R.K. Malhotra vs Union Of India
1995 Latest Caselaw 1009 Del

JUDGMENT

Devinder Gupta, J.

(1) By this application, purported to be under Order 47 Rule 1 of the Code of Civil Procedure, the petitioner-applicant has sought review of the judgment dated 11th September, 1995, rendered in Cw 6113/95 - R.K.Malhotra & Others v. Union of India and others - dismissing the petition filed under Article 226 of the Constitution of India.

(2) The petitioners having a share holding of 4.17%, 2.29%, 2.25% and 22.78% respectively in M/s Harbans Lal Malhotra & Sons Ltd. (respondent No.5) had challenged the approval granted by respondents 1 to 4 to M/s Gillette International (respondent No.6) in investing up to 49% of equity capital of the fifth respondent, inter alia, on the grounds that the approval granted was without authority of law; and that the material required to take decision was not available with respondents 1 to 4, the decision was vitiated for want of application of mind. The grounds seeking review are that the principal issues raised have remained unresolved and unadjudicated. The ground that respondent Nos. 1 to 4 had usurped the powers of Reserve Bank of India, granted under the Foreign Exchange Regulation Act (FERA) though sought to be urged in an application moved to amend the petition has remained undecided. It was pointed out by "the petitioners that the application of respondent No.6 lacked particulars regarding relevant factors, the same could not have been taken into consideration by respondents 1 to 4 while granting approval. Another ground is that there are errors apparent in the judgment, which is a sufficient cause to review the same. It is also stated that though the petitioner had moved an application seeking production of relevant files of respondents 1 to 4 and the court had also directed the relevant files to be brought to court, the application remained undecided. Thus, non disclosure of documents also constitute a sufficient cause for review of the judgment.

(3) Having heard learned counsel for the petitioner and gone through the record and the judgment, we are of the view that there is no ground made out for review of the judgment.

(4) In the judgment, after noticing the contentions of the learned counsel for the petitioner that (1) there was non application of mind by the authorities concerned in granting approval to Gillette, and (2) the fourth respondent had no such authority in law to grant such an approval and it was only the Reserve Bank of India, which was competent to take decision, there is discussion on the provisions of law, the facts of the case and the detailed submissions of the counsel for parties. The court rejected the second contention observing: "We will, therefore, reject the submission of the petitioners that by granting approval the Central Government has acted against the provisions of section 19 and/or section 29 of Fera and this would be particularly so when no basis have been laid in the petition to challenge the approval on this ground."

(5) The first contention was also rejected, on consideration of all submissions made including the one that relevant factors were not considered. The Court has observed: "The provisions of the Foreign Exchange Regulation Act and the Monopolies and Restrictive Trade Practices Act have not been given a complete goby by the approval. The issues which have been mentioned above and which, according to the petitioners, were not adverted to while granting approval and which issues were expanded in detail in the course of arguments do not affect the working of Hlm and the rights and interests of shareholders. As ' a matter of fact, we are not concerned and it cannot also be argued that the approval harm the interest of Hlm or the right of the petitioners as shareholders as these arc being looked into by the Clb at the instance of the petitioners themselves. The proposed agreement or the agreement of collaboration between Hlm and Gillette has also been made subject-matter of consideration before the Clb and that loo by the petitioners. The only argument with which we are concerned and which has been squarely raised is that the approval' is in violation of the Industrial Policy inasmuch as the guidelines and objectives and decisions as mentioned in the Industrial Policy were not kept in view. What issues were not kept in view, according to the petitioners, in summary form we have mentioned above. The petitioners want us to examine threadbare if all these questions were in the mind of the authority and considered before granting the approval. Arguments were addressed in considerable detail and various judgments cited but we do not think it is necessary for us to consider them all. In arriving at decision in this case we are certainly guided by the principles set out in all these judgments. The fact remains that the proforma which has been prescribed under which application is to be filed before the Fipb for approval is not statutory in nature and even otherwise the application gives all the relevant details and the authorities need not insist on strict compliance of the application being submitted in the form prescribed. Then the authorities would be entitled to see the application if filed did meet in substance the requirements for grant of necessary approval under the Industrial Policy and the authorities need not examine the whole matter in the form of question paper and its answers. Substance of the matter is to be seen. The grievance of the petitioners is to the grant of approval for foreign investment up to a maximum of 49% of equity capital of Hlm commencing initially with 26%, and this approval on this count is subject to various conditions. Under the Policy, the Government welcomes foreign investment which is in the interest of country's industrial development. It is also a matter of policy that the Government has taken decision that foreign equity proposals need not necessarily be accompanied by foreign technology agreements. Respondents 1 to 4 are right in their submissions that foreign investment will itself bring the attendant advantages of upgrading of Indian technology, the need for increasing availability of better quality products to consumers at competitive prices, likely inflow of foreign exchange and expected export earnings. Gillette is a world leader in razor blade industry having latest technology available to it. What type of technology Gillette will bring to India has again been made a subject- matter of an issue before the Clb where Gillette has also been added as a parly and all at the instance of the petitioners. It is difficult to understand what the petitioners are complaining about in the present petition. No right of their has been infringed nor Hlm made to suffer on any count by granting the approval. Petitioners have not at all addressed themselves to this aspect of the matter that how the company or they are going to suffer on account of grant of approval, their consideration for various issues raised notwithstanding."

(6) The court in the judgment has duly considered and adverted to all the submissions and taken decision thereon. Learned counsel by way of Review wants us to re-appraise the arguments, It is to be understood that review proceedings are not by way of appeal. Review must be confined to error apparent on face of the record. Error must be such as would be apparent on mere looking of the record without requiring any long drawn powers of reasoning. Re-appraisal of the entire material on record for finding an error would be outside the scope of review. In case the court has taken one view on consideration of the submission, for which it did not thought it proper even to look at the summoned record, we see hardly any ground made out to entertain this review petition.

(7) Dismissed.