TaxTMI 
TaxTMI 
2018 (1) TMI 566
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.... pipeline laying activity in the Dahej SEZ area for transportation of Natural Gas; c. Pending the hearing and final disposal of this petition, to stay the operation, execution and implementation of the permission accorded by the respondent No.4 i.e. the Approval Committee in its 76th meeting held on 11.10.2007 at Item No.76.4.1; d. Pending the hearing and final disposal of this petition restrain the respondent Nos.1 and 2 from carrying out any pipeline laying activity in the Dahej SEZ area for transportation of Natural Gas; e. To grant such other and further reliefs as this Hon'ble Court deems fit and proper in the facts and circumstances of the case; f. To award costs of this petition." 2. It may be noted that the petition filed on 30.11.2017 was sought to be circulated on the same day at 2.30 p.m., and the said permission was granted by the Court, considering the urgency in the matter. The Court after hearing the learned Sr. Advocate Mr.Mihir Thakore for the petitioner and the learned Sr. Advocate Mr.Kamal Trivedi appearing on caveat for the respondent No.1 M/s.GAIL India Limited (hereinafter referred to as "M/s.GAIL"), had issued the notice....
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....ained in the SEZ Act sought permission from the respondent No.4 Approval Committee to lay 8" dia pipeline from its existing Dahej Ural Pipeline to the plant of the respondent No.2 M/s.OPAL for providing facility for transportation of natural gas. The respondent No.4 Approval Committee, Dahej SEZ Limited (hereinafter referred to as "the Approval Committee"), in its meeting held on 11.10.2017 at Item No.76.4.1, decided to approve the said request of the respondent No.1 (Annexure-D). According to the petitioner, such permission could have been granted by the Board of Approval constituted under Section 8 of the SEZ Act and not by the Approval Committee constituted under Section 13 of the said Act. The petitioner being a Co-Developer had exclusivity to develop infrastructure for transportation of gas and distribution of gas within SEZ area in view of the agreement dated 27.7.2009 entered into with the respondent No.3, DSL. The petitioner, therefore, wrote a letter on 8.11.2017 (Annexure-E) to the respondent No.3 i.e. the CEO, M/s.DSL, requesting him to reconsider the decision of granting approval to the respondent No.1. The CEO of the respondent No.3, therefore, wrote a letter dated 24.....
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.....5.2010 by the Petroleum and Natural Gas Regulatory Board under Regulation 17(1) of the Petroleum and Natural Gas Regulatory Board (Authorizing Entities to lay, build, operate or expand Natural Gas pipelines) Regulations, 2008 (hereinafter referred to as "the PNGRB Regulations 2008") (Annexure-R/1). On 27.12.2011 a lease deed was executed between the respondent No.2 M/s.OPAL and respondent No.3 M/s.DSL, and clause 4.6 thereof permitted the M/s.OPAL to obtain any service, amenities or facilities, which are not provided by the M/s.DSL and the Co-Developer the petitioner (Annexure- R/2). On 12.10.2016 the petitioner by E-mail refused to book additional supply of gas and communicated to M/s.OPAL to look for an alternate arrangement for additional capacity (Annexure- R/3), by which the petitioner had waived its right under the agreement with DSL. 6. The respondent No.1 has further contended that on 31.8.2017, the respondent M/s.GAIL had sought permission from the respondent No.3 M/s.DSL for laying 8" dia pipeline by Tap off from the existing respondent's DUPL 30" dia natural gas pipeline to M/s.OPAL across GIDC/SEZ area in existing Right of Use (ROU) of the respondent (Annexure-R/6).....
