  25,   1975 the  Special Officer ,  Town Planning Department,  Jaipur issued a notice under  s.  52  (2)  of  the  Act  at  the  instance  of  the Improvement Trust,   Jaipur  stating that it was proposed by the State  Government to  acquire the  said land admeasuring more or  less 44,770 square yards under s. 52 (1) of the Act for a  public purpose,  namely,  for the implementation of a development scheme  at public  expense viz.  the Civil Lines Extension Scheme,   The  said notice  was duly served on the respondents and they in compliance therewith appeared before the Special  Officer,  Town Planning Department,  Jaipur and filed their  reply dated  September 8,   1975. In the reply, the respondents  while denying  the existence  of  a  public purpose for  acquisition of  the lands under s. 52(1) of the Act asserted  that they  needed the  said land  to start new businesses in the State of Rajasthan and for that purpose to utilize the  notified land  for establishment  of  a  branch office and  for construction of residential houses for their Director and  other Senior  Executives. The  Special Officer adjourned the  case from  - time  to time and issued several notices to  the respondents for personal hearing under s. 52 (3)  of   the  Act.   The   respondents   through      their representative appeared at each of these hearings and sought adjournment  on   one  pretext   or  another.  Significantly although the  respondents participated  in  the  proceedings before  the  Special  Officer,    they  did  not  raise  any objection as  to  the  power  and  authority  of  the  State Government of  Rajasthan to  acquire the notified land under s. 52  (1) of  the Act  or the legality and propriety of the notice issued  by the  Special Officer  under s ,  52 (2) or his jurisdiction  to proceed  with the  inquiry under  s. 52 (3). Nor  did the  respondents place any material before the Special Officer to show that they really needed the notified land  for   the  purpose  of  expansion  of  their  business activities to  the State  of Rajasthan.  It is  pertinent to

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observe that  the respondents  had been shifting their stand before the Special Officer. As already stated ,  they had in their reply  dated September  8,   1975  alleged  that  they genuinely required  the land  for starting new businesses in the State ,  to open a branch office at Jaipur and 603 to construct  residential quarters  for their  Director  and other Senior   Executives  ,   but at  a  later  stage  they alleged that  they wanted to construct a Three Star Hotel on the said  land. Eventually  ,   the Special  Officer by  his order April  9 ,   1976  held that  the alleged  need of the respondents was  just a pretence and he was satisfied on the material on  record that  the land  was really not needed by them bona  fide and  their real  object was  just to get the land released  from acquisition  on one ground or the other. with these  observations  he  rejected  the  prayer  of  the respondents for release of the land and recommended that the entire land  be acquired  by the  State Government  under s. 52(1) of the Act for the Urban Improvement Trust ,  Jaipur , and forwarded  the papers  to the  Secretary  to  the  State Government ,   Town  Planning Department  ,   Rajasthan  for issue of  the requisite  notification under s. 52 (l) of the Act.      It  appears  from  the  material  on  record  that  the respondents having  failed in  their effort  to get the land released from  acquisition then  took up the matter with the State Government.  They made  an application  to  the  State Government on  February 10  , 1977  seeking exemption of the notified land  under s.  20 of  the Urban  Land  (Ceiling  & Regulation) Act  ,  1976 stating that they required the land for construction of a Three Star Hotel. The State Government in the  Urban Development  & Housing  Department  by  letter dated April  4 ,   1977  informed the respondents that there was no possibility of an exemption being granted under s. 20 of the  Act in  their favour  allowing them to retain vacant land in excess of 6,000 square yards for the construction of a Three  Star Hotel.  The State  Government stated  that the remaining land was required by the Urban Improvement Trust , Jaipur for  development of  house sites and for construction of two  ’Ministers’ bungalows  in Civil  lines and therefore the proceedings  for acquisition  of the notified land would not  be   withdrawn.  The   State  Government  required  the respondents to submit detailed proposals in respect of 6,000 square yards  of land  for their  proposed Three  Star Hotel showing commitments  made,  financial resources etc. through the Director  of Tourism,    Rajasthan,    Jaipur  and  were intimated that  they would  be entitled  to retain  the said land on  payment of  the prescribed  fee for  converting the land use  from agriculture  to hotel  business.  Apparently, the respondents were not serious in undertaking the 604 new venture  of starting  a Three  Star Hotel  on an area of 6,000 square  yards as  their real  object was  to  get  the notified land released from acquisition.      The February  21,   1979,   there was  a meeting at the Secretariat in  the Urban  Development &  Housing Department between officers  of that  Department and those of the Urban Improvement   Trust,    Jaipur.  It  was  clarified  on  behalf  of  the Improvement Trust that the notified land in its entirety was needed for  implementation of  the development scheme of the Trust. The Improvement Trust accordingly by its letter dated March 5,  1979 requested the State Government that necessary orders be  passed for  acquisition  of  Khasra  No.  383  in village Madrampura  admeasuring 14  bighas 16  biswas and  a

