ORDER
1. In the instant writ application, the writ petitioner M/s. D.R.M. Steel Industries (P.) Ltd., a company having its registered office at 19, British India Street, Calcutta-69 has challenged an order dated 15th October, 1993 passed by the Board for Industrial and Financial Reconstruction, Special Bench No. 1 New Delhi (hereinafter referred to as B.I.F.R.) in case No. 2/90, whereby the B.I.F.R. has rejected the reference made by the petitioner company under Section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 and closed the proceeding for want of jurisdiction.
2. It is the case of the petitioner company that it is engaged in the running of a mini steel plant at Ulashnagar, Murbad Road in Maha-rashtra, on the basis of a Conductorship Agreement entered into by and between the petitioner company and the respondent No. 5. The petitioner company is 40% shareholder of the respondent No. 5. The petitioner company experienced an adverse performance since 1987 and it accumulated losses equal to and/or exceeding its entire Net Worth and suffered also cash losses. Accordingly, the petitioner company made a reference to the B.I.F.R. under Section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the said Act). By an order dated 25th July, 1990 B.I.F.R. observed that the company could not make its net worth positive on its own and though it is necessary in the public interest, to consider the possibility of rehabilitating the petitioner company. Accordingly by the order the B.I.F.R. under Section 17(3) of the said Act appointed State Bank of India as Operating Agency to prepare the rehabilitation scheme for the petitioner company. The matter was heard again by the B.I.F.R. on 6th December, 1991 when after hearing all the parties B.I.F.R. directed the petitioner company to submit a copy of the Conductorship Agreement with M/s. B. R. Harman and Mohta Private Ltd., being the respondent No. 5 herein, by 9th December, 1991 and the State Bank of India as the Operating Agency was also directed to examine the said agreement with reference to Section 3(1)(f) of the said Act in consultationwith their legal department and submit theit report along with the legal opinion, to the Bench within 20th December, 1991. Pursuant to the said order State Bank of India by its letter dated 16th December, 1991 submitted a report along with the legal opinion before the B.I.F.R.
3. On 21st January, 1992 after further hearing the matter as also considering the legal opinion submitted by the State Bank of India and considering the interpretation of the word 'owner' in Section 3(f) of the Industrial (Development) Regulations Act, 1951, the B.I.F.R. came to a finding that the ultimate control over the affairs of the Undertaking, in the instant case, rests with D.R.M. Steel Industries Pvt. Ltd. as they are controlling the affairs of the respondent No. 5 company de facto and de jure while the respondent No. 5 is getting the conductorship fees only and in view of the foregoing position, B.I.F.R. was satisfied that such Industrial Undertaking is an Undertaking within the meaning of Section 3(3)(f) of the said Act. On the said date B.I.F.R. also directed the Operating Agency to submit to revise their Viability Study Report and Rehabilitation Package in the light of the discussion held in such hearing.
4. It is the contention of the petitioner that it will appear from the said order that B.I.F.R. was satisfied that the Reference made by the petitioner company was maintainable. The petitioner in the meantime also filed a suit being Regulation Civil Suit No. 57 of 1993 in the Court of the Civil Judge (J. D.) Ulashnagar, in February, 1993 against the respondent No. 5 for declaration for title as also for permanent injunction and obtained ad interim order restraining the respondent No. 5 from dispossessing the petitioner company from the said premises until further orders. It is the further case of the petitioner company that the said case being No. 2/90 was taken up by the concerned Bench of the B.I.F.R. on two more occasions.
5. Ultimately the matter was again taken up for hearing on 15th October, 1993 when the representative of the petitioner company came to learn that the respondent No. 5 had filed a petition before the B.I.F.R. but as no copy of the application was served upon the petitioner company, the representative of the petitioner company submitted before the, B.I.F.R. to direct the respondent No. 5 to serve a copy of the said application upon the petitioner to enable the petitioner company to file its reply. But such prayer was not heeded to the B.I.F.R. and the matter was taken up for hearing when representative of the petitioner company made his submissions. As the hearing continued till 4 p. m. on that day and 10th and 17th October were holidays, the petitioner on 18th October on the first available opportunity made a representation to the B.I.F.R. for considering its written objection before passing any order. Thereafter the petitioner company from a communication dated 16th October, 1994 of an Advocate of respondent No. 5, came to know that the B.I.F.R. by an order dated 15th October, 1994 has rejected the reference and closed the proceeding on the ground of want of jurisdiction on the basis of the application of the respondent No. 5.
