TaxTMI 
TaxTMI 
2021 (8) TMI 617
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....vocates Mr. Garvesh Kabra and Ms. Pooja Kabra, Advocates Mr. Akshat Bajpai and Ms. Ishanee Sharma, Advocates Mr. Ajay Bhargava, Ms. Vanita Bhargava, Mr. Aseem Chaturvedi, Mr. Arvind Kumar Ray and Ms. Vansha Sethi Suneja, Advocates. Ms.Vibha Narang and Mr.Akarsh Garg, Advocates. Mr.Debashis Mukherjee with Mr.Anand Shankar, Mr.Srijib Chakraborty, Mr.Pankaj Agarwal and Mrs. Ashnika Sharma Mukherjee, Advocates. Mr. Kumar Ankur, Mr. Karan Bindra and Mr. Bipul Kedia, Advocates. Mr.Yudhvir Dalal and Mr.Aswin Gopakumar, Advs. Mr.C.U. Singh, Sr.Adv and Mr.Darpan Wadhwa, Sr.Adv with Mr.Prathamesh Kamat, Mr. Malhar Zayaria, Mr.Ankur Kashyap, Mr. Shiv Iyer, Ms. Ankita Sen and Mr. Osama Butt, Advs. Respondents Through: Mr. Chetan Sharma, ASG with Mr. Asheesh Jain, CGSC, with Mr. Amit Gupta, Mr. Vinay Yadav, Mr. Akshay Gadeock, Mr. Adarsh Kumar Gupta and Ms. Parul Panthi, Mr. Amrit Singh, and Mr. Sahaj Garg, Advocates for UOI. Mr. Vikram S. Nankani, Sr. Adv. with Mr. Naresh Thacker, Adv. for R-3. Mr. Naresh Thacker with Mr. Jitendra Motwani, Ms. Rinkey Jassuja and Mr. Kumar Visalaksh, Mr. Udit Jain and Mr. Archit Gupta, Advocates for R-4 to R-6. Respondents Through Mr. Anil Soni, CGSC with Mr....
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....k LLP & Anr. A.G. India Retail Pvt. Ltd. Container Shipping Lines Association & Anr. Versus Union Of India And Ors. Central Board Of Indirect Taxes And Customs & Ors. The Director General O/O The Directorate General Of Shipping & Ors JUDGMENT C. HARI SHANKAR, J. 1. Between the time when imported goods land on Indian soil, and the Customs authorities release them from their charge so that they become part of the "commercial land mass" of the country, they suffer various financial exactions, statutory as well as contractual. It is not necessary for us, in these petitions, to enter into the intricacies of the procedures followed before the applicable duties or taxes are paid and the goods, are released by the Customs. We are concerned with the amount which the importers (or exporters, in the case of export goods) pay, during this period, to the shipping lines, Inland Container Depots (ICDs) and/or Container Freight Stations (CFSs). ICDs and CFSs are Customs Cargo Service Providers, who permit storage of imported goods, prior to their being released by the Customs after payment of duty, against pre-fixed and pre-determined charges. These charges involve various elements ....
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....such CFS. 3. Commissioners of Customs are authorised to notify a CFS as a Customs area under Section 8 of the Customs Act in any place declared by the Central Government as a Customs station under Section 7 of the Customs Act^2. However, before declaring a CFS, the Commissioners may assess the requirements of such facility in each Port/ICD/ACC for creation of such additional Customs area (CFS). If need be, the Commissioners may discuss such feasibility in the Regional Advisory Committee meetings or meetings with the Trade. Commissioners are advised, however before notifying any new CFS as Customs area in a Customs Station, they should call for the proposals by wide publicity and grant such facility only after fully satisfying themselves on the need, security, credibility of the persons concerned, suitability of the condition and other details of the applicant." (emphasis supplied) "Customs station" is defined, in clause (13) of Section 2 of the Customs Act, 1962 ("Customs Act", in short) as meaning "any customs port, customs airport, international courier terminal, foreign post office or land customs station". "Land customs station" is, in turn, defined, in clause (2....
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....id period, is pleaded as the justification. It is a matter of record that some importers did, in fact, clear their consignments even during this period. Assessment of the extent to which any particular importer or exporter was impacted would, by its very nature, involve, inherently disputed questions of fact. The petitioners' stand is that, irrespective of the individual facts of each case, orders and circulars issued by the MOS, DGS and CBIC entitle all importers and exporters to amnesty as sought, across the board. Whether they do, or not, is required to be determined by us in these petitions. 6. Without any further preliminaries, therefore, we may as well dive into the meat of the matter. A chronological sequence of events 7. On 11th March, 2020, the World Health Organisation (WHO) declared COVID-19 as a pandemic. 8. On 22nd March, 2020, the Prime Minister of India announced a "Janata curfew", to curb the spread of the COVID-19 pandemic in India. This was followed by an Order, dated 24th March, 2020, issued by the Ministry of Home Affairs (MHA), consequent on directions issued by the National Disaster Management Authority (NDMA) under Section 6(2)(i) of the Disaster ....
