The below is a copy of Transfer petition filed before the Supreme Court of India and came up before Justices Dalbeer Bhandari and B S Chauhan on September 11, 2009. They refused to transfer the case filed against Sebastian Rodrigues from Goa by Fomento mining company from Goa at Calcutta High Court in December 2008 to a competent court at Goa. This petition is made public for the reasons of public debate and further the cause of Freedom of Speech and Expression guaranteed under article 19 of the Constitution of India as well as Article 19 of Universal declaration of Human Rights.
IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
TRANSFER PETITION (CIVIL) NO. OF 2009
IN THE MATTER OF:
SEBASTIAN alias SEBI Rodigues, resident of H.No.31/A, Igrez Vaddo, Marna, Siolim, Bardez,Goa. 403517.
Petitioner
VERSUS
SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD., a company registered under the Companies Act, 1956 having its Registered Office at Vila Flores da Silva, Erasmo Carvalho Street, Margao-Goa, 403
Respondent
With
I.A.No. /2009: Application for Stay
PAPER-BOOK
FOR INDEX: PLEASE SEE INSIDE
ADVOCATE FOR THE PETITIONER: ANITHA SHENOYINDEX
S.No.
Particulars
Pages
1.
Listing Performa
A1 – A2
2.
Check List
A-3 – A4
3.
List of dates/Synopsis
4.
Transfer Petition with Affidavit
5.
Annexure P-1: A true copy of the plaint in the Civil Suit No. 265 of 2008 filed before the Calcutta High Court undated
6.
Annexure P-2: A true copy of the interim application (GA No. 4142 of 2008) filed before the before the Calcutta High Court undated
7.
Annexure P-3: Typed copies of the posts on www.mandgoa.blogspot.com, a blog, annexed with the plaint.
8.
Annexure P-4: A copy of the order passed by the Calcutta High Court dated 24-12-2008.
9.
Annexure P-5: A copy of the order dated 12-1-2009 of the Calcutta High Court.
10
I.A.No. /2009: Application seeking stay of the proceedings in the Civil Suit no. 265 of 2008 at the Calcutta High Court.
SYNOPSIS AND LIST OF DATES
This petition seeks transfer of C.S. No. 265 of 2008, pending before the Calcutta High Court, seeking damages to the tune of Rs. 500 crores for alleged defamation by the petitioner. The respondent company has filed the above suit before Calcutta High Court despite the fact that the respondent as well as the petitioner herein is based in Goa and the subject matter of the suit pertains to matters arising out activities in Goa.
The respondent, M/S Sociedade De Fomento Industrial Pvt. Ltd, a company registered under the Companies Act, 1956, has its registered office at Goa, and has been in the mining business in the same state. According to the plaint filed in the above suit, the plaintiff, the respondent herein, is one of the largest industrial houses in the state of Goa.
The petitioner is a reputed social activist and is involved in making the matter of illegal/ unsustainable mining, a priority issue for the people of the state, including for the state government and the numerous interest groups in the state of Goa. He has been associated with a voluntary organisation called “Nature, Environment, Society and transformations (NEST)” founded by Dr. Bikram Dasgupta of the Department of Chemistry, Goa University, since 2002. He is also associated with Gawda, Kunbi, Velip, and Dhangar Federation (GAKUVED), a registered organisation since 1980, and is working as the Co-ordinator of its research and publication unit called ‘MAND, An Adivasi Resource Centre’. In this capacity, the petitioner also maintains a Blog, www.mandgoa.blogspot.com, on behalf of the GAKUVED. Some of the posts on the said Blog are subject matter of the present suit.
GAKUVED Federation is one of the leading social organisations of the tribal communities of Goa. The Federation has been active in taking up issues pertaining to the life and livelihood of the local tribal communities of the state of Goa. The Federation has been active in highlighting the deleterious impact of illegal/ unsustainable mining, mega tourism, highly polluting industrial projects, and the resultant ecological and environmental disasters that have had serious adverse effects on the lives of the people of Goa. It has been part of the public campaigns against these problems, which are a cause of concern for all the people of Goa.
