IN THE HIGH COURT OF CALCUTTA 

Appearances : S. K. Ghosh & Abhijit Basu for the Appellants/Petitioners. Jayanta Mitra, Ranjan Deb, D. N. Mitra & R. Banerjee for the Respondent. 

JUDGMENT 

1. This appeal is directed against a judgment and order dated 18th March, 1999 passed by a learned Single Judge of this court in AST No. 641 of 1999 whereby and whereunder the writ application filed by the appellants herein had been dismissed on the ground of existence of alternative remedy as also lack of territorial jurisdiction on the part of this court. 

2. The respondent herein had filed an application before the Monopolies and Restrictive Trade Practices Commission, Delhi, inter alia, on the ground that the appellant herein has taken recourse to unfair trade practices. 

3. In the said proceeding an application for injunction has been filed which had been granted by an order dated 8th March, 1999. Questioning the said order a writ application was filed and upon dispensing with the requirement of rule 27 of the writ Rules framed by this court, the learned trial Judge passed interim order in favour of the writ petitioner on 11th March, 1999. The respondents having been noticed, raised preliminary questions as regards the maintainability of the writ application. 

4. Both the aforementioned contentions as had been raised by the respondents herein, as indicated hereinbefore, had found favour with the learned trial Judge as a result whereof the writ application was dismissed. 

5. Mr. Soumen Ghosh, the learned advocate appearing on behalf of the appellant, had principally raised three contentions in support of this appeal. The learned counsel submitted that although under section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter 'the Act') a forum of appeal before the Supreme Court of India has been created, the same has its own limitations. In that view of the matter, contends Shri Ghosh, as the appellant herein has raised a question of violation of the principles of natural justice by the Commission, this writ application could not have been thrown out on the ground of existence of alternative remedy. In support of the aforesaid contention strong reliance has been placed on Baburam Prakash Chandra Maheswari v. Anlorin Zilla Parishad, AIR 1969 SC 556 and L. Hirday Narain v. ITO AIR 1971 SC 33. The learned counsel submits that in a case of this nature, normally the Supreme Court does not exercise its jurisdiction and in support of the said contention strong reliance has been placed in the decision reported in Hindustan Lever Ltd. v. Colgate Palmolive (I) Ltd. [1998] 28 CLA 39/AIR 1998 SC 526. It has further been contended that the Commission acted illegality in passing the interim order of injunction as a result whereof, the entire scheme of the appellant shall fail and the application filed by the respondent herein would be allowed in its entirety. The learned counsel has relied upon Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahabidyalya AIR 1987 SC 2186, Union of India v. Oswal Woollen Mills Ltd. AIR 1964 SC 1264, AIR 1997 SC 2838 and Altos India Ltd. v. Suresh Goyal [1995] 4 SCC 51. As regards the finding of lack of territorial jurisdiction of this court, the learned counsel submitted that only because the application had been filed at Delhi and the impugned order has been passed by the Commission at Delhi, the same, by itself, would not disentitle this court from entertaining the writ application as a part of cause of action arose within the jurisdiction of this court. In support of the said contention the reliance has strongly been placed upon AIR 1983 Cal. 257 and AIR 1983 Cal. 307. 

6. Mr. Jayanta Mitra, the learned senior counsel appearing on behalf of the respondent No. 3, on the other hand, submitted that a bare perusal of section 55 would clearly show that an order passed under section 12A of the Act is also appealable in terms whereof, the Commission is empowered to pass an order of injunction. The learned counsel pointed out relying on or on the basis of the decision of the Apex Court in Mahindra & Mahindra Ltd. v. UOI reported in AIR 1979 SC 789 that as section 100 of the Code of Civil Procedure, 1908 ('the Code') has been incorporated by reference in the said Act, the old provisions thereof shall apply despite the fact that the same has undergone an amendment in the year 1976. 

7. There cannot be any doubt whatsoever that power of judicial review of this court is not inhibited by the fact that there exists an alternative remedy. However, the court, in the event of existence of an alternative remedy may refuse to entertain a writ application. Such a restriction is a self-imposed one on the part of the High Courts. It is also true that the court may not refuse to exercise its discretion to entertain a writ application on the ground of availability of alternative remedy, if an order has been passed without jurisdiction or the same has been passed in violation of the principles of natural justice or the vires of the Act is in the question. In this case, the petitioner has filed the writ application, inter alia, on the ground that on the date fixed for final argument, the respondent herein had filed a supplementary affidavit but despite adjournment having been sought for, the same had been refused. 

