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2001 DIGILAW 12 (CAL)

Jindal Vijaynagar Steel Plant v. Indofer Society

2001-01-11

Ashok Kumar Mathur, Girish Chandra Gupta

body2001
JUDGMENT Girish Chandra Gupta, J. : This appeal is directed against a judgement and order dated 12th December, 2000 by which the learned Single Judge dismissed an application taken out by the respondent No.8 to the writ petition contending that the learned Judge taking up writ matters had no longer any jurisdiction to decide the matter. In order to appreciate the point in issue analysis of the facts and circumstances of the case in necessary. 2. Essar Steel Industries Ltd. and Zindal Vijaynagar Steel Plant both principally manufacturers of H.R. Coils, being the respondent Nos. 6 and 8 respectively to the writ petition, are the members of the writ petitioner No.1, Indofer Society. The Central Government by a notification dated 27.11.1998 levied anti-dumping duty in respect of Hot Rolled Coils (H.R. Coils), Hot Rolled strips/sheets/plates etc. in respect of the aforesaid goods originating in or exported from Russia, Kazakhastan and Ukrain. The writ petitioners contend that the said notification was issued by the Central Government pursuant to an application made amongst others by its member Essar Steel in order to afford protection to the domestic industry engaged in manufacturing the aforesaid goods. It is contended by the writ petitioners that a second antidumping petition was made amongst others by the Essar Steel Industries Ltd. on 4.1.1999 in respect of self-same goods originating in or exported from South Korea, South Mrica, Japan, Australia and China. The said petition was disposed of by the Central Government by a letter dated 8.2.1999 stating that "there is a floor price in operation for imports of hot rolled coils, strips, sheets and plates imported into India at U.S. Dollars 302 per metric tonne with effect from December, 1988. At the current level of floor price, the domestic industry would not suffer any injury. In case the circumstances change in future, you are requested to submit a fresh petition which we will consider at that time on merits." 3. It appears from a notification dated 11.12.1998 that the floor price in respect of prime steel items which include H.R. Coils was fixed at 302 U.S. Dollars per metric tonne and by another notification dated 10.12.1998 the floor price in respect of defective H.R. Coils was fixed at 232 U.S. Dollars per metric tonne. 4. It appears from a notification dated 11.12.1998 that the floor price in respect of prime steel items which include H.R. Coils was fixed at 302 U.S. Dollars per metric tonne and by another notification dated 10.12.1998 the floor price in respect of defective H.R. Coils was fixed at 232 U.S. Dollars per metric tonne. 4. The writ petition was filed on 13.7.1999 contending inter alia that the petition dated 4.1.1999 should have been disposed of in accordance with section 9A of the Customs Tariff Act, 1975 and the rules made thereunder and the authority having not done so the said anti-dumping petition made amongst others by Essar Steel Industries Ltd. continues to be pending and the issues raised therein remain undecided. It is, however, admitted that the floor price afforded adequate protection to the domestic industry but it was apprehended that in the event the aforesaid notifications are modified and/or withdrawn the petitioner would be exposed to the high risk of dumping of the aforesaid items. 5. On the aforesaid basis the petitioners prayed for a writ in the nature of mandamus directing the Central Government to dispose of anti-dumping petition dated 4.1.1999 on merits and in accordance with law and for a further writ in the nature of mandamus directing the petitioner not to alter or reduce the floor price until disposal of the said petition and further and other reliefs including an injunction restraining the Central Government from taking any step or further step from reducing or altering the floor price fixed under the aforesaid notifications dated 10th and 11th December, 1998. 6. During the pendency of the said writ petition by a notification dated 1.11.1999 the floor price in respect of prime H.R. Coils was reduced from 302 U.S. Dollars per metric tonne to 254 U.S. Dollars with a further direction that the aforesaid reduced price shall remain operative for a period of 2 months from the date of notification and thereafter the same shall be treated as withdrawn. In respect of the defective H.R. Coils the floor price was reduced from 232 U.S. Dollars per metric tonne to 190.5 U.S. Dollars per metric tonne. 7. On or about 29.11.1999 the writ petitioners made an interlocutory application praying inter alia for stay of operation of the aforesaid notification dated 1.11.1999. The application came up for hearing before the learned Single Judge on 4.2.2000. 