6. It is the contention of the petitioner that the aforesaid order passed by the B.I.F.R. is arbitrary, capricious and is in clear violations of principle of natural justice as such order was passed on consideration of the application made by the respondent No. 5 wherein the question of maintainability was raised, although no copy of the said application was served upon the petitioner company. It has been further contended by the petitioner that B.I.F.R. already passed an order dated January 21, 1992 after being satisfied that the petitioner company is a sick industry within the meaning of Section 3(l)(f) of the said Act and the proceeding in connection thereof are maintainable, by the subsequent order dated 15th October, 1993 the reference could not have been rejected on the ground of want of jurisdiction as such already having been decided by the B.I.F.R. it was found by its earlier decision under the principle of res judicata or principle analogous thereto. It has been further contended that before passing the impugned order the B.I.F.R. did not consider the submissions made by the petitioner company that the concept of ownershipwas a broad concept and covered all rights relating to an Industrial Undertaking. Even an Industrial Undertaking be situated on leasehold land cannot cease to be an industrial undertaking or the company owning it shall not cease to be an industrial company and such undertaking still remains within the jurisdiction of the B.I.F.R. if it becomes sick.
7. The petitioners in the writ petition have prayed for issue of a writ in the nature of certiorari for quashing the impugned order as also for issue of writ in the nature of mandamus commanding the B.I.F.R. to its proceeding in relation to the aforesaid reference being case No. 2/90 and to decide the reference in merits and in accordance with law.
8. It may be noted in this connection that the instant writ petition was moved before the vacation Court on 23rd October, 1993 when the Hon'ble Justice M. G. Mukherji in view of the urgency dispensed with the requirement of service under Rule 27 of the Constitution and passed a Civil Order including an interim order in terms of the prayer (e) of the writ petition till one week after long vacation. Such interim order was subsequently extended from time to time. It appears that a Special Leave Petition under Article 136 of the Constitution was filed by the respondent No. 5 before the Hon'ble Supreme Court against the said order wherein several points were raised by the respondent No. 5 including the point of lack of jurisdiction of this High Court. The Supreme Court ultimately by an order dated 28th February, 1994 dismissed the Special Leave Petition with liberty to the respondent No. 5 to approach the High court in the pending petition. While dismissing the Special Leave Petition, the Supreme Court after recording the submissions made on behalf of the respondent No. 5 that the order dated 15th October, 1993 passed by the B.I.F.R. was appealable order and infact an appeal had been filed and consequential recourse to the parallel proceeding under Article 226 of the Constitution was not justified and that this High Court had no jurisdiction to entertain the matter and it was not a fit case in which an ex parte injunction should have been kept open (sic).
9. The respondent No. 5 contested the application by filing affidavit-in-opposition. In its affidavit-in-opposition the respondent No. 5 has raised a preliminary objection, namely, this Court does not have any territorial jurisdiction to entertain and try the instant writ petition. According to the respondent No. 5 either the Delhi High Court under whose jurisdiction the B.I.F.R. situates or the Bombay High Court under whose jurisdiction the factory in question situates, has the territorial jurisdiction. It has also been contended by the respondent No. 5 that the petitioner No. 1 having exhausted the alternative remedy by way of an appeal before the Appellate Forum this writ application is liable to be dismissed. It has also been contended that the petitioner company cannot be said to be an industrial company within the meaning of Section 3(1)(e) of the said Act since it did not own mini steel plant in question and the petitioner company had no right, title or interest of any nature therein.