The GAKUVED Federation came into existence in 1980, in the context of a long history of tribal struggle for getting their tribes listed as Scheduled Tribes under Article 342 of the Constitution. The GAKUVED Federation succeeded in getting Schedule Tribe status for Kunbi, Gawda, and Velip tribes when the Parliament passed the Scheduled Caste and Scheduled Tribes (Amendment) Bill 2000, on 7th January 2001, and the President of India assented to it on 8th January 2001. The GAKUVED Federation continues to demand full implementation of the Scheduled Caste and Scheduled Tribes (Amendment) Act 2001. Centrality of the GAKUVED Federation to the movement for getting Scheduled Tribe status for the Gawda, Kunbi and Velip tribes can be gauged from the fact that the campaign is usually referred to as the GAKUVED movement.
The Blog run by the petitioner on behalf of the GAKUVED Federation reports on various livelihood issues pertinent to the state of affairs in Goa. The themes on the Blog include the agrarian crisis, illegal/ unsustainable mining, destruction of beaches and of the ecology and environment of the state in general, and the illegal and criminal nexuses that permit activities harmful to the general public to continue despite widespread resentment and protest, etc. The Blog also reports on all other issues of public interest in Goa, such as culture, education, forest rights, lakes, land, laws, rivers, wild life sanctuaries, water, women, etc.
Reports on the commission of illegalities, destruction of environment and livelihood of affected villagers by the respondent are also part of the themes on the Blog. Thus, the reports on the Blog are not merely focussed on the respondent and its activities. The activities of the respondent find mention in the course of documenting the devastation wrought by mining in Goa, and in the recording of ongoing struggles against illegal and/ or harmful mining, including against some mines operated by the respondent,.
Such reports cannot be dubbed defamatory by any yardstick. Many civil society groups in Goa, notably the Goa Foundation, have been for many years documenting the environmental destruction wrought by the mining industry in Goa. It is pertinent to mention that in its recent book ‘Sweet Land of Mine’, the Goa Foundation has again exposed the depredation wrought by illegal and/ unsustainable mining in the state. The book exposes the wounds on the Western Ghats, even in government designated wildlife sanctuaries, inflicted by callous open cast mining. It also documents the consequent depletion of the water table, the irreversible contamination of water bodies, and the pollution of fields; all affecting thousands of villagers in interior Goa.
As is patent, the issue of illegal mining in the state of Goa is a great source of concern for the affected communities. Many villagers and civil society organisations have been protesting against the environmental devastation and destruction of rural and tribal communities of the state. The fact has also been underscored by many studies carried out by many reputed experts. The severity of the problem has been acknowledged by the state government at the floor of the assembly. As per the reports published in the newspapers, e.g. The Times of India, dated February 7, 2009, the Forest minister of the state, Filipe Neri Rodrigues, has also admitted that many cases of illegalities in mines and mining activity appeared to have been hushed up due to political pressure. Admitting corruption in both the mines and forest departments he regretted that the forest officials release wheel-loaders and other machinery within hours, after compounding the offences in cases of illegal mining. He also mentioned a violation of a court order stopping the extraction of ore in the Quepem taluka. He regretted that the forest department did not refer the violation to the court. Besides other offences, this failure amounted to abetting contempt of the court’s directive.
The respondent operates two mines- one at Colomba Village of Sanguem Taluka and another at Advalpal of Taluka Bicholim in the state of Goa. Local communities have been protesting against malpractices of the respondent by organizing public protests, memoranda to concerned authorities, as well as petitions before the court. The environmental damage caused by the respondent’s mines, and its impact on the livelihood of affected local communities is well documented and reported. The petitioner, through the Blog of his organisation, has been giving voice to these facts, and to the protests against them.