7. On or about 29.11.1999 the writ petitioners made an interlocutory application praying inter alia for stay of operation of the aforesaid notification dated 1.11.1999. The application came up for hearing before the learned Single Judge on 4.2.2000. The learned Single Judge observed and directed "as at present the floor price has completely disappeared with the expiry of the period of validity of the last notification which had been published in November, 1999. Since the litigation takes on a public interest aspect, since steel producing industries would like very much to have the floor prices maintained, and the governmental authorities as at present are maintaining none, representations are invited from industries or group of industries who might be interested from any part of India so as to support or oppose the maintenance of such floor price of H.R. Coils as regards imported steel and of imposition of anti-dumping duty." The aforesaid order dated 4.2.2000 was directed to be advertised in Calcutta, Delhi, Mumbai, Chennai, Bangalore and Pune and the matter was adjourned till 16.2.2000. 8. The order dated 4.2.2000 was advertised. The matter appeared before the learned Single Judge on 16.2.2000, the learned Single Judge further observed and directed as follows:- "There is absolutely no representation from any of the consumer industries to make any submission that unless the floor price is removed they cannot function. It appears to me therefore that the reduction of floor price helps only the foreign countries and none others..... The notification dated 1.11.1999 by which the floor price of H.R. Coils was reduced to 254 U.S. Dollars per metric tonne is to that extent stayed with effect from the date of its publication, in other words, the earlier notification maintaining the floor price at 302 U.S. Dollars per metric tonne for H.R. Coils shall remain operative until further orders of this Court." 9. The order dated 4.2.2000 shows that representations were called for from industries or group of industries. The order dated 16.2.2000 further illustrates the intention of the learned Single Judge which is that before passing an interim order he wanted to ascertain whether removal of the floor price is required for the survival of the consumer industries. No such representation was however received. 10. It appears by an order dated 10.5.2000 another learned Single Judge granted two several applications made by the respondent Nos. No such representation was however received. 10. It appears by an order dated 10.5.2000 another learned Single Judge granted two several applications made by the respondent Nos. 6 and 7 seeking to be added as parties to the said writ petition. It is, however; not clear from the order dated 10.5.2000 as to whether the said respondents who were allowed to become parties to the said writ petition conform to the description of the parties invited viz. industries or group of industries or consumer industries. They had also applied for vacating the interim order dated 16.2.2000. That part of the prayer was however not then and there granted and directions for affidavit were issued. 11. It appears that on or about 2.11.2000 the appellant who is the respondent No.8 in the writ petition applied for releasing the matter and referring it to the Division Bench assigned with the task of hearing public interest litigation on the following grounds:- (a) by reason of the orders passed from time to time commencing from 4.2.2000 the litigation has been converted into a public interest litigation; (b) the added respondents have specifically stated in their pleadings that the present litigation has been converted into a public interest litigation; and (c) public interest litigation can only be heard by a Division Bench. 12. The learned Single Judge dismissed the said application. The respondent No. 8/applicant has thus come up in appeal. The learned Advocate General appearing in support of the appeal has reiterated the aforesaid grounds before us and has further submitted that the scope of the lis has now been widened and has acquired the character of a public interest litigation. In support of his contention he has relied on the case of S.N. Patil vs. Dr. M.M. Gosavi & Ors., reported in (1987) 1 SCC 227 and has drawn our attention to paragraph 36 of the said judgement which reads as follows:- "The allegations made in the petition disclose a lamentable state of affairs in one of the premier universities of India. The petitioner might have moved in his private interest but enquiry into the conduct of the examiners of the Bombay University in one of the highest medical degrees was a matter of public interest. The petitioner might have moved in his private interest but enquiry into the conduct of the examiners of the Bombay University in one of the highest medical degrees was a matter of public interest. Such state of affairs having been brought to the notice of the Court, it was the duty of the Court to the public that the truth and the validity of the allegations made be inquired into. It was in furtherance of public interest that an enquiry into the state of affairs of public institution becomes necessary and private litigation assumes the character of public interest litigation and such an enquiry cannot be avoided if it is necessary and essential for the administration of justice." 