10. On the question raised by the respondent as to whether this Court has territorial jurisdiction to entertain and try the instant writ petition, it has been submitted by Mr. Pranab Kumar Roy, learned Counsel appearing for the petitioners that since the impugned order discharging the reference affects the working of the petitioner company at its registered office in Calcutta and causes a legal injury there and the impugned order exposes the petitioner company to proceedings including winding up proceedings which can only be initiated against the petitioner company at its registered office at Calcutta, this Court has the territorial jurisdiction to entertain and try this application. It has been further contended on behalf of the petitioner that the registered and the principal office of the petitioner company being situated in Calcutta and all vital and policy decisions as to the running of the said mini steel plant under the Conductorship Agreement having been taken from the registered and principal office of the petitioner company in Calcutta and all steps and/or actions in respect of the said mini steel plant including the referencemade to the B.I.F.R. having been taken from and having emanated from the principal and registered office of the petitioner company at Calcutta and all orders including the impugned order and notices passed issued from time to time by the B.I.F.R. being directed and issued against the Chairman-cum-Man-aging Director of the petitioner company at its registered office at Calcutta, a part of the cause of action certainly arose within the jurisdiction of this Hon'ble Court and therefore this Court has the jurisdiction to entertain and try this application. In support of the aforesaid contention learned Counsel appearing for the petitioner relied on the decision of the Supreme Court in the case of Union of India v. Oswal Woollen Mills, reported in : [1985]154ITR135(SC) the decision in the case of Stride-Well Leathers v. Bhankerpur Simbhaoli Beverages (P.) Ltd., reported in : AIR1994SC158 as also the decision of a Division Bench of this Court in the case of Union of India v. Hindustan Aluminimum Corpn. Ltd., reported in : AIR1983Cal307 and the decision of the Karnalaka High Court in the case of M/s. Balaji Vegetable Products (P.) Ltd., Bangalore v. Union of India, reported in : AIR1987Kant113 .
11. As to the other preliminary point raised by the respondents namely that the petitioners not having exhausted the alternative remedy by way of an appeal provided under the said Act itself this writ petition is not maintainable, it has been contended by Mr. Roy inter alia that the theory of exhaustion of alternative remedy before moving the writ application is more a public policy than a rule and the existence of alternative remedy never has been held to absolute bar for moving the writ petition, specially in the matter of issue of a writ in the nature of Certiorari and in cases when, the order impugned is bad because of lack of jurisdiction or is in violation of principles of natural justice, it is open to an aggrieved party to invoke the jurisdiction the writ petition straightway without exhausting alternative remedy. It has been contended that the impugned order having been passed by the B.I.F.R. without giving a proper opportunity of hearing to the petitioner and without even directing service of the copy of the application the same is in violation of principles of natural justice and accordingly, the petitioner is entitled to challenge the same order under Article 226 of the Constitution without exhausting the alternative remedy. It has been further contended that in any event the impugned order is absolutely void and is wholly without jurisdiction inasmuch as the B.I.F.R. already having held by its earlier order that petitioner company is a sick industrial unit within the meaning of Section 3(1)(f) of the said Act, such order could not have been recalled or reviewed by the impugned order dated 15th October, 1993, in absence of any such power of the B.I.F.R. to review such order and accordingly the petitioner is entitled to move the Writ Court straightway without exhausting the alternative remedy by way of an appeal.
12. It has been further contended on behalf of the petitioner in this connection the fact that the petitioner preferred an appeal against the impugned order, but subsequently has withdrawn the same is also not relevant or does not disentitle the petitioner to move the writ application as the impugned order being without jurisdiction and being in violation of principles of natural justice is a nullity and is non est in the eye of law and therefore there cannot be any appeal against a non est order. It has been contended that after passing of the impugned order, the B.I.F.R. having declined to stay such order in spite of the prayer made by the petitioner, the petitioner preferred an appeal against such order having no other alternative but to do so. But after respondent No. 5 moved the Hon'ble Supreme Court and the Hon'ble Supreme Court remanded the entire matter to the trial Court, the petitioner has withdrawn the appeal being advised that the impugned order being totally without jurisdiction and therefore being void and nullity, Was not an order in the eye of law at all and therefore the question of preferring the said appeal does not arise. In support of such submission that the existence of an alternative remedy is not an absolute bar to move a writ petition, the petitioner has relied upon the decision of the Supreme Court in the case of M/s. Baburam Prakash v. Antarim ZillaParishad, Muzaffarnagar, reported in : [1969]1SCR518 , in the case of State of Uttar Pradesh v. M/s. Indian Hume Pipe, reported in : AIR1977SC1132 and in the case of Ram and Shyam Co. v. State of Haryana, reported in : AIR1985SC1147 .
13. Since the aforesaid two questions have been raised by the respondents as a preliminary point and the maintainability of the writ petition depend on the determination of the abovementioned two questions, it is necessary to decide the abovementioned two questions first.
