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1979 DIGILAW 57 (CAL)

Mukund Shah v. Golden Polyester Industries (Pvt. ) Ltd.

1979-02-15

B.C.RAY, CHITTATOSH MUKHERJEE

body1979
JUDGMENT C. Mookerjee, J. The appellant, Sri Mukund Shah has filed this appeal under Clause 15 of the Letters Patent against the order dated 7th February, 1979 passed by our learned brother R.N. Pyne J. rejecting his application for adding him as a respondent in Civil Rule No. 57(W) of 1979 obtained by M/s. Golden Polyester Industries Pvt. Ltd., the respondent No.1. herein. The appellant's application for interim orders by, consent of parties has been heard along with this appeal. We also direct, with consent of parties, that the filing of the paper-books be dispensed with and service of notices upon the respondents be waived. The respondent Nos. 1 to 3 continue to be represented by the learned advocates who had appeared for them in the trial court. 2. The learned Single Judge in his order dated 7th February, 1979 did not record his reasons for rejecting the application of the present appellant for adding him as a respondent in the aforesaid Rule. There is some force in the submission of Mr. H. Jagtiani learned advocate for the appellant, that the learned Single Judge ought to have recorded his reasons, however, brief they may be, for not entertaining the appellant's said prayer for addition of parties. We propose to state the reasons why, in our, view, the appellant is not entitled to be joined as a respondent in the said Civil Rule-. 3. The appellant in his application for addition of party filed in Civil Rule No. 57(W) of 1979 claimed that he is registered as a small scale industrial unit in Maharashtra. The appellant was engaged in the manufacture of Metallised Polyester Film and Metallic Yarn from Metallised Polyester Film. The product of the applicant is used mainly in the textile industries, including the hand-loom textile industries. He has further alleged in his said application that the respondent No.1 herein M/s. Golden Industries Pvt. Ltd. had grossly under-valued the price of Metallised Polyester Film in the bill of entries made out and submitted on behalf of the importer. The product of the applicant is used mainly in the textile industries, including the hand-loom textile industries. He has further alleged in his said application that the respondent No.1 herein M/s. Golden Industries Pvt. Ltd. had grossly under-valued the price of Metallised Polyester Film in the bill of entries made out and submitted on behalf of the importer. Therefore, M/s. Golden Polyester Industries Pvt. Ltd. would have a tremendous advantage over others including the appellant who paid the same rate of duty on invoiced values which were more than three times than those declared by M/s. Golden Polyester Industries Pvt. Ltd. Further, according to the appellant, due to the "illegal strategy" adopted by M/s. Golden Polyester Industries Pvt. Ltd., the appellant and other importers would be out of market by goods whose invoiced value had been wrongly shown. The appellant has further claimed that it would be impossible for honest importers to carry on their normal trade when the goods at the above rate invade the market The indigenous manufacturers of polyester film and metaliser would be also harmed. Under these circumstances, the appellant submitted that his right and interest in respect of his trade would be vitally affected by the aforesaid Civil Rule and as such he may be added as a party respondent therein. 4. Mr. Jagtiani has submitted that his client in two-fold capacity may urge that he should be added as a respondent in the aforesaid Civil Rule. In the first place his client as a public spirited citizen with special knowledge about the real value of the goods imported by the respondent No.1 herein should be given opportunity of making his submission. Secondly, the appellant is likely to be adversely affected by the decision in the Civil Rule and if the goods are released, his client may face unfair competition. Mr. Jagtiani submitted before us that it is not necessary for his client to establish that he had any property interest in the goods whose release had been withheld by the Customs Authorities pending a adjudication. 5. The Supreme Court in Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886 . Mr. Jagtiani submitted before us that it is not necessary for his client to establish that he had any property interest in the goods whose release had been withheld by the Customs Authorities pending a adjudication. 5. The Supreme Court in Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886 . with reference to the question of addition of parties had inter-alia observed that in a suit relating to the property, in order that a person may be added, he should have a direct interest as distinguished from a commercial interest in the subject-matter of litigation. The Supreme Court had further observed that where the subject-matter of a litigation is a declaration of status or a legal character the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudic ate upon the controversy. The appellant cannot claim that he ought to have been joined as a petitioner or respondent in the Civil Rule obtained by the respondent No.1 herein. He has not also established that without his presence the questions involved in the said Civil Rule cannot be completely decided (in this connection see Mulla's Code of Civil Procedure, Vol. 1, page 626) The appellant has not proprietary or even any other direct interest. He claims a mere commercial interest. 