13. He has drawn our attention to the provisions of Order 1 Rule 8A and contended that the order directing advertisement passed by the learned Single Judge on 4.2.2000 was evidently in exercise of the power reserved under the aforesaid rule which reads as follows:- "8A. While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that person or body or persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify." 14. He has drawn our attention to sections 91 and 92 of Code of Civil Procedure and has contended that the said provisions authorise the Advocate General to initiate public interest litigation in the limited field. In this context, he has relied on the case of S.P. Gupta vs. Union of India, reported in (1981) Supp. SCC 87, paragraph 20 at page 214. 15. He has finally submitted that the provisions of section 9A of the Customs Tariff Act, 1975 are meant for the protection of the domestic industry and thus are in the interest of public. 16. SCC 87, paragraph 20 at page 214. 15. He has finally submitted that the provisions of section 9A of the Customs Tariff Act, 1975 are meant for the protection of the domestic industry and thus are in the interest of public. 16. The sum and substance of his submission is that the petition dated 4.2.2000 for levying anti-dumping duty was made in the public interest; the order dated 4.2.2000 inviting representations from industries or group of industries or consumer industries and the subsequent addition of parties leave no manner of doubt that the lis which was initially of an adversarial character stood converted into a public interest litigation and therefore the learned Single Judge stood divested of his jurisdiction to entertain and determine the same. 17. Mr. Chatterjee learned counsel appearing on behalf of the writ petitioners has however submitted that his petition is of an adversarial character and is not a public interest litigation. 18. Mr. Kapoor learned counsel appearing on behalf of the added parties has disputed that the lis has been converted into a public interest litigation. He further submitted that the lis did not conform to the standards of a public interest litigation. 19. Mr. Roy Chowdhury appearing for the Central Government has also made submission in the same tune and further contended that it is not a case where for the benefit of an undeterminate class of persons the petition is moved. As a matter of fact, he added, all the interested parties are before the Court. According to him this is not a public interest litigation. 20. Dr. Pal appearing on behalf of the Steel Authority has supported the contention of the learned Advocate General. So did Mr. Mullick appearing on behalf of the workers whose application for addition of parties is pending before the learned Single Judge and is yet to be decided. 21. We have given our anxious thoughts to the respective submissions made by the learned Advocate appearing for the parties. According to us the question for determination is "did the learned Single Judge in the facts and circumstances of the case cease to have jurisdiction to entertain and decide the pending writ petition?" In our view, the answer has to be in the negative for the following reasons:- (a) We have perused the writ petition which has been briefly summarised above. We are unable to persuade ourselves to hold that the writ petition was presented in the nature of a public interest litigation. (b) The question of the nature of the petition and the question of jurisdiction is determinable at the commencement of the lis. If any authority is needed to support our view, we may cite the following passage from the case of Ujjambai vs. State of U.P., reported in AIR 1962 SC 1621 :- "It is necessary first to clarify the concept of jurisdiction. Jurisdiction means authority to decide. Whenever a judicial or quasi judicial Tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact. The question, whether a Tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire or upon the correctness of its findings on these facts but upon their nature, and it is determinable 'at the commencement not at the conclusion, of the enquiry' Rex vs. Boltan, (1841) 1 QB 66 at p. 74." (c) It is well-established principle that jurisdiction once vested cannot be divested unless the legislature has expressly or by necessary intendment directed otherwise. 22. In Official Receiver vs. Jugal Kishore Lachhi Ram Jaina, reported in AIR 1963 Allahabad 459, a Full Bench relying on Venu Gopal Reddiar vs. Krishna Swami Reddiar held as follows: "It is well-established also that if a suit was validly filed and the Court had jurisdiction to entertain it on the date of the institution subsequent events would not lead to the defeat of the suit unless expressly provided to that effect by a legislative enactment. (See Venugopal Reddiar vs. Krishnaswami Reddiar, AIR 1943 FC 24)." 23. In that case a suit had been filed in a British India Court at a time when Burma had not separated from India. (See Venugopal Reddiar vs. Krishnaswami Reddiar, AIR 1943 FC 24)." 