14. Mr. Mohta, learned Counsel appearing for the respondents has submitted inter alia this Court has no territorial jurisdiction to entertain and try this application as no part of cause of action has arisen within the territorial jurisdiction of this Court. It has been submitted on behalf of the respondents the fact that the registered office of the petitioner company is at Calcutta is not relevant as the same is not a cause of action. It has been further submitted on behalf of the respondents that there is no allegation in the writ petition that any cause of action has arisen within the jurisdiction of this Court and feeling of consequences of the impugned order at Calcutta would not constitute cause of action and therefore this Court has no jurisdiction to entertain and try this application. In support of the contention that the existence of having registered office in Calcutta and/or feeling of consequences Would not constitute cause of action the respondents have relied upon the decision of this Court, reported in AIR 1970 Cal 70 (sic); (1987) 30 ELT 124 (Cal); (1991) 95 Cal WN 283 and (1986) 90 Cal WN 438. It has been further contended that the respondents in the writ petition being outside the territorial jurisdiction of this Court, this Court cannot have territorial jurisdiction to entertain and try this application. It has been further contended on behalf of the respondents that the petitioner after having preferred an appeal and thereafter having withdrawn the same without any permission the principles of res judicata or principles analogous thereto will apply. In this connection the decision of the Supreme Court, reported in : [1987]1SCR200 and of the Gujarat High Court, reported in : AIR1975Guj182 have been relied upon.
15. In support of the contention that the petitioner cannot maintain a writ petition not having exhausted the alternative remedy provided under the Act the decisions, reported in : AIR1992SC2279 have been relied upon.
16. After considering the respective submissions of the parties I am unable to accept the contention of the respondents that this Court has no territorial jurisdiction to entertain and try the instant writ application.
17. The writ petitioner in the instant writ application has challenged the impugned order passed by the B.I.F.R. rejecting the reference made by the petitioner company under Section 15 of the said Apt. Such reference was made to the B.I.F.R. under the said section of the said Act from the registered office of the company which situates in Calcutta within the territorial jurisdiction of this Court and because of the aforesaid rejection of such reference made by the B.I.F.R., the legal injury which has been suffered by the petitioner company is at registered office in Calcutta within the territorial jurisdiction of this Court. The company has a legal right under Section 15 of the said Act to make a reference to the B.I.F.R. for determination of the measures which shall be adapted with respect to the company as a sick industrial company, but the B.I.F.R. having rejected such reference, such right of the company has also been infringed at the registered office of the company. Such a legal injury of the petitioner company because of the impugned order passed by the B.I.F.R., at its registered office is certainly an actual injury and the effect of the impugned order passed by the B.I.F.R. upon the petitioner company is also direct and proximate to the impugned order and not indirect or remote. Apart from the legal injury and infringement of the right of the petitioner company to make such reference caused by the impugned order passed by the B.I.F.R., the effect of such rejection is exposure of the petitioner company to both civil and criminal proceedings by its creditorsat the registered office of the company in Calcutta which in my view cannot be said to be an indirect or remote effect.
18. In the writ petition it has been specifically pleaded that the impugned order dated 15th October, 1993 passed by the B.I.F.R. was communicated to the petitioner company in Calcutta which has not been denied by the respondent No. 5 in affidavit-in-opposition. It has been also specifically pleaded in para 25 of the writ petition if the impugned order is allowed to stand the petitioner will be exposed to both civil and criminal proceedings that may be brought by its creditors.
19. As the legal injury because of the passing of the impugned order is caused by the petitioner company at its registered office in Calcutta and right of the company to apply under Section 15 of the said Act for reference has also been infringed at its registered office at Calcutta because of the impugned order and effect of the same upon the company is also direct and not remote, a part of cause of action certainly has arisen within the territorial jurisdiction of this Court.
20. In the Division Bench decisiqn of this Court in the case of Everest Coal Company Pvt. Ltd. v. Coal Controller, reported in (1986) 90 Cal WN 438 it was held inter alia that the question whether 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 or not is to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution; in order to maintain a writ application the petitioner has to establish within the territorial limits of the Court's jurisdiction prima facie a legal right claimed by him has either been infringed or is threatened to be infringed by the respondents and such infringement may take place by causing him actual injury or threat thereof. It was further held by the Division Bench in the said decision for the purpose of actual cause of action for filing a writ petition it is also necessary to make a distinction between actual or apprehended injury to the writ petitioner and indirect effect or remote consequences upon him; that for giving rise to cause of action for filing a writ petition what is material is whether or not within the territorial limits of the said High Court there has been proximate or direct effect among the petitioner. The Division Bench in the said case in para 10 also held that the correct test would be to find out whether by reason of the making of the impugned orders the appellant/petitioner is likely to suffer any loss of injury within the territorial limit of this Court and merely feeling of an alleged effect of the order would not constitute cause of action.