Be that as it may, the petitioner herein is prepared to defend any charges that may be leveled against him. However, it is submitted that the respondent has filed the above suit before the Calcutta High Court malafide, with the intention to harass the petitioner so that he and his organization may be forced to abandon the legitimate expression of protest against the illegal activities of the respondent in the state of Goa. The respondent company is part of one of the biggest industrial groups of the state of Goa, it has financial resources to prosecute the above suit at Calcutta High Court. The petitioner and his organization are of modest means, and they do not have the capacity to defend the suit at Calcutta, which is quite far away from the state of Goa, the state of his residence. In the circumstances, continuance of the above said suit at Calcutta High Court is against the interest of justice.
LIST OF DATES
1)
December 2008
The respondent filed a suit, being Civil Suit No. 265 of 2008 in the Calcutta High Court seeking a permanent injunction in favour of the respondent and against the petitioner restraining the defendant from publishing alleged defamatory in the said Blog of GAKVED and claiming a sum of Rs. 500 crores as damages for alleged defamation. The respondent also moved an application seeking interim directions. As the copy of the plaint as well as the application supplied to him does not have any date on it, no date is mentioned as the date of filing of the suit is not available.
The respondent herein also filed an application seeking ad interim injunction.
The suit annexed some selected ‘posts’ on the said Blog.
2)
24-12-2008
The court passed an ex parte interim order restraining the petitioner herein from “re-publishing the same articles and/or stories and/or news items and or any other write ups of any kind containing defamatory statements and/or remarks against the petitioner (the respondent herein) or its group companies in and officers in any blog/website through electronic or printing media or by any other publication,” till January 15, 2009.
3)
12-1-2009
The suit of the respondent was listed again. The court passed an order directing the petitioner to file an affidavit-in-opposition within three weeks, and directed the matter to be listed in six weeks hence. The court also extended the interim order for a further period of 10 weeks.
4)
Present Transfer petition before this Hon’ble court.
IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
Transfer Petition (Civil) No.................... of 2009
In the matter of:
SEBASTIAN alias SEBI Rodigues, 35 years of age, resident of H.No.31/A, Igrez Vaddo, Marna, Siolim, Bardez, Goa. 403517.
Petitioner
VERSUS
SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD., a company registered under the Companies Act, 1956 having its Registered Office at Vila Flores da Silva, Erasmo Carvalho Street, Margao-Goa, 403
Respondent
PETITION UNDER ARTICLE 139-A (2) OF THE CONSTITUTION OF INDIA R/W SECTION 25 OF THE CIVIL PROCEDURE CODE, 1908
To
Hon’ble the Chief Justice of India and His Companion Judges of the Supreme Court of India.
The petitioner most respectfully showeth:
1. This petition seeks transfer of C.S. No. 265 of 2008, pending before the Calcutta High Court seeking damages to the tune of Rs. 500 crores for alleged defamation by the petitioner. The respondent company has filed the above suit before Calcutta High Court despite the fact that the respondent as well as the petitioner herein are based in Goa and the subject matter of the suit pertain to the matters arising out of the activities undertaken in Goa.
2. The petitioner is a social activist. He is associated with many public causes in the state of Goa. He is concerned about the state of affairs in society. Since 2001 he has been visiting mining areas in Goa and various other parts of India to understand the impact of illegal mining on the people living in India’s mining regions. Since 2002 he has been volunteering his time for a voluntary organisation called “Nature, Environment, Society and transformations (NEST)” founded by Dr. Bikram Dasgupta of Department of Chemistry, Goa University. Since 2004 he has been associated with tribal organisation in Goa called “Gawda, Kunbi, Velip and Dhangar Federation (GAKUVED)” a registered organisation since 1980. In 2007 GAKUVED initiated its research and publication unit known as “Mand”. It has collaboration with Bindrai Institute of Research, Study and Action (BIRSA), Ranchi (Jharkhand), Centre of Studies of Developing Societies (CSDS-Lokniti), New Delhi, Vikas Adhyayan Kendra, Mumbai, and many other voluntary organisations. The petitioner is working as coordinator of ‘Mand’.
