TaxTMI 
TaxTMI 
2001 (1) TMI 594
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....ed to be treated as part of the main writ petition being W.P. No. 12492(W) of 1999. 2. In this application neither of the parties has filed any affidavit-in-opposition. The petitioners and added parties and/or intervenors apart from advancing oral submission have filed written notes of arguments but other parties were contended with oral submission. 3. Dr. Singhvi, learned Advocate for the petitioners submitted various aspects both on the question of jurisdiction and my authority as to whether I can entertain the aforesaid application at this stage without deciding the question of jurisdiction in the writ petition itself. 4. He contends that question of territorial jurisdiction for entertaining and trying the present amendment petition is absolutely of no relevance. In this situation the correct procedure would be to first grant amendment and, thereafter, to decide the question of territorial jurisdiction. In support of his submission he has relied on the following decisions :- (i) AIR 1958 All. 96, (ii) AIR 1983 Cal. 384, (iii) AIR 1953 Hyderabad 212, (iv) AIR 1959 Rajasthan 146, (v) AIR 1949 Madras 208, (vi) AIR 1982 Orissa....
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....ubmission he has relied on the following decisions : (i) AIR 1959 AP 9, (ii) AIR 1963 M.P. 22, (iii) AIR 1965 AP 98, (iv) AIR 1970 Cal. 882, (v) AIR 1982 Cal. 358, (vi) AIR 1987 S.C. 1087 and (vii) AIR 1987 Orissa 255. 9. Dr. Singhvi contends that delay in taking out the application is of no relevance since the amendment has been allowed even after the court has closed arguments in a matter. He seeks to rely for this proposition on two decisions reported in AIR 1993 MP 248 and AIR 1969 S.C. 1267. On the question of territorial jurisdiction of this Court it is submission of the writ petitioner advanced by Dr. Singhvi alternatively that in order to decide this question the court is to look into the averments of the writ petition only nothing more nothing less. 10. He contends perusal of the Cause Title of the original writ petition that the subject matter of the writ petition is stated and the same being the notification dated 11th December, 1998 issued by the Director General of Foreign Trade, Ministry of Commerce, Government of India, New Delhi under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992. 11. H....
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....ions in this context : (i) 1953 SCR 1154, (ii) 1954 SCR 738, (iii) AIR 1961 SC 532, (iv) AIR 1963 SC 1124. 13. However, the aforesaid decisions are of no use in view of the insertion of amendment of Article 226 by 15th amendment bringing in theory of the part of cause of action. After having noted the aforesaid amendment it has been held by the various courts that effect of the order which is the subject matter of the writ petition is felt would confer territorial jurisdiction on the High Court within whose territorial limit the place of felt effect situates. In this context the following decisions have been relied on : (i) AIR 1983 Cal. 307 (Paragraphs 24-25), (ii) AIR 1967 Bom. 355 paragraph 5, (iii) AIR 1971 Madras 155 (paragraph 8), (iv) 1981 (8) E.L.T. 730, (v) 1990 (49) E.L.T. 179, and (vi) 1987 (31) E.L.T. 895. 14. Learned Advocate General appearing on behalf of Essar Steel India Ltd. one of the supporting respondents in his argument reiterates elaborately the contention of Dr. Singhvi and brought additional decisions on the question of jurisdiction and amendment. 15. Mr.....
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....o been followed in other judgments of this Court reported in AIR 1987 Cal. 24 and 1933 (2) CLJ 44 respectively. 19. This Court has no jurisdiction, going by the averment made in the present writ petition, as no part of cause of action is pleaded to have arisen within the territorial limit of this Court and this has been settled in the Supreme Court decisions reported in 1985 (3) SCC 217, 1994 (4) SCC 711, 1998 (108) E.L.T. 251 and 1988 All. 36. 20. On merit of this amendment application they contend that there is no question of amendment in this matter. The principal grievance in the writ petition is against the decision of the Designated Authority dated 8th February, 1999. This decision was taken at and communicated by letter dated 8th February, 1999 issued by the Designated Authority, from New Delhi. 21. They contend realising the futility of the main prayers of the writ petition, for the purpose of granting amendment emphasis is sought to be laid by the petitioners upon the prayers (a) (iii) and (d) of the writ petition. In any event, allegations and averments made in the proposed amendment are not the cause of action nor the same have any nexus with the ....
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....at it will appear from the aforesaid judgment that the right of the parties is determined by the facts as they existed on the date of an action is instituted. Moreover, it will appear from the act and conduct of the petitioners this belated amendment is wholly mala fide inasmuch as the said notification was issued dated 1st November, 1999 and the writ petitioners allowed the period prescribed by the said notification to expire and no application for amendment was made. Now after more than 10 months the present application for amendment is taken out, the same is barred not only because of delay but by reason of the fact as the proposed amendment seeks to introduce a futile, infructuous and mala fide point. 25. Having heard the learned Advocates for the parties in this amendment application I am to consider whether I will decide the question of jurisdiction of this Court while determining the question of amendment or not. 26. The learned Advocates for all the parties have cited a number of decisions on the aforesaid point apparently both in favour and against the aforesaid proposition. After considering the principles laid down by the various Courts on this point and ....