23. In that case a suit had been filed in a British India Court at a time when Burma had not separated from India. During the pendency of the suit Burma became an independent country and the question arose whether the Indian Court would have jurisdiction to adjudicate in respect of the property situated in Burma in view of the well-known principle embodied in municipal law of all civilised states that a Court would have no jurisdiction to entertain an action for the determination of the title or right to possession of property situate in a foreign land. The learned Judges of the Federal Court observed as follows:- "The true position as we have already stated is not whether there is an express provision permitting the continuance of pending proceedings, but whether there is any clear indication against the continuance of pending proceedings to their normal termination." (d) The question of jurisdiction as to subject matter has to be decided on the basis of averments contained in the plaint and/or petition, as the case may be, and such decision is not affected by what the defendant or the respondent has contended or may contend. Reference in this regard can be made to a Full Bench judgment in the case of Baru & Ors. vs. Niadar & Ors., reported in AIR 1942 Lahore 217, wherein it was held as follows:- 'It is well established that the nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up'." 24. Reference may also be made to the case of Topan Das vs. Gorakhram Gokalchand, reported in AIR 1964 SC 1348 , where Their Lordships quoted with approval the law laid down in a Full Bench judgment of the Allahabad High Court holding as follows:- "In answering this question it is perhaps necessary to refer to the general principle which admittedly governs the question of jurisdiction at the inception of suits. This general principle has been well explained in the Full Bench decision of the Allahabad High Court, Ananti vs. Channu, ILR 52 All. 501 : AIR 1930 All. 193 (FB) and has not been disputed before us. This general principle has been well explained in the Full Bench decision of the Allahabad High Court, Ananti vs. Channu, ILR 52 All. 501 : AIR 1930 All. 193 (FB) and has not been disputed before us. It was observed there: 'The plaintiff chooses his forum and files his suit. If he established the correctness of his facts he will get his relief from the forum chosen. If he frames his suit in a manner not warranted by the facts and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suits dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as frames, would not justify the other kind of court to grant him the relief. If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits on pecuniary limits, the plaint will be ordered to be returned for presentation to the proper court. If, on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of court to which the court belongs, the plaintiff's suit will have to be dismissed in its entirety.' " 25. Reference may also be made to the case of Abdul Bin Ali vs. Gallappa & Ors., reported in AIR 1985 SC 577 , where Their Lordships held as follows:- "There is no denying the fact that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement." (e) We are not convinced, that the lis has acquired the character of a public interest litigation, for the following reasons: (i) By mere publication of the order dated 4.2.2000 and the subsequent order allowing application for addition of parties the lis has not acquired a representative character so as to be binding on all the parties having similar interest in the matter. (ii) According to us all that the learned Single Judge wanted to ascertain by the advertisement is that he wanted to know whether by granting stay of the notification dated 1.11.1999 any of the industries or consumer industries would be prejudicially affected. (iii) "Public interest litigation must be pro hono publico, for the benefit of the public, and not for the benefit of a particular section of the people for their personal rights." We have no manner of doubt that the petitioners have been seeking to aespouse their own cause. (f) Even assuming that the lis is of some public importance that, in our opinion, will not displace the jurisdiction, if any, vested in the learned Single Judge. (g) The case reported in (1987) 1 SCC 227 does not help the learned Advocate General. That judgment at the highest is an authority for the proposition that a private litigation may in appropriate cases stand converted into a public interest litigation. But in that case no question arose for determination as to whether a learned Judge who is in seisin of the matter will cease to have jurisdiction, the lis acquires character of a public interest litigation or not. 26. For the reasons aforesaid, the appeal fails and is dismissed. There shall, however, be no order as to costs. Ashok Kumar Mathur, J. : I agree. Later: 27. Prayer of stay of operation of this order is made on behalf of the appellant. The same is considered and refused. 28. If urgent xerox certified copy of this order is applied for the same may be made available to the learned Advocates for the respective parties upon compliance of all the formalities expeditiously. Ashok Kumar Mathur, CJ. Appeal dismissed. Girish Chandra Gupta, J. Prayer of stay refused.