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....3 and the said pipeline was not installed by the petitioner. There are other various independent pipelines existing, whereby various units are receiving natural gas from different and distinct alternatives other than the petitioner, and therefore, the petitioner could not claim exclusivity as claimed in the petition. Further, as per the PNGRB Regulation 2008 an obligation is cast on the respondent No.1 to provide connectivity to the consumers within the tariff zone corridor up to 50 kms from either side of the natural gas pipeline and that the premises of M/s.OPAL is located approximately 25 kms from the existing pipeline of the respondent No.1. The respondent No.1, therefore, had accepted the request of the respondent No.2 M/s.OPAL for transportation of natural gas, for which the commercial arrangements were also entered into. According to this respondent, supply of gas by creating Tap off would not fall within the definition of "infrastructure facilities" contained in Section 2(p) of the SEZ Act. The facility sought to be provided by the respondent No.1 is relatable to Section 14(1) of the said Act as the respondent No.1 would be supplying gas only to the respondent No.2 M/s.OPAL....
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....MMSCMD during the construction and commissioning phase of the plant, however, on the completion of the commissioning of the plant, it had anticipated increase of gas requirement for 100% production of its plant. M/s.OPAL, therefore, in terms of Clause 5.2 of GTA had made a request for the additional booking of transmission capacity to the petitioner through various E-mails, requesting an additional CT of 0.80 MMSCMD for the period from 10.10.2016 to 16.10.2016 and additional CT of 0.5 MMSCMD for the period from 17.10.2016 to 23.10.2016 at PLLGSPL connectivity. In response to the said request, the petitioner GSPL refused to confirm additional capacity in their pipeline and advised M/s.OPAL to make alternate arrangement by E-mail dated 12.10.2016. M/s.OPAL had again made a request for additional capacity through subsequent E-mails, however, GSPL had refused to provide the same citing reasons of being overbooked, as per the E-mail dated 13.10.2016. According to the respondent No.2, it had made several requests time and again for additional capacity, however, the petitioner had refused to provide the same. Lastly, it was refused by the petitioner as per the E-mail dated 24.4.2017. All ....
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....ied to obstruct M/s.OPAL from sourcing its transmission capacity requirement from other alternatives, and after managing with the DSL to issue back-dated letter 24.11.2017, GSPL through its letter dated 29.11.2017 intimated to M/s.GAIL and M/s.OPAL about their not granting NOC for laying of 8" dia pipeline. The said letter dated 29.11.2017 was received on 1.12.2017 after the interim relief was granted by the Court in the present petition. The said letter was replied by M/s.OPAL vide its letter dated 1.12.2017 (Annexure-R/VI). 10.The respondent No.2 has further contended that by the GTA Amendment Agreement dated 22.11.2017 (Annexure-R/VII) executed between the GSPL and M/s.OPAL, the GSPL had committed the capacity of only 0.75 MMSCMD CT to M/s.OPAL for the period from 1.1.2018 to 31.12.2019. Thus, according to the respondent No.2 all these material facts were concealed by the petitioner in the petition and had created a mirage urgency for filing the petition at the eleventh hour when almost entire work of laying pipeline was already completed by M/s.GAIL, which had started in the month of October, 2017. The respondent No.2 has also alleged other various suppression of material fa....
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....of its requirements were fluctuating, and therefore, M/s.OPAL opted for entering into various short-term CTs for specific volume for additional requirements above the 0.5 MMSEMD booked under CT-1. 12. As regards E-mail dated 12.10.2016 of the petitioner, wherein it was stated to make alternative arrangements, it has been contended by the petitioner that the said statement was made indicating that M/s.OPAL instead of insisting for capacity from PLL-GSPL, Dahej direct entry point, M/s.OPAL may make alternative arrangement to source and deliver gas at some other entry point including the one at GSPLM/ s.GAIL Dahej inter-connect entry point. It may be noted that the Schematic Diagram of arrangement of pipeline connectivity with the PLL, Dahej terminal and M/s.OPAL unit has been annexed as Annexure-D to the said affidavit-inrejoinder, and the same is made part of this order to understand the issue in better manner. 13. According to the petitioner, to overcome the issue of lower pressure at the delivery point, the petitioner GSPL had requested Petronet LNG Ltd (PLL) to provide separate header to GSPL at the PLL, Dahej terminal and accordingly separate header has been provided in Se....