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.... decision on the question of amendment in the reported case was rendered apparently following earlier Division Bench judgment reported in AIR 1973 Cal. 133. With great respect to the learned Single Judge the correct ratio laid down by the Division Bench was not followed as the learned Single Judge has omitted to record that Division Bench held where the court inherently lacks jurisdiction either pecuniary or territorial it cannot grant any amendment of the plaint to bring the case within its jurisdiction. 32. The decision of the learned Single Judge of this Court reported in AIR 1987 Cal. 24 has rather observed, following the earlier decision of this Court reported in AIR 1960 Cal. 540 and a decision of Bombay High Court reported in AIR 1950 Bom. 345 that it is permissible for the court to allow amendment of the jurisdictional fact which was lacking originally. In other words, if the plaint did not disclose that the court had jurisdiction the plaintiff was entitled to show other facts that it had jurisdiction. I respectfully accepting observation of the learned Single Judge, Justice C.K. Banerji, hold that the court can entertain an application for amendment of the plaint i....
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....he case should the amendment be allowed either to incorporate jurisdictional fact or new cause of action on subsequent event in this case? 35. The object of the legislature empowering the court to allow amendment of the pleading is for the purpose of determining the real question in controversy between the parties which are to be felt necessary by the court. This will appear from the language of Order 6 Rule 17 of the Civil Procedure Code (since this Court has adopted under the Rule 53 relating to constitutional matter, the provision of Civil Procedure Code as far as possible). Order 6 Rule 17 : "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such forms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." 36. Such questions obviously must have nexus and/or relation with the controversy arose at the time of filing of the suit. Therefore in order to decide this question, to my mind, the duty of the Court is to examine what is controversy between the parties highlighted in the original ple....
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....sed on the assumption that since the notifications dated 10th and 11th December, l998, issued under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 inter alia provide a price mechanism in the style of floor price for import of HRC/strips/sheets/plates, the domestic industry therefore would not suffer any injury and such being the case, under the changing circumstances in future, the petitioners may submit a fresh petition which would be considered at that point of time on merits. (para 27) By virtue of the aforesaid communication dated 8th Febtuary, 1999 the concerned respondents not only allowed the countries mentioned in the second anti-dumping petition to go scot free in spite of instances of dumping of the said items of import, but in the near future if the aforesaid notifications are modified to the detriment of your petitioners and/or withdrawn, your petitioners will be exposed to the high risk of anti-dumping of the said items once again and before anti-dumping duties are imposed again a considerable passage of time will pass causing irreparable loss and injury to the petitioners." (para 29) 40. Dr. Singhvi, learned Advocate General and Mr. J....
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....sposed of this second anti-dumping petition otherwise than the way and in the manner it has been decided by the impugned letter, or not. This is also admitted by the petitioners elaborately in paragraph 3 of the amendment application. 43. For the purpose of deciding the aforesaid question maintenance of floor price is not necessary and it cannot be a question in relation to controversy in the writ petition. The maintenance of floor price may or may not be a piece of evidence and/or rather admission on part of the government that anti-dumping petition needs to be decided in favour of the applicants. This question may be a relevant factor before the Designated Authority who decides the application for imposition of anti-dumping duty. So I hold that the so-called petitioner's 'a quia timet' action is absolutely misplaced here. 44. By the proposed amendment the writ petitioner wants to challenge notification dated 1-11-1999 being No. 31 (RE-99) 1997-2002 by which the floor price of H.R. Coil was reduced from US D 302 per Metric Tonnes and then withdrawn altogether. The whole grievance of the petitioner is that the floor price should not have been withdrawn at all keepin....
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....nless the petitioner makes out such a case the writ petition cannot be entertained. If no case being made out it cannot be said to be any cause of action having been disclosed so as to bring within the purview of amendment by way of insertion of new cause of action or for that matter a subsequent event. Even the case sought to be brought by amendment has become infructuous and futile as the effect of impugned notification has come to an end because of efflux of time. Therefore the cases cited in support of the subsequent event or bringing new cause of action are absolutely inappropriate here as there is no prima facie entertainable case. Therefore I do not find any merit on this amendment application. 47. Moreover I find this application is wholly mala fide and this has been taken out at a stage when the hearing of the writ petition was being taken up. It is not that the so-called subsequent event was not within the knowledge of the writ petitioner and this has occurred as far back as in November 1999. This could have been brought at that stage but it was not done so rather an application for interim relief was made after the aforesaid notification was issued, for maintaini....