8. In this connection, our attention has been drawn to the statements made in paragraph 10 of the stay application wherein the order of the Commission has been reproduced which is to the following effect : 

"Learned senior advocate for the respondent stated that he may be given an opportunity to meet the facts highlighted in the further affidavit on behalf of the applicant and given to his junior advocate on 25th February, 1999. His contention is that certain new facts have been highlighted in the affidavit and was given to his junior after he had concluded his arguments. Learned senior advocate for the applicant/complainant states that there were new facts in the affidavit but are in continuation of his averments in his rejoinder affidavit. Be that as it may, the learned advocate has been given full opportunity of meeting the new facts if there are any and making his submissions today. Arguments have been heard and the order is reserved." 

9. The Commission, therefore, has dealt with the question of denial of opportunity to the appellant to meet the new points allegedly raised by the respondent No. 3. In other words, principles of natural justice has not been violated. It is, thus not a case where violation of the principles of natural justice is admitted or is apparent on the face of the records. 

10. Assuming for the sake of argument that violation of the principles of natural justice has taken place, and thus, this court may exercise its jurisdiction under article 226 of the Constitution of India, a question would arise as to whether keeping in view the facts and circumstances of the case it would entertain the writ application. 

11. The concept of principles of natural justice has undergone a radical change. It is not in every case, that the High Courts would entertain a writ application only on the ground that violation of principles of natural justice has been alleged. The Apex Court, in State Bank of Patiala v. S. K. Sharma reported in [1996] 3 SCC 364 has clearly held that a person complaining about the violation of the principles of natural justice must show causation of a prejudice against him by reason of such violation. The Apex Court has held that the principles of natural justice, may be said to have been violated which require an intervention when no hearing, no opportunity or no notice has been given. Reference in this connection may also be made to Managing Director, Electronic Corpn. of India v. B. Karmakar reported in AIR 1994 SC 1076. The question as to the effect of non-grant of enough opportunity to the learned counsel for the appellant by the Commission to meet the allegations made in the supplementary affidavit requires investigation. As to what extent the appellant has suffered prejudice would be a question which would fall for a decision of a higher court. Where such a disputed question arises, in the considered opinion of this court, a writ application will not be entertained only because violation of natural justice has been alleged and more so, in a case of this nature where such a contention can also be raised before the highest court of India. A distinction has to be borne in mind between a forum of appeal which is presided by an administrative body and the Apex Court as an appellate court. 

12. In our opinion, while exercising or refusing to exercise its jurisdiction to entertain writ application on the ground of existence of alternative remedy, the nature of the forum will also have an important role to play. 

13. The further question which would fall for consideration before a higher court would be as to whether completely new facts had been brought in before the Commission, upon which reliance had been placed by the respondents herein and the same had a bearing on the order passed by the Commission which is impugned in the writ application. 

14. In this view of the matter, we are of the opinion that although violation of the principles of natural justice may not stand as a bar but this court in entertaining a writ application, in a case of this nature, may not do so. Furthermore, it has to be borne in mind that the Act is a complete Code in itself and appeal from its order lies to the Apex Court of this country on a question of law. Such a remedy must be held to be a more efficacious, speedy and cheaper one. In the matter of issuance of a writ of certiorari the scope of writ is very limited than a court which can entertain an appeal on a question of law. 

15. In this case, as noticed herein before, the question as to whether there has been a violation of principle of natural justice is a disputed one. 

16. While hearing an appeal, the appeal court can consider all aspects of the matter. With a view to do complete justice the Apex Court can exercise its jurisdiction under section 107 of the Code and grant relief which the Commission could grant. 

17. An appeal, as is well known, is continuation of the original proceeding. 

18. As has rightly been pointed out by Mr. Mitra, in view of the decision of the Apex Court in Mahindra & Mahindra Ltd. (supra) the provision of section 100 of the Code shall apply in the instant case and clause (c) thereof embraces within its fold a question raised by the appellant herein in the writ application. 