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....y arguments, series of diverse and multifarious submissions were made by the learned Advocates appearing for the parties. The pith and substance of their submissions may be stated as under:- 15. Submissions of learned Sr. Advocate Mr.Mihir Thakore for the petitioner GSPL: 15.1 As regards the preliminary objection raised by the respondents in respect of alternative remedy being available, it has been submitted that the Courts have not been designated so far, as contemplated under Section 23 of the SEZ Act. Section 42 of the said Act for deciding disputes by Arbitrator does not apply to the parties as the dispute could not be said to be between two or more entrepreneurs or two or more developers or between an entrepreneurs and a developer. The provisions contained in Section 24 of the PMGRB Act also did not apply as under the said provision, the Petroleum Board has jurisdiction to decide the dispute relating to the matters enlisted in Subsection (2) thereof and the present dispute can not fall within any of the matters contained therein. Even otherwise, existence of alternative remedy could not be said to be an absolute bar against preferring writ petition under Article 226 of ....
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.... of granting exclusivity, and therefore, the exclusive right was granted to the petitioner by the respondent No.3 developer under the Co-Developer agreement, which is supported by the provisions of PNGRB Act. The respondent No.1 did not have unfettered right to lay any pipeline anywhere in India under PNGRB Act, as such right would be subject to the provisions of the SEZ Act, which has overriding effect in the event of any inconsistency between the two Acts. The expression "for the time being in force" would not only include the present legislations, but would also include future legislations, as interpreted by the Supreme Court in case of Yakub Abdul Razak Memon Vs. State of Maharashtra, reported in (2013) 13 SCC 1 (p. 653). 15.5 The respondent No.1 being Central Government authorized entity under Regulation No.17 of the PNGRB Regulations 2008 (hereinafter referred to as "the Regulations 2008), the schedule-J thereof does not apply to the respondent No.1. 15.6 Under the GTA, the petitioner has executed various capacity tranches from time to time, according to which the respondent No.2 has the obligation to supply gas at entry point at PLL-Dahej terminal at a particular press....
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....ocate Mr.Kamal Trivedi and learned Sr. Advocate Mr.Mihir Joshi with learned Advocate Mr.Vishwas Shah for the respondent No.1 M/s.GAIL:- 16.1 Raising the preliminary objection against the maintainability of the petition, it has been submitted that the petitioner has efficacious alternative remedy since the disputes between the petitioner, M/s.OPAL and M/s.GAIL could be resolved in a civil suit to be filed in the Designated Court, or through arbitration under Section 42 of the SEZ Act or by PNGR Board under Section 24 of the PNGRB Act 2006. The writ Court may not interfere with the contractual matters involving technical aspects. The petitioner has approached this Court with gross delay and laches. The petitioner had sent objections on 8.11.2017 with regard to the approval granted by the Approval Committee, and the work of laying pipeline had already been undertaken in October-November, 2017, however, the petitioner approached the Court after a long time and that too, seeking hearing on urgent basis at the eleventh hour on 13.11.2017. f approached the Court with clean hands and had suppressed gas transmission agreement between itself and M/s.OPAL, NOC dated 12.10.2016, the in-p....
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....he DSL and hence, also M/s.GAIL has right to supply gas under the PNGRB Act and its Regulations. Supply of gas by M/s.GAIL through its 25 mtr., long pipeline to itself i.e. M/s.OPAL being one of the units in SEZ, and in which M/s.GAIL is one of the major shareholders, cannot be considered to be "development, operation and maintenance of gas transmission pipeline infrastructure facility for the entire Dahej SEZ, under Section 2(p) of the said Act or under Rule 2(1)(s) of the said Rules. The said supply of gas is nothing but sale of goods. 16.6 The definition of "infrastructure facilities" given in Section 2(p) read with Rule 2(1)(s) is exhaustive in nature, inasmuch as Rule 2(1)(s) uses the words "means" followed by "includes" with the enumeration of specific/named facilities. "Transmission of Gas pipeline" is not mentioned therein. Letter dated 12.11.2009 (Annexure-B) granting approval to the agreement dated 27.7.2009 conferring exclusivity in favour of the petitioner in the matter of providing gas transmission pipeline infrastructure would not make the said agreement statutory one. 16.7 The power to grant approval dated 1.10.2017 by the Approval Committee to M/s.GAIL and com....