21. It is true, as contended by the learned Advocate appearing for the respondents that the mere fact that the registered office of a company is within the territorial jurisdiction of a particular High Court ipso facto would not create a cause of action for the purpose of entertaining the writ petition by the said High Court. The same is also the view of the Division Bench of this Court in the aforesaid case of Everest Coal Company v. Coal Controller, reported in (1986) 90 Cal WN 438 wherein it was held that the mere fact that the registered office of the company is within the territorial jurisdiction of a particular High Court does not give a cause of action for the purpose of entertaining the writ petition by the said High Court.
22. But in my view, there cannot be a straight jacket formulae for the purpose of determining whether a cause of action or a part thereof has arisen within the territorial jurisdiction of a High Court for entertaining the writ application. The same in my view is a question of fact which may vary from case to case. As it has been held by the Division Bench in the aforesaid case of Everest Coal Company v. Coal Controller (supra) the question whether 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 or not is to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. The correct test would be to find out as to whether for the reason of making the impugned order the petitioner is likely to suffer loss of injury within the territorial limits of the Court in question.
23. In a proceeding for reference, enquiry and preparation of scheme before the B.I.F.R. under the said Act, such a proceeding under Section 15 of the said Act can be initiated either by the industrial company which has become sick under sub-section (1) or the Central Government or the Reserve Bank or the State Government or a public financial institution or a State level institution or a scheduled bank under sub-section (2). Under sub-section (1) of Section 15, where an industrial company has become sick industrial company, the Board of Directors of the Company within sixty days from the date of finalisation of the duly audited accounts of the company for the financial year as at the end of which the company has become a sick industrial company, make a reference to the Board for determination of the measures which shall be adopted with respect to the company: Provided that if the Board of Directors had sufficient reasons even before such finalisation to form the opinion that the company had become a sick industrial company, the Board of Directors shall, within sixty days after it has formed such opinion, make a reference to the Board. Under Section 22 of the said Act where in respect of an industrial company, an enquiry under Section 16 is pending or any scheme referred to under Section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under Section 25 relating to an industrial company is pending, then notwithstanding anything contained in the Companies Act, 1956 or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof shall lie or be proceeded with further, except with the consent of the Board or as the case may be, the Appellate Authority. Under sub-section (3) of the said Act during the period of consideration of any scheme under Section 18 or where any such scheme is sanctioned thereunder, for due implementation of the scheme, the Board may by order declare with respect to the sick industrial company concerned that the operation of all Or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force, to which such sick industrial company is a part or which may be applicable to such sick industrial company immediately before the date of such order, shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder before the said date, shall remain suspended or shall be enforceable with such adaptations and in such manner as may be specified by the Board; Under sub-section (4) of the said Act when any declaration is made the same shall have effect notwithstanding anything contained in Companies Act, or any other law, the memorandum and articles of association of the company or any instrument having effect under the said Act or other law or any agreement or any decree or order of a Court, tribunal, officer or other authority or of any submission, settlement or standing order and accordingly any remedy for the enforcement of any right, privilege, obligation and liability suspended or modified by such declaration, and all proceedings relating thereto pending before any Court, tribunal, officer or other authority shall remain stayed or be continued subject to such declaration.
24. It will thus appear from the aforesaid provisions, the right of a sick industrial company to make a reference under Section 15 to the B.I.F.R. is indeed a very valuable right granted by the legislature to a sick industrial unit for the purpose of ultimately availing the benefit as to the suspension'of legal proceedings, contracts, settlements etc. under Section 22 of the said Act, obviously for the ultimate purpose of enquiring the sick industrial company to revive itself. Such a reference is made under Section 15 to the B.I.F.R. from a registered office of the company after the decision by the Board of Directors as aforesaid. If such reference is therefore rejected by the B.I.F.R. and the same is not accepted or any ground, such a valuable right of the company concerned is certainly effected a legal injury is caused to the company at its registered office and it makesthe company defenceless against all sorts of actions by its creditors and claimants againt the company whether under the Companies Act or under the general law or for winding up the company or for execution of a decree in respect of any claim or enforcement or right, privilege, obligation or liability or likewise. The legal injury which therefore is caused or is likely to be caused for rejection of such reference, is real and not remote. In a proceeding of such nature therefore a part of cause of action certainly arises within the territorial jurisdiction of the High Court, under which a registered office of the company situates and wherefrom the reference is made.