6. In their petition under Article 226 of the Constitution M/s. Golden Polyester Industries Pvt. Ltd. has prayed inter alia for a writ in the nature of Mandamus commanding the Collector of Customs. Calcutta, the Assistant Collector of Customs for Appraisement, Group I and the Union of India to release the goods imported by the said petitioner and for further commanding the said respondents to grant certificate for exemption of wharfage and or demurrage in respect of the said imported goods. Therefore, the principal point in the said Civil Rule is whether or not the respondents had acted illegally and in accordance with the provisions of the Customs Act by not releasing the goods. Therefore, the principal point in the said Civil Rule is whether or not the respondents had acted illegally and in accordance with the provisions of the Customs Act by not releasing the goods. We find that the Assistant Collector of Customs for Appraisement, the respondent No.2 in the Civil Rule, had filed an affidavit-in-opposition in the trial court inter alia stating that the Customs Authorities had received complaints that several consignments of Metallised Polyester Film imported by the petitioner of the Civil Rule and some others had been grossly under-valued leading to huge loss of government revenue. In view of these complaints, before allowing clearance of the aforesaid consignments claimed by the petitioner in the Civil Rule, it became necessary for the Customs Authorities to ascertain the correctness or otherwise of the value declared by the petitioner in terms of S.14 of the Customs Act, 1962. The said deponent to the affidavit-ill-opposition has further claimed that prima facie the consignments were liable to confiscation in as much as their ascertained value exceeded the values indicated in the covering import licences. In these circumstances, show-cause notice in respect to consignments were issued on January 12, 1979 as to why the subject goods should not be confiscated and penalty imposed for mis-declaration of value and unauthorised importation. 7. In our view, the appellant has not prima facie established that he was directly and legally interested in the said questions relating to the withholding of the release of the goods claimed by the petitioner on the Civil Rule or in the matter of adjudication proceeding referred to herein-before. In order to be impleaded as a respondent in the Civil Rule, it is not sufficient to establish that in case the petitioner of the Civil Rule obtains release of his goods, the appellant may suffer unfair competition or that he may suffer business losses. The appellant has not even suggested that the Customs Authorities are not diligently defending the aforesaid writ petition. In case the Civil Rule obtained by the respondent No.1 herein fails. it would be for the Customs Authorities to consider whether recording of evidence of the present appellant is necessary for ascertaining the alleged real value of the goods in respect of which the respondent No.1 had submitted bill or entries and applied for their release. In case the Civil Rule obtained by the respondent No.1 herein fails. it would be for the Customs Authorities to consider whether recording of evidence of the present appellant is necessary for ascertaining the alleged real value of the goods in respect of which the respondent No.1 had submitted bill or entries and applied for their release. But merely because the appellant might be a competent witness about the value of the goods of the petitioner the appellant is not entitied to be impleaded as a party in the above writ proceeding. We are unable to accept the submission of Mr. Jagtiani that the appellant could have maintained an independent writ petition in respect of withholding of release order by the Customs Authorities. Prima facie he has no cause of action against the Customs Authorities. There appears to be some Contusion about the real question in controversy in the said Civil Rule. The petitioner in the Civil Rule has challenged the authority of the respondents of the Civil Rule to withhold the release orders of the imported goods claimed by the petitioner. We have already observed that the present appellant has not alleged that he has any grievance against the Customs Authorities. In fact lie is purporting to support the allegations of the Customs Authorities that the goods imported by the petitioner of the Civil Rule had been under valued and their real value was much higher. In the trial court the Customs Authorities had opposed the prayer of the petitioner for modification of interim orders. Mr. Mookerjee learned advocate for the respondent No.1. has placed before us the observations of the Supreme Court in The Nagar Rice and Flour Mills & ors. v. N. Teekappa Gowda & Bros. & ors. AIR 1971 SC 246 (at 250) paragraph 10. The Supreme Court