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....re and GSPC with 1.43% share, which is parent company of the petitioner GSPL. In response to the request made by M/s.OPAL for transportation of additional supply of gas on firm basis by various E-mails and for a period from 1.2.2017 to 31.1.2022, the petitioner GSPL had refused to supply additional quantity of gas by E-mail dated 12.10.2016 and other E-mails and advised M/s.OPAL to make alternative arrangement of gas supply, citing reasons of capacity being overbooked. The petitioner had created a situation where either M/s.OPAL had to close down its unit or to explore other source of its energy requirement of gas supply. According to Mr.Nanavati, the petitioner GSPL with GSPC tried to see that M/s.OPAL had to pay higher transmission cost for M/s.GAIL-GSPL connectivity and for PLL-GSPL connectivity. Submissions were also made to show as to how the petitioner had tried to use monopolistic structure against M/s.OPAL by not confirming the transmission through its network on firm basis. 17.3 Relying upon the decision of the Supreme Court in case of Hardeep Singh Vs. State of Punjab and Ors., reported in (2014) 3 SCC 92, it was sought to be submitted that the words "means" and "inclu....
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....al to reproduce the relevant provisions. Some of the relevant Clauses contained in Section 2 are as under:- "2. Definition.In this Act, unless the context otherwise requires, (a) xxx (b) "Approval Committee" means an Approval Committee constituted under subsection (1) of section 13; (c) & (d) xxx (e) "Board" means the Board of Approval constituted under subsection (1) of section 8; (f) "CoDeveloper" means a person who, or a State Government which, has been granted by the Central Government a letter of approval under subsection (12) of section 3; (g) "Developer" means a person who, or a State Government which, has been granted by the Central Government a letter of approval under subsection (10) of section 3 and includes an Authority and a CoDeveloper; (h) to (o) xxx (p) "infrastructure facilities" means industrial, commercial or social infrastructure or other facilities necessary for the development of a Special Economic Zone or such other facilities which may be prescribed;" Section 3 pertains to the procedure for making proposal to establish Special Economic Zone. Subsections (11) and (12) th....
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....irtue of any law other than this Act. The Central Government has framed the Rules namely the Special Economic Zones Rules, 2006 in exercise of the powers conferred by Section 55 of the SEZ Act. The relevant definition "Infrastructure" as contained in Rule 2(1)(s) reads as under: "2(s) infrastructure' means facilities needed for development, operation and maintenance of a Special Economic Zone and includes industrial, business and social amenities like development of land, roads, building, sewerage and effluent treatment facilities, solid waste management facilities, port, including jetties, single point moorings, storage tanks and interconnecting pipelines for liquids and gases, Inland Container Depot or Container Freight Station, warehouses, airports, railways, transport system, generation and distribution of power, gas and other forms of energy, telecommunication, data transmission network, information technology network, hospitals, hotels, educational institutions, leisure, recreational and entertainment facilities, residential and business complex, water supply, including desalination plant, sanitation facility;" 20. It is beyond any cavil that the provisio....