25. In the case of Union of India v. Hindustan Aluminium Corpn. Ltd., reported in : AIR1983Cal307 , another Division Bench of this High Court held that the part of cause of action did arise within the jurisdiction of Calcutta High Court it was specifically pleaded in the writ petition that in view of the impugned order the company has been suffering loss in absence of sale of aluminium products, produced and manufactured where the principal office is situated. This decision was considered in the case of Everest Coal Company v. Coal Controller, (1986 (90) Cal WN 438) (supra).
26. In the case of Union of India v. Oswal Woollen Mills Ltd., reported in : [1985]154ITR135(SC) the company which had its registered office at Ludhiana in Punjab and a branch office at Calcutta moved a writ petition in the Calcutta High Court to prevent or to quash an apprehended or operative action under Clause 8(b) of the Import Control Act passed in Delhi. The Supreme Court was of the view the writ petition should have been filed either in the High Court of Punjab where the registered office of the company is situated or in the Delhi High Court where office of the Principal respondent situates.
27. In the case of Balaji Vegetables Co. Ltd., Bangalore v. Union of India : AIR1987Kant113 where the petitioner's company had its registered office at Bangalore and challenged the order rejecting the application of the petitioner company sent from its registered office for transfer of industrial licence by the Central Govt. A learned single Judge of Karnataka High Court held that the part of cause of action arose within the jurisdiction of the Karnataka High Court as the communication intimating taking over of the industrial undertaking was sent from the registered office of the company at Bangalore and the impugned communication was sent to its Bangalore address and the impact of the order is directly felt by the company at Bangalore within the jurisdiction of Karnataka High Court.
28. The learned Advocate of the respondents has relied on the decision of the Sup-reme Court in the case of State of Rajasthan v. Swaika Properties, reported in : [1985]3SCR598 wherein it was held by the Supreme Court inter alia that service of notice of acquisition of the properties at Rajasthan upon the registered office of the company at West Bengal did not form an integral part of cause of action within the jurisdiction of the Calcutta High Court to entertain and try the writ application challenging such acquisition. In my view, such decision of the Supreme Court is clearly distinguishable inasmuch as the Supreme Court took such view because of a specific finding that the entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act in question arose within the State of Rajasthan as the impugned notification under Section 52(1) of the Act became effective the moment it was published in the official gazette and the land in question vested in the State free from all encumbrances immediately with the publication of such notification in the official gazette.
29. The other decision relied upon by the learned Advocate appearing for the respondents by different learned single Judges of this Court need not be adverted to in view of the abovementioned decision of the Supreme Court in the Oswal Woollen Mill case : [1985]154ITR135(SC) and the abovementioned two Division Bench decisions of this Court in the case of Hindustan Aluminium Corporation : AIR1983Cal307 and in the case of Everest Coal Company (1986 (90) Cal WN 438).
30. Because of the reasons stated above, I hold that this Court has the territorial jurisdiction to entertain and try the writ petition.
31. The other preliminary point which has been raised by the respondents is that in view of the existence of alternative remedy under the Act itself by way of appeal and in view of non-exhaustion of such remedy, the instant writ application is not maintainable.
32. It is however, well settled that existence of alternative remedy is not at all an absolute bar to entertain and try the writ application.
33. It has been rightly contended by Mr. Roy appearing for the writ petitioner that the theory of exhaustion of alternative remedy before moving a writ application is accepted as a matter of public policy then a rule and existence of alternative remedy is never treated as an absolute bar for moving the writ application, specially in the matter of issue of writ in the nature of certiorari and when the impugned order is bad because of lack of jurisdiction or being in violation of principles of natural justice. The decisions of the Supreme Court, reported in : AIR1973SC2350 , : AIR1977SC1132 , supports such contention of the petitioner.
34. In the instant case, writ petitioner has challenged the impugned order both on the ground of violation of principles of natural justice as also on the ground that the impugned order passed by the B.I.F.R. was wholly without jurisdiction and void inasmuch as such order had the effect of reviewing its earlier order dated 21st January, 1992 but the B.I.F.R. had no jurisdiction to review its order.