3. The Blog, www.mandgoa.blogspot.com, belongs to GAKUVED and not to individually to the petitioner. This is clearly specified in the Blog itself. A few posts on the said Blog have been made subject matter of the suit filed by the respondent before the Calcutta High Court.
4. GAKUVED Federation is one of the leading social organisations of the tribal communities of Goa. The Federation is actively pursing issues pertaining to the life of local tribal communities of the state of Goa. The organisation came into existence in 1980 in the backdrop of a long history of tribal struggle for getting their tribes included in the Schedule to the Constitution for the purposes of reservation. They succeeded in this campaign with the passing of the ‘Scheduled Caste and Scheduled Tribes (Amendment) Bill 2000’ on 7th January 2001. The GAKUVED movement continues to be active, demanding full implementation of the Scheduled Caste and Scheduled Tribes (Amendment) Act 2001, and on other issues.
5. The issues of illegal mining, mega tourism and industrial projects and resultant environmental disasters are a cause of concern of the Federation as they directly impact livelihood of the local communities. Mining has destroyed agriculture and life support in Sattari, Quepem, Bicholim and Sanghem Talukas of the state. Encroachment and silting of agricultural land and depletion of ground water by the mining companies are the major reasons for these environmental disasters. The depletion of ground water in these talukas has been such that there is tremendous water shortage even for the drinking purpose. Ruthless bulldozing of forests has played havoc with tribal dwellings in Colamb and Sanghem. The health of these communities has also suffered due to dust pollution caused due to mining and incidence of various lung diseases such as Bronchitis and Tuberculosis is very high in these communities. Consequently, local communities are protesting against illegal mining activities in their areas. The Federation has been offering solidarity to the struggling local communities in their struggle.
6. The respondent is a company incorporated under the Companies Act, 1956 having his Rigistered Office at Villa Flores da Silva, Erasmo Carvalho Street, Margao – Goa – 403 601. It is one of the largest industrial houses in Goa. The respondent operates various mines, including one at Colomba Village of Sanguem Taluka and Advalpal of Taluka Bicholim in the state of Goa. Mining activities of the respondent in the above villages has been a subject of protest by the local communities. Besides organizing public protests, the local communities have also brought malpractices of the respondent in the notice of concerned authorities and courts. The environmental damage caused by the respondent and its impact on the livelihood of affected local communities is well documented and reported.
7. Some time in December 2008, the respondent filed a suit, being Civil Suit No. 265 of 2008 in the Calcutta High Court seeking a permanent injunction in favour of the respondent and against the petitioner restraining the defendant from publishing alleged defamatory in the said Blog of GAKVED and claiming a sum of Rs. 500 crores as damages for alleged defamation. A true copy of the undated plaint of the abovesaid suit is annexed hereto marked as Annexure P-1.
8. The respondent herein also filed an application, being GA No.4142 of 2008, seeking ad interim injunction. A copy of the said application is Annexure P-2.
9. The suit annexed some selected ‘posts’ on www.mandgoa.blogspot.com, hereinafter referred to as the said Blog. Typed copies of the aforesaid posts annexed with the above plaint are Annexure P-3 herein.
10. On 24-12-2008, the court passed an ex parte interim order restraining the petitioner herein from “re-publishing the same articles and/or stories and/or news items and or any other write ups of any kind containing defamatory statements and/or remarks against the petitioner (the respondent herein) or its group companies in and officers in any blog/website through electronic or printing media or by any other publication,” till January 15, 2009. A copy of the order dated 24-12-2008 of the Calcutta High Court is annexed hereto as Annexure P-4.
11. The suit again came up for hearing on 12-1-2009. On that day, the court again passed an order directing the petitioner to file an affidavit-in-opposition within three weeks, and directed the matter to be listed in six weeks hence. The court also extended the interim order for a further period of 10 weeks. A copy of the order dated 12-1-2009 of the Calcutta High Court is annexed hereto as Annexure P-5.