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....ition was sought by the learned Advocate for the petitioner on 30.11.2017 and the matter was permitted to be circulated and heard at 2.30 p.m. on the same day. The Court after considering the averments made in the petition and the documents annexed thereto, and after hearing the learned Sr. Advocate Mr.Mihir Thakore appearing with learned Advocate Mr.Aspi Kapadia for the petitioner and learned Sr. Advocate Mr.Kamal Trivedi and learned Sr. Advocate Mr.Mihir Joshi with learned Advocate Mr.Vishwas Shah appearing on caveat for the respondent GAIL, had granted an ad-interim relief, restraining the respondent No.1 GAIL from laying and connecting the 8" natural gas pipeline by tap off from its existing Dahej-Uran pipeline for supplying gas to the respondent M/s.OPAL situated in SEZ, Dahej. The respondents after service of the notices appeared and filed their respective affidavits-in-reply in detail, raising various contentions, including the contention that the petition suffered from the vice of suppression of material facts. The petitioner thereafter filed three affidavits-in-rejoinder one after the other, from which it has been found by the Court that the petitioner had not made true an....
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....wisted facts have been placed on record by the petitioner, the petition should be dismissed without entering into the merits of the matter. In this regard a very pertinent observations made by the Supreme Court in case of Prestige Lights Ltd. Vs. State Bank of India, reported in (2007) 8 SCC 449 deserve to be reproduced as under:- "33. It is thus clear that though the appellantCompany had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Inc....
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....n Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows: "9. ...It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant S.L.P. (C) No. 30469 of 2009 ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent." 46. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, h....
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....alternative remedy itself would not operate as bar, where the writ petition is filed for the enforcement of any fundamental rights, or where there has been violation of the principles of natural justice or where the order or proceedings are alleged to be wholly without jurisdiction or where the vires of the Act is challenged. In the instant case, the statutory powers of the Approval Committee and the Development Commissioner have been challenged by the petitioner, amongst others, and therefore, the petition could not be rejected on the ground of availability of an alternative remedy alone. Having said that, let us examine the other issues involved in the matter. 3. The bone of contention raised by the learned Sr. Advocate Mr.Mihir Thakore for the petitioner is that the action of laying of pipeline for transportation of natural gas by the respondent No.1 GAIL in Dahej SEZ area being an "infrastructure facility" within the meaning of Section 2(p) of SEZ Act, the necessary permission was required to be obtained by the GAIL from the Board of approval constituted under Section 8, and that the approval granted by the Approval Committee constituted under Section 13 was dehors the....
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.... the development, operation or maintenance of the units set up by an entrepreneurs in the Special Economic Zone. By necessary corollary, it would mean that the facilities or amenities needed for the units could not be said to be the infrastructure facilities needed for the Special Economic Zone. 5. It is well settled principle of interpretation of statutes that no word or provision should be considered redundant or superfluous. The legislature attributes a particular meaning to each word in a statute, and that word of a statute must prima facie be given its ordinary meaning. In this regard, a pertinent observations made by Supreme Court in case of Sankar Ram & Co. Vs. Kasi Nasicker and Ors., reported in (2003) 11 SCC 699, be made. "7. It is a cardinal rule of construction that normally no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute. In the field of interpretation of statutes, the courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have effect. It may not be correct to say that a word or words used ....
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....n a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute. Bearing in mind, the aforesaid principle of construction, if the expression any new member society occurring in the proviso to subsection (3) of Section 27 is construed, it conveys the only meaning that it refers to the societies to be formed hereafter and not of those societies which have already become member societies of the federal society. Therefore, the requirement of the completion of the period of three years from the date of its investing any part of its fund in the shares of such federal society would apply only to those societies which became member society of the federal society after 20th August, 2000. In this view of the matter, the impugned judgment of the High Court does not suffer from any infirmity. Even if there remained any doubt in the matter of interpreting the proviso, the Ordinance that has been promulgated on 27th February, 2001, called the Maharashtra Ordinance No. X of 2001, after the first proviso to subsection (3), a second proviso had been inserted, has removed any doubt or controversy in as much as it h....