35. I am, therefore, unable to accept thesecond preliminary objection also raised by the respondents and the same is also rejected.
36. As to the merits of the writ petition one of the main contention of the writ petitioner is that the impugned order passed by the B.I.F.R. was wholly without jurisdiction and void as the same amounted to review of its own order passed earlier, but the B.I.F.R. has no jurisdiction under the Act to review its own order.
37. It has been contended that by an order dated 21st January, 1992 after considering all aspects of the matter the B.I.F.R. passed an order wherein it was held that the ultimate control over the affairs of the undertaking at Ulashnagar rested with the petitioner company as the petitioner company is controlling the affairs of the company de facto and de jure while the respondent No. 5 was getting the conductorship fees only. In the said order, the B.I.F.R. also expressed the view that they were satisfied that such industrial undertaking is an undertaking within the meaning of Section 3(1)(f) of the Act. The concerned Bench of the B.I.F.R. directed the Operating Agency to revise their Viability Study Report and Rehabilitation Package in the light of the discussions held in the said hearing and accordingly directed the Operating Agency to submit its revised report which it did. It is contended that when the matter was taken up for hearing on 15th October, 1993 again to consider the application of the respondent No. 5, the B.I.F.R. could not have reviewed its earlier order by holding that the petitioner company did not own an industrial undertaking within the meaning of Section 3(1(e) of the said Act read with Section 3(f) of the said Act, but merely a licensee and therefore, the reference in the instant case is not maintainable. A number of decisions have been relied upon by the petitioner company in support of its contention the power of review is creature of statute and the said Act not having given such power either expressly or impliedly to the B.I.F.R. such order passed by the B.I.F.R. was wholly without jurisdiction and void.
38. The learned Advocate for the respondents on the other hand has contended inter alia that the impugned order passed by the respondents cannot be said to have been passed by way of review; that the order datefl 21st January, 1992 was not an order accepting the reference and the impugned order was a final order rejecting reference under Section 15 of the said Act and B.I.F.R. had never jurisdiction to pass such order.
39. I am however not inclined to go into such question, namely, whether the impugned order passed by the B.I.F.R. was in effect a review of its earlier order dated January 21, 1992 and hence without jurisdiction, it having no power of review, as in my view the challenge of the impugned order of the petitioner on the other ground namely the B.I.F.R. acted in violation of principles of natural justice in passing the said order is of quite substance and the impugned order cannot be sustained on such ground.
40. It is not disputed that from time to time hearing took place before the B.I.F.R. relating to various steps and/or actions with regard to the reference made by the petitioner company and by an order dated 6th December, 1991 the B.I.F.R. directed the petitioner company to submit a copy of the Conductor-ship Agreement with the respondent No. 5 by 9th December, 1991 and the Operating Agency was also directed to examine the said agreement with reference to Section 3(1(f) of the said Act in consultation with its Legal Department and to submit their report along with the legal opinion within 20th December, 1991. The Operating Agency pursuant to such order submitted a report along with legal opinion. In consideration of the same and all aspects of the matter the B.I.F.R. passed an order on January 21, 1992 holding inter alia that the ultimate control over the affairs of the undertaking rested with the petitioner company as they were controlling the affairs of the company de facto and de jure, while the respondent No. 5 was getting the Conductor-ship fees only and the B.I.F.R. also expressed their view that they were satisfied that such industrial undertaking is an undertaking within the meaning of Section 3(1(f) of the said Act. The Bench of the B.I.F.R. on the said day also directed the Operating Agency to revise their Viability Study Report and Rehabilitation Package in the light of the discussions held in the said hearing. Accordingly, the Operating Agency submitted their Revised Scheme as to the Viability Study Report and Rehabilitation Package before the B.I.F.R. on 6th December, 1992.
41. Under such circumstances on 15th October, 1993 when the B.I.F.R. entertained and considered the application, of the respondent No. 5 before the B.I.F.R. contending that the industrial undertaking at Ulashnagar was not an undertaking within the meaning of Section 3(1)(f) of the said Act and therefore, reference is not maintainable at the instance of the petitioner company, the B.I.F.R. could not have considered the same without giving proper opportunity of hearing to the petitioner company.