12. The petitioner states that no other petition has been filed before this Hon’ble court seeking the same relief, and annexures P-1 to P-5 are true copies of the pleadings/documents which formed part of the records of the case in the Court below.
14. GROUNDS:
The transfer of suit is sought for on the following grounds.
I. Trial of the impugned suit at the Calcutta High Court shall result into denial of justice to the petitioner. The respondent company is one of the biggest industrial houses of the state of Goa. It has its registered office as well as a large measure of business operations in the state. Obviously the respondent has enough financial resources to prosecute the impugned suit at the Calcutta High Court, or for that matter, at any other court. Taking advantage of its financial strength and with full knowledge about the modest financial position of the petitioner and his organisation, the respondent has abused its right to choose a forum of its convenience, etc, as the dominus litis, in order to deny justice to the petitioner. The respondent is fully aware that the petitioner and his organisation, being of modest means, would not be able to properly defend the impugned suit at such a far away place and, hence, it shall be easier for the respondent to win the case. It is submitted that such a “victory” would be at the cost of justice. This Hon’ble court has settled that the right of the dominus litis to choose a forum and convenience of the plaintiff, etc. cannot eclipse the requirement of justice.
II. Institution of the impugned civil suit at the Calcutta High Court is an abuse of the process of law. The basis for invoking jurisdiction of the Calcutta High Court is that a part of the cause of action had arisen within the jurisdiction of the said court. The basis for this contention is that the impugned ‘posts’ on the Blog, the subject matter of the suit, have been published on the internet, making the posts universally accessible. It is submitted that the respondent cannot be allowed to use the reach of the medium to choose a forum for institution of the impugned suit in such a way that ends of justice are jeopardised.
III. The jurisdiction of the Calcutta High Court has invoked solely on the ground of publication of the impugned ‘posts’ on the internet. It is submitted that the respondent is fully aware that the said ‘posts’ pertain to activities in the state of Goa. Further, the respondent company is fully aware that these ‘posts’ have mainly been accessed in the state of Goa, where it carries on bulk of its business activities. In the circumstances, institution of impugned suit at Calcutta High Court is a clear abuse of law.
IV. The subject matter of the suit, the alleged defamatory reports and statements posted on the Blog of the GAKUVED Federation, pertains to the activities of the respondent in the state of Goa. The plaint makes it clear that the alleged defamatory remarks have been made about the mining activities of the respondent company pertaining to two mines situated in the state of Goa. It is submitted that news reports and comments posted on the Blog are true and correct and expose the illegalities being committed by the respondent company and protests being raised by the local affected communities and civil society organisations. In the circumstances, most of the oral as well as the documentary evidence regarding the alleged illegal activities of the respondent company would be available in Goa, and not at Calcutta. If the trial proceeds at Calcutta, voluminous evidence will have to be carried to Calcutta and several witnesses may have to travel to Calcutta to give evidence. Apart from the inconvenience likely to be caused to the witnesses, the petitioner would also be required to incur substantial travel expenses to secure the presence of the witnesses. Further, despite this the witnesses may be reluctant to travel the long distance to Calcutta. Considerable difficulty may also be experienced in securing discovery and inspection of documents. In the circumstances, the petitioner would be severely handicapped in his defence to the suit, if the suit is tried in Calcutta. The ends of justice, therefore, demand that the suit be transferred from the Calcutta High Court to a court of competent jurisdiction at Goa.
V. Much of the material posted on the impugned Blog is based upon news and other reports published in local Goa publications. Many of these reports etc are in local languages. Further, many of the witnesses whom the petitioner will need to produce in order to substantiate his defence do not know any other language except their mother tongue, i.e. Marathi or Konkani. These factors also militate against a fair trial to the petitioner in Kolkatta.