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notification to  that effect  issued under  s. 52(1)  of the Act. It  was pointed out that a public notice under s. 55(2) of the  Act as  regards the  notified land  had already been issued by  the Special Officer ,  Town Planning Department , Jaipur dated  June 25 ,  1975 ,  and the necessary procedure as laid  down in  sub S.(3) thereof followed. As a result of this  ,     the   State  Government   issued  the   impugned notification dated  February 8 ,  1984 under s. 52(1) Or the Act and  the notified  land vested  in the  State Government free from  all encumbrances.  The State  Government in their special leave  petition have explained that the notification under s.  52(1) of the Act could not be issued till February 8 ,   1984 because the Government were primarily thinking of making the  land available  for construction  of residential houses before  making provisions for construction of a Three Star or  Five Star  Hotel but  nothing came  out of the said proposal as there was no response from the respondents.      Upon these  facts ,  we are satisfied that the cause of action  neither   wholly  nor   in  part  arose  within  the territorial limits  of the Calcutta High Court and therefore the learned Single Judge had no jurisdiction to issue a rule nisi on the petition filed by the respondents under Art. 226 of the  Constitution  or  to  make  the  ad-interim  exparte prohibitory order restraining the appellants from taking any steps to  take possession of the land acquired. Under sub-s. (5) of  s. 52  of the  Act the  appellants were  entitled to require the respondent to surrender or deliver possession of the lands acquired forthwith and upon their failure to do so , take 605 immediate steps  to secure  such possession under sub-s. (6) thereof.      The expression  ’cause of action’ is tersely defined in Mulla’s Code of Civil Procedure:           "The ’cause  of action’  means every  fact which ,      if traversed ,  it would be necessary for the plaintiff      t y  prove in  order to support his right to a judgment      of the Court."      In other  words ,   it is a bundle of facts which taken with the  law applicable to them gives the plaintiff a right to relief  against the defendant. The mere service of notice under s.  52(2) of  the Act  on  the  respondents  at  their registered of ice at 18-B ,  Brabourne Road ,  Calcutta i.e. within the  territorial limits of the State of West Bengal , could not  give rise  to  a  cause  of  action  within  that territory unless  the service of such notice was an integral part of  the cause  of action.  The entire  cause of  action culminating in the acquisition of the land under s. 52(1) of the Act  arose within the State of Rajasthan i.e. within the territorial jurisdiction  of the Rajasthan High Court at the Jaipur Bench.  The answer to the question whether service of notice is an integral part of the cause of action within the meaning of  Art. 226(2) of the Constitution must depend upon the nature  of the  impugned order giving rise to a cause of action. The  notification dated February 8 ,  1984 issued by the State  Government under  s.  52(1)  of  the  Act  became effective the  moment  it  was  published  in  the  official Gazette as  thereupon the notified land became vested in the State Government  free from  all encumbrances.  It  was  not necessary for the respondents to plead the service of notice on them by the Special Officer ,  Town Planning Department , Jaipur under s. 52(2) for the grant of an appropriate writ , direction or  order under  Art. 226  of the Constitution for quashing the  notification issued  by the  State  Government under s. 52(1) of the Act. If the respondents felt aggrieved

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by the  acquisition of  their lands  situate at  Jaipur  and wanted to  challenge the validity of the notification issued by the  State Government  of Rajasthan under s. 52(1) of the Act by  a petition under Art. 226 of the Constitution ,  the remedy of the respondents of the grant of such relief had to 606 be sought  by filing  such a  petition before  the Rajasthan High Court  ,   Jaipur Bench  ,   where the  cause of action wholly or in part arose.      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 exparte prohibitory order the effect of  which ,   as the learned Attoreny General rightly complains ,   was  virtually to  bring  to  a  standstill  a development scheme  of the Urban Improvement Trust ,  Jaipur viz. Civil  Lines Extension  Scheme ,   irrespective  of the fact whether  or not  the High  Court  had  any  territorial jurisdiction to  entertain a  petition under Art. 226 of the Constitution. Such  arbitrary exercise  of power by the High Court at  the public  expense reacts against the development and prosperity  of the country and is clearly detrimental to the national interest.      Quite recently  ,   Chinnappa Reddy  ,  J. speaking for the Court  in Assistant  Collector of Central Excise ,  West Bengal v.  Dunlop India  Limited  and  Ors.(1)  administered strong admonition deprecating the practice of the High Court of granting ad-interim exparte orders which practically have the effect  of the  grant of the main relief in the petition under Art.  226 of the Constitution irrespective of the fact whether the  High Court  had any territorial jurisdiction to entertain such a petition or whether the petition under Art. 226 was  intended and  meant to  circumvent the  alternative remedy provided  by law  or filed  solely for the purpose of obtaining  interim   orders  and   thereafter  delaying  and protracting the  proceedings by  one  device  or  the  other particularly  in  matters  relating  to  public  revenue  or implementation of various measures and schemes undertaken by the Government  or the  local authorities for general public benefit. Although  the powers  of the High Courts under Art. 226 of the Constitution are far and wide and the Judges must ever be  vigilant to  protect the  citizen against arbitrary executive action  ,   nonetheless  ,    the  Judges  have  a constructive role  and therefore there is always the need to use such extensive powers with due circumspection. There has to be  in the  larger public  interest an  clement of  self- ordained restraint. We hope (1) [19851 1 S.C.C. 260. 607 and trust  that the  High Court will determine the extent of its   territorial    jurisdiction   before    making    such interlocutory orders.      In the  result ,   the  appeal succeeds  and is allowed with costs. The impugned orders passed by the learned Single Judge of  the Calcutta  High Court  dated March  13 ,   1984 issuing a rule nisi on the petition filed by the respondents under Art.  226  of  the  Constitution  and  the  ad-interim exparte prohibitory  order made by him are set aside and the proceedings before  the Calcutta  High Court are quashed. We quantify the costs at Rs. 5,000. N.V.K.                                       Appeal allowed. 608

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