42. It is specifically pleaded in the writ petition that such application made by the respondent No. 5 was never served upon the petitioner company and in spite of such fact on the basis of contention raised in the said application that the industrial undertaking at Ulashnagar was not owned by the petitioner company and therefore was not an undertaking within the meaning of Section 3(1)(f) of the said Act, the B.I.F.R. came to finding that the reference is not maintainable at the instance of the petitioner company. It is specifically pleaded in the writ petition that when the B.I.F.R. took up the application for hearing, in spite of the fact that the representative of the petitioner company drew the attention of the B.I.F.R. that copy of the application was not served upon the petitioner company and therefore time should be granted the B.I.F.R. ignored such fact and continued the hearing. Such allegations have not been properly denied by the respondent No. 5 in his affidavit in opposition. The allegation that at the conclusion of the hearing a written objection was filed before the B.I.F.R. on 15th October, 1993 contending inter alia that respondent No. 5 (Respondent No. 1?) already by its earlier order has held that the petitioner company is in the control industrial undertaking at Ulashnagar both de facto and de jure and therefore the same is an industrial undertaking within the meaning of Section 3(1)(f) of the said Act and therefore, B.I.F.R. could not have passed any order without considering the same, has also not been denied by the respondent No. 5. It also does not appear from the impugned order dated 15th October, 1993 that B.I.F.R. while allowing the application by the respondentNo. 5 and rejecting the reference ever applied its mind to the fact that by its earlier order dated January 21, 1992 it had already come to such a finding that the said industrial undertaking is controlled by the petitioner company and therefore the same is an undertaking within the meaning of Section 3(1)(f) of the said Act.
43. Under such circumstances, I accept the contention of the petitioner that there has been violation of principles of natural justice on the part of the B.I.F.R. in hearing the said application, on the aforesaid date in the manner as aforesaid without serving of the copy of the said application upon the petitioner company and without giving proper opportunity of hearing to the petitioner company. Admittedly, B.I.F.R. already having come to such finding by earlier order dated January 21, 1992, the petitioner company had every right to contest the aforesaid application made by the respondent No. 5 and to make all submissions in support of the maintainability of the reference including the submission that B.I.F.R. already having held by its previous order that the ultimate control of the industrial undertaking at Ulashnagar is with the petitioner company the same is an industrial undertaking within the meaning of Section 3(1)(f) of the said Act, the B.I.F.R. had no jurisdiction to review such order or the same is barred by principles of res judicata or analogous thereto.
44. That apart since admittedly such a finding was arrived at already by. its earlier order dated January 21, 1992 in my view, the B.I.F.R. by its impugned order dated 15th October, 1993 could not have arrived at such a finding without applying its mind to the question whether in view of. such aforesaid earlier finding it is open to B.I.F.R. to go into such question once again or whether there is any bar to do so or whether it should do so. It appears that this aspect of the matter has not been gone at all.
45. For the reasons stated above, the impugned order passed by the B.I.F.R. is liable to be set aside and the writ application is liable to succeed on this point alone and the matter is required to be remanded back to the B.I.F.R. for consideration of the aforesaid question and the application made by the respondent No. 5 afresh.
46. Accordingly, it is not necessary for this Court to go into this question whether in view of the fact that the petitioner company preferred an appeal against the impugned order and thereafter withdrew the same would operate as res judicata, as the impugned order cannot be sustained being in violation of principles of natural justice and therefore is void and non est in the eye of law.
47. The application is therefore allowed. The impugned order dated 15th October, 1993 passed by the B.I.F.R. in case No. 2/90 is set aside. The respondent No. 1 is directed to proceed afresh with case No. 2/90 from the stage prior to the order dated 15th October, 1993 and to consider the application made by the respondent No. 5 de novo after giving proper opportunity of hearing to all the parties. The respondent No. 5 shall serve copy of such application upon the petitioner company and the petitioner company will be entitled to file written objection to the same.
48. It is made clear, nothing has been decided on merits by this Court as to the merits of the aforesaid application made by the respondent No. 5 or on the questions raised therein and all the parties will be entitled to raise all points in support or in opposition of such application before the B.I.F.R. and all points are kept open including the question whether the decision of B.I.F.R. by its earlier order dated January 21, 1992 will operate as res judicata or under principles analogous thereto or whether B.I.F.R. has power to review its earlier order dated January 21, 1992 or whether the entertaining of the application of the respondent No. 5 will at all amount to review.
49. There will be no order as to costs.
50. Application allowed.