VI. Institution of the impugned civil suit at the Calcutta High Court is malafide and has been filed for collateral purposes. The impugned suit has been filed by the respondent company at the Calcutta High Court with full knowledge and intention that the petitioner being a social activist shall not, and should not be able to defend the suit. Further, the main motive of the respondent company behind instituting the impugned suit is to severely curtail the petitioner’s (and his organisation’s) legitimate activities to express protest against the illegal mining activities in the state of Goa. It is submitted that the impugned suit has been instituted by the respondent with a clear understanding of these facts, namely that he shall have to restrict his legitimate activities as he would be substantially engaged in defending the suit. Such a curtailment is a serious violation of his fundamental rights. It is submitted that such conduct has been severely deprecated and frowned upon by this Hon’ble court.
VII. It is respectfully submitted that the totality of facts and circumstances of the civil suit show that transfer of the impugned suit from Calcutta High Court to a court of competent jurisdiction in the state of Goa shall further the cause of justice. It is submitted that both the parties to the impugned suit are based in Goa. The subject matter of the suit pertains to activities being undertaken by the parties in the state of Goa. Evidence, oral as well as documentary, relevant for proper adjudication of the suit is situated in Goa. Transfer of the impugned suit shall not cause any prejudice to the respondent company. Further, it is patent that the court of competent jurisdiction in Goa would get better assistance for proper adjudication of the impugned suit. In the circumstances, it is submitted that the transfer of impugned suit shall immensely advance ends of justice.
VIII. There is justification for instituting the impugned suit at Calcutta High Court by the respondent company. The only inescapable conclusion that emerges out of the facts and circumstances is that the impugned suit is malafide and has been instituted for collateral purposes. This Hon’ble court has held in the matter of Troikaa Pharmaceuticals Limited Versus Wockhardt Limited and Anr (Transfer Petition (Civil) No. 60 of 2002) that the courts cannot be allowed to be used for collateral purposes. In the circumstances, it is eminently desirable for the ends of justice that this Hon’ble court transfers the impugned civil suit from Calcutta High Court to a court of competent jurisdiction in the state of Goa.
PRAYER
In the circumstances, it is prayed that this Hon’ble court may be pleased to:
1. Transfer the suit bearing number C.S. No. 265 of 2008, entitled SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD -Versus- SEBASTIAN alias SEBI Rodigues, pending before the Calcutta High Court, to a court of civil judge, senior division, Bardez at Mapusa in the state of Goa; and
2. Pass such other order/orders as this Hon’ble Court may deem fit in the facts and circumstances of the case.
Drafted by:
Filed by:
Salar M. Khan, Advocate
Anitha Shenoy
Advocate on Record for the Petitioner
Drawn on:
Filed on:
IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
I.A.No. /2009
IN
TRANSFER PETITION (Civil) NO. OF 2009
IN THE MATTER OF:
SEBASTIAN alias SEBI Rodigues
Petitioner
VERSUS
SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD.,
Respondent
APPLICATION FOR STAY
To,
The Hon’ble Chief Justice of India and His Companion Justices of the Supreme Court of India
The humble petition of the Petitioner above named
MOST RESPECTFULLY SHOWETH:
1. This Transfer Petition is being filed seeking transfer of Civil Suit No. 265 of 2008 from Calcutta High Court to a court of competent jurisdiction in Goa.
2. The petitioner craves leave of this Hon’ble Court to refer to on rely upon the facts and circumstances referred to in the accompanying transfer petition.
3. The petitioner has excellent case on merits and the balance of convenience lies in favour of the petitioner and against respondent. The petitioner will suffer irreparable damage if the proceedings in the impugned suit are not stayed by this honourable court.
P R A Y E R: -
In the circumstances it is prayed that this Hon’ble Court may be pleased to: -
a. Pass an order, ex parte order staying proceedings in the suit no C.S. No. 265 of 2008, entitled SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD -Versus- SEBASTIAN alias SEBI Rodigues, pending before the Calcutta High Court, till pendancy of the present petition;
b. Confirm such interim order after notice of motion to the respondent; and
c. Pass such other order/orders as are deemed fit..
ANITHA SHENOY
Advocate for the Petitioner
PLACE: NEW DELHI
FILED ON: /04/2009
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