with reference to S.8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 has observed:- "Section 8(3)(c) is merely regulatory: if it is not complied with, the appellants may probably be exposed to a penalty, buta competitor in the business cannot seek to prevent the appellants from exercising their right to carryon business, because of the default nor can the rice-mill of the appellants be regarded as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interest of the general public under Article 19(6), but a person cannot claim independently of such restrictions that another person shall not carryon business or trade so as to affect his trade or business adversely." The same observations may be made with regard to the locus standi of the appellant to be impleaded as a respondent in the Civil Rule obtained by the respondent No. 1. 8. The decisions cited by the learned advocate for the appellant do not at all assist the appellants case. In Regina v. Paddington Valuation Officer, 1966(1) QB 380, a Property Corporation who were owners of a block of flats challenged the entire Valuation List (or the Borough of Paddington on the ground that the same had been prepared contrary to the provisions of Rating and Valuation (Misc. Provisions) Act. The Court of Appeal held that writ of Certiorari and Mandamus were available and a ratepayer and other persons who find their names included in a valuation list which is invalid, are entitled to apply to have it quashed. .. He is not to be put off by the plea that he has suffered no damage, any more than the voters were in Ashby v. White, (1704) 2 Lord Raymond 938 H.L. The Court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests are affected by what has been done." Mr. Mukherjee has correctly pointed that in the said case the Corporation as an owner of a holding was directly affected by the preparation of the Valuation List in question. The Valuation Officer had failed to do his statutory duty in assessment of gross value. The Court of Appeal held that when the whole list in challenged, prerogative orders were more convenient and beneficial than the statutory procedure. It is settled law that a ratepayer or any other person affected can impugn a void Valuation List by filing a writ petition. 9. The Court of Appeal held that when the whole list in challenged, prerogative orders were more convenient and beneficial than the statutory procedure. It is settled law that a ratepayer or any other person affected can impugn a void Valuation List by filing a writ petition. 9. The decision in Attorney General v. Independent Broadcasting Authority 1973(1) Q.B. 629, dealt with the question whether an action by a private citizen would lie when the Attorney General had refused to apply for injunction by way of a relator action. In our view, same has no relevance for considering whether or not a private person should be allowed to intervene in a writ proceeding challenging adjudication by the Customs Authorities in respect of goods imported by another person and in which the intervener claims no proprietary interest. 10. The decision in Regina v. Greater London Council. 1976(1) WR 550, again is not germane. In the Said case the applicant residing within the area of the Greater London Council applied for an order of Prohibition to issue against the Council to prevent them inter alia from exercising their censorship powers over the' public exhibition of cinematograph films in accordance with tests of obscenity which were bad in law, secondly, from acting ultra vires in delegating their censorship powers to the British Board of Film Censor. The Court of Appeal allowed the appeal, inter alia, holding that the Council were acting unlawfully in exercising their licencing powers. It was further held that the applicants as citizens, ratepayers and parents within the Council's jurisdiction had sufficient locus standi to apply for a prerogative order to prohibit the public authority from acting unlawfully. The Court of Appeal further held that the Council was not acting in excess of their powers by delegating to the British Board of Film Censor the task of censoring films. We may refer to pages 558-559 of the judgment of Lord Denning M.R. where the learned Judge discussed the principles relating to the locus standi to being proceeding against a public authority who is guilty of misuse of power. The person who brought the proceeding was a citizen. His wife was a ratepayer. He had children who may be harmed by the exhibition of pornographic films. Therefore, it was held that he had sufficient interest to bring the proceeding. The person who brought the proceeding was a citizen. His wife was a ratepayer. He had children who may be harmed by the exhibition of pornographic films. Therefore, it was held that he had sufficient interest to bring the proceeding. In this connection Lord Denning M.R. indicated the underlying principles as enunciated in Me. Whirter's case 1973 QB 629,649 :- "I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injuries thousands of Her Majesty's subjects, then anyone of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate". 