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....es incidental to mining operations. d. Manufacturing units of packing material for food items, drugs, pharmaceutical and medical devices. J. Addition of sub-clause (c) and (d) to Clause Sub-clause 6: a. Operations of Railways, Airports and Seaports for cargo movement, relief and evacuation and their related operational organisations. b. Inter-state movement of goods/cargo for inland and exports. K. Addition of sub clause (c) in exceptions to clause 6: c. Cross land border movement of essential goods including petroleum products and LPG, food products, medical supplies." Clearly, therefore, as the respondents before us have pointed out, there was no restriction on the movement of cargo, during the lockdown. We may note that the first lockdown was extended, initially, till 3rd May, 2020, vide MHA Order dated 14th April, 2020 ("the second lockdown"), thereafter, till 17th May, 2020 vide MHA Order dated 3rd May, 2020 ("the third lockdown") and till 31st May, 2020 vide MHA's order dated 17th May, 2020 ("the fourth lockdown"). Throughout, however, movement of cargo remained unrestricted. 10. The petitioners have placed, on recor....
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....ing towards smooth functioning of the Ports and its operational organisations, some delays in evacuation of goods from the ports have become inevitable due to the disturbance of the downstream services. 4. Whereas, the result of these developments some cargo owners have either suspended their operations or are finding it difficult to transport goods/cargo and complete the paperwork, resulting in detention of containers without their fault. 5. Whereas, some shipping lines have on their own volition decided to suspend imposition of any container detention charges for a limited period to give relief to the importers and exporters. There is, however, a need for more clarity in this respect for smooth functioning of the trade and maintenance of supply chain in the country. 6. Now, therefore, in order to maintain proper supply lines at the Indian seaports the shipping lines are advised not to impose any container detention charges on import and export shipments for the period from 22nd March, 2020 to 14th April, 2020 (both days inclusive) over and above free time arrangement that is currently agreed and availed as part of any negotiated contractual terms. Durin....
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....ountry. 2. Further, Ministry of Home Affairs, Government of India had vide its order No. 40-3/2020-DM-I (A) dated 25.03.2020 issued an addendum specifically giving exceptions to the operations of seaports for cargo movement and inter-state movement of goods/cargo for inland and exports to ensure regular supply of goods in the country. Through the above, the Central Government has made it clear that the smooth functioning of the Ports remain vital for the country as Ports are the main source for imports and exports of goods. 3. However, given the nation-wide lockdown, there is an inevitable impact in the form of delays in evacuation of cargo and inability to fulfil obligations by various parties/stakeholders due to the effect on the downstream services. 4. In view of the situation arising because of the lockdown and after considering the representations received from various stakeholders, Major Ports are directed that: - (i) In the light of the MHA order No. 40-3/2020DM-I(A) dated 25.03.2020 and by invoking power under Section 53 of Major Port Trust Act, 1963^7; each Major Port shall ensure that no penalties, demurrage, charges, fee, rentals are levied by the Major....
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....ges indicated at para 5 above by the Major ports, there is a need to ensure that the benefits extended by the ports are passed on to the end customer, for the period mentioned above, in the EXIM trade in non-containerised cargo also (i.e. bulk, break-bulk and liquids cargo) for smooth functioning of the trade and maintenance of supply chain in the country. 7. Now, therefore, in order to maintain proper supply chain at the Indian seaports, shipping companies or Carriers (and their agents by whatever name called) are advised not to charge, levy or recover any demurrage, ground rent beyond allowed free period, storage charges in the port, additional anchorage charges, berth hire charges or vessel demurrage or any performance related penalties on cargo owners/consignees of non-containerized cargo (i.e. bulk, brake bulk and liquids cargo) whether LCL or not, for the period from 22nd March, 2020 to 14th April, 2020 (both days inclusive), due to delay in evacuation of cargo caused by reasons attributable to lockdown measures since 22nd March, 2020. The above exemption/remission shall be over and above free time arrangement that is currently agreed and availed as part of any negot....
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....containers, and that CFS operators were extending all help. The response also highlighted the concerns of the CFSs, including the requirement of functioning throughout the lockdown. It was pointed out that, if blanket waiver from ground rent and penal charges was granted, as demanded by the importers, the importers would not take delivery of their containers at all, which would result in choking of the CFSs. Even so, it was pointed out that waivers, sought by importers, were being considered on a case to case basis. On account of their being required to continue to function, the CFSs, it was pointed out, were incurring huge expenses, substantially affecting their cash flow. In conclusion, the CFSAI reiterated the fact that, on bilateral basis, discounts in tariff were being extended by the CFSs to the importers. 17. Advisories, to CFSs and Shipping Lines, to "adopt a sympathetic and humanitarian approach while levying container detention charges/ground rent", and to consider the request of the trade for waiver of container detention charges, demurrage and ground rent beyond the free period, during the period of lockdown from 25th March to 14th April, 2020, were also issued by th....
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....mplementation of this order by port users including PPP concessionaire s, CFS, ICD, Shipping lines etc. If required, ports shall invoke relevant provisions of the agreements and take appropriate action. 11. This order supersedes the Order No. PD-14300/4/2020-PD VII dated 31st March 2020. 12. This order is issued under Section 111 of Major Port Trusts Act, 1963 with the approval of Hon'ble Minister of State for Shipping (IC) and to be implemented with immediate effect. This order shall also be followed by Kamrajar Port Limited." 19. As night follows the day, on 22nd April, 2020, the DGS issued similar directions, "to maintain the continuity", vide Order No. 11 of 