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....ld not be said to be an infrastructure facility necessary or needed for the development of the respondent No.3 DSL, as contemplated in Section 2(p) read with Rule 2(1)(s) of the said Rules. In that view of the matter, the Court is of the opinion that under the circumstances, the respondent No.1 and respondent No.2 were not required to take any approval from the Board of Approval under Section 9(d) of the said Act. It is also pertinent to note that neither the Approval Committee, nor the Development Commissioner, at any point of time asked the respondent Nos.1 and 2 to obtain the approval from the Board of Approval, probably because they also did not consider such necessity of procuring additional supply of gas by M/s.OPAL from M/s.GAIL to be an infrastructure facility. The approval granted by the Approval Committee in its meeting held on 11.10.2017, and conveyed by the Development Commissioner vide letter dated 27.10.2017 is required to be construed as the approval granted in respect of the matter contained in Section 14(1)(c) read with Section 12(2) of the Act. The respondent No.3 DSL had also granted in-principle approval to the respondent No.1 as per the letter dated 29.9.2017. ....
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....ly to the units set up in the special economic zone, the claim of exclusivity made by the learned Sr. Advocate Mr.Thakore for the petitioner is found devoid of any merits. 12. The respondent No.3 M/s.DSL had already granted, in-principle approval to the respondent No.1 for offering land on Right of Use by letter dated 29.9.2017, subject to the conditions mentioned therein. One of the conditions was that the respondent No.1 M/s.GAIL had to obtain permission/approval from the development Commissioner SEZ, Government of India/Board of approval MOCI, Delhi for laying 8" dia pipeline by Tap off from existing M/s.GAIL - DUPL 30" dia natural gas pipeline to M/s.OPAL in Dahej SEZ area. The proposal being not for providing infrastructure facility for the development of SEZ, the approval of Board was not required, and hence the permission was rightly sought by the GAIL from the Development Commissioner who, in turn, had put up the proposal before the approval committee, and the said committee in its 76th meeting held on 11.10.2017 had decided to approve the said proposal. 13. It further transpires that the petitioner after having come to know about the said approval granted by the appr....
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....l activities including pipeline laying activities immediately. When the letter dated 24.11.2017 issued by the CEO of the respondent No.3 was received by the respondent Nos.1 and 2 only on 29.11.2017, there was no question of seeking NOC from the petitioner by the respondent Nos.1 and 2 before 29.11.2017 and therefore, there was no occasion for the petitioner to write letters on 29.11.2017 refusing to grant NOC to them. The Court, therefore, having found substance in the submission made by Mr.S.I. Nanavati for the respondent No.2 that the said letter dated 24.11.2017 was issued by the CEO of the respondent No.3 in collusion with the petitioner, with a view to create an imaginary urgency in the matter for filing the petition on 30.11.2017, though the petitioner was very much aware about the approval granted by the Approval Committee and the respondent Dahej SEZ as back as on 8.11.2017, the Court had directed the CEO of DSL to remain personally present with his affidavit explaining the situation. On his remaining present before the Court, a specific query was put by the Court as to what was the need for issuing the letter dated 24.11.2017 when the respondent No.3 DSL had already grant....
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....here is any inconsistency between any of the provisions contained in the two Acts. As transpiring from the long title of the PNGRB Act, the Act has been enacted to provide the establishment of Petroleum and Natural Gas Regulatory Board to regulate amongst others transportation, distribution, marketing etc, of petroleum products and natural gas so as to protect the interests of consumers and entities engaged in the specified activities to ensure uninterrupted and adequate supply of petroleum, petroleum products and natural gas in all parts of the country and to promote competitive markets. It is not disputed that the provisions of PNGRB Act applies to both, the petitioner GSPL and the respondent No.1 GAIL. Both are authorized entities as per Section 2(d) and common carriers as per Section 2(j) of the PNGRB Act. The PNGRB Board, in exercise of the powers conferred under Section 61 of the PNGRB Act, has framed and amended the Regulations from time to time, and has amended latest as per the Amendment Regulations,2016. The learned Sr. Advocate Mr.Thakore though relied upon the provisions of both the Acts, had failed to point out any inconsistent provision contained in the PNGRB Act, whi....