11. Mr. Jagatiani also relied upon the observations contained in paragraph 8 of the Supreme Court decision in Gadde Venketaswar Rao v. Government of Andhra Pradesh & ors. AIR 1966 SC 828 . Subha Rao, J. (as he then was) delivering the judgment of the court had laid down that a petitioner who seek to file an application under Article 226 of the Constitution should "ordinarily" be one who has a personal or individual right in subject-matter of the petition. A personal right need not be in respect of a proprietary interest it can also relate to an interest of a trustee. That apart in exceptional cases, as the expression "ordinarily" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject matter thereof. In this connection, reference was made to the earlier Supreme Court decision in Calcutta Gas Company Pvt. Ltd v. State of West Bengal AIR 1962 SC 1044 . the appellant in Gadde Venkateswar Rao v. Government of Andhra Pradesh & ors. (supra) as the representative of a village had purported to file the application under Article 226 of the Constitution inter alia challenging the order of the Andhra Pradesh High Court reviewing its earlier order by which a resolution of a Panchayat Samity regarding establishment of a health centre had been set aside. (supra) as the representative of a village had purported to file the application under Article 226 of the Constitution inter alia challenging the order of the Andhra Pradesh High Court reviewing its earlier order by which a resolution of a Panchayat Samity regarding establishment of a health centre had been set aside. The Council for the State of Andhra Pradesh had raised a preliminary objection about the locus standi of the appellant to file the writ petition and in the context of these facts the aforesaid observations in paragraph 8 of the judgment in Gadde Venkateswar's case (supra) were made. 12. Mr. Mukherjee appearing, on behalf of the respondent No.1 has rightly submitted that the question of locus standi to file a. writ petition is always considered in the context of the fac1s and circumstances of each particular case. When the act of the State or any other statutory or public authority violates or infringes personal or private rights of an individual, the said person alone would be entitled to file a writ petition. In this connection we may note that legal position is somewhat different in case of filing of writs of Habeas Corpus and Quo Warranto. But, in case the act or omission affects a number of persons or the same amounts to an infringement of a statutory right jointly claimed or breach of a statutory/public duty towards them, all the persons who are affected may have cause of action. Therefore, the aggrieved persons individually jointly or in representative capacity may file a writ petition. Mr. Jagatiani learned advocate for the appellant had relied upon the reported decision in which the impugned act or omission transgressed, rights of not one individual but a large number of persons and in each case a person who was thereby offended or injured had filed the proceeding in question. But, in the instant case we are unable to hold that any question arises of breach of any public duty on the part of the Customs Authorities affecting not only the respondent No.1 but also other importers of Metallised Polyester Film etc. 13. In the above view, we conclude that the appellant has no locus standi to apply for impleading him as a respondent in the aforesaid Civil Rule. 13. In the above view, we conclude that the appellant has no locus standi to apply for impleading him as a respondent in the aforesaid Civil Rule. Therefore we are also unable to entertain his prayer for staying the operation of the order of R.N. Pyne, J. dated 8th February, 1979 modifying interim orders passed in Civil Rule No. 57(W) of 1979. Accordingly, we need not examine the merits of the said order dated 8th February 1979. It is needless to say that any of the parties in Civil Rule No. 57(W) of 1979 is entitled to take appropriate steps/proceedings in respect of the said order dated 8th February. 1979. Mr. Sen, learned advocate for the Customs Authorities submitted before us that his clients had oppossed the said prayer of the petitioner of the Civil Rule for modification of the interim orders. Mr. Sen at the same time submitted that his clients have not yet preferred any appeal against the said order dated 8th February 1979 passed by R. N. Pyne J. Mr. Sen's clients did not make any submission regarding the prayer of the appellant for adding him as a respondent in the Civil Rule. For the foregoing reasons, we dismiss this appeal without any order as to costs. We also dispose of the application for interim orders made by the appellant. B. C. Ray, J. : I agree. After the judgment is delivered, Me. Bose, learned advocate for the appellant, prays for a certificate under Article 133(1) of the Constitution. No such certificate can be granted because, in our opinion the case does not involve any substantial question of law of general importance. We are also unable to opine that the question involved in the appeal needs to be decided by the Supreme Court. Accordingly, we reject the prayer under Article 133(1) of the Constitution. Prayer for stay of the operation of the judgment is also rejected. Appeal dismissed.