19. In Hindustan Lever case (supra) the Apex Court did not lay down any law that no appeal lies against an interlocutory order but in the facts and circumstances of this case only because a final order had not been passed and merely an interim order had been passed, the Apex Court refused to exercise its discretion. It, in fact, by entering into the merit of the dispute must be held to have entertained the appeal which, thus, the Supreme Court itself considered maintainable in terms of section 55. In that decision also in paragraph 17, the Supreme Court has referred to section 100 of the CPC, as it stood before the 1976 amendment. 

20. In the aforementioned back drop the decisions relied upon by Mr. Ghosh, may be considered. 

21. In Oswal Woollen Mills Ltd. (supra) the Apex Court was considering a case under Import Control Order. It was held that the only appropriate order to make in such cases is to issue notice to the respondents and make it returnable within a short period. The Supreme Court deprecated grant of interim relief straightaway and left it to the respondents to move the court to vacate the interim order which may jeopardise the public interest. Such is not the position here. 

22. In Dr. Smt. Kuntesh Gupta (supra) as it was held that the vice-chancellor had no power of review, the said order was a nullity and in that view of the order, the writ application was held to be maintainable. 

23. In Baburam Prakash Chandra Maheswari (supra) the Apex Court held that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. The said decision, therefore, does not assist the learned counsel for the appellant. 

24. In L. Hirday Narain (supra) the writ application was entertained and the Apex Court merely held that when the writ application had remained pending for a number of years, the same should not be thrown out on the existence of alternative remedy. Such is not the position here. In this
case no rule was issued and ad interim order was granted upon waiving the formalities, as is required in terms of rule 27 of the Rules framed by this court relating to matters under article 226 of the Constitution. However, at the first opportunity, the respondents had taken preliminary objections as regards the maintainability of the writ application which found favour with the learned trial Judge. 

25. In Altos India Ltd. (supra), the Apex Court merely held that it was incumbent upon the Commission to first decide the question of maintainability on which objection was raised placing reliance on a Full Bench decision of the Commission itself. The aforementioned decision, in the backdrop of the case, cannot be said to have any application whatsoever. It had further noticed that the question as regard the new amendment was pending consideration before a larger Bench. However, it is well-settled that unless and until a decision of the Supreme Court is over-ruled, the same would be a law within the meaning of article 141 of the Constitution and the practice of the court is to follow the Supreme Court decisions which hold the field. 

26. In Nirma Industries Ltd. v. DG (I&R) reported in [1997] 25 CLA 182/AIR 1997 SC 2382 the Apex Court appears to have been entered into the merit of a matter relating to unfair trade practice. Keeping in view the fact that this court does not intend to enter into the merit of the matter on the ground of existence of alternative remedy, we are of the opinion that the said decision cannot be brought in aid for the purpose of this case. 

27. In view of our findings aforementioned, we are of the view that it is not necessary for this court to go into the question as to whether this court has the territorial jurisdiction to entertain the writ application or not. The learned trial Judge, in arriving at the said finding, does not appear to have been assigned any reason whatsoever. 

28. Another aspect of the matter cannot be lost sight of. The learned trial Judge has exercised its discretion in not entertaining the writ application by the appellant. Can in the facts and circumstances of this case be said that such discretion has been exercised wrongly or the same is perverse in nature. The answer to the aforementioned question must be rendered in negative. It is now well settled principle of law that the appeal court would not interfere with an order passed by the learned trial Judge using his discretion in the matter until and unless it is found that such discretion has been exercised improperly and/or in contravention of any law. Only because an appeal court may take a different view the same by itself, would not be a ground to interfere with the order of the first court. 

29. Having found that the learned trial Judge has exercised his discretion which cannot be said to be an unsound one, or perverse, or had been exercised contrary to any principle of law, we are of the opinion that exercise of such discretion need not be interfere with. 

30. We are, therefore, of the opinion that no interference is called for with the order passed by the learned trial Judge. For the reasons aforementioned, this appeal is treated as on the day's list and is dismissed. 

However, in the facts and circumstances of this case, there will be no order as to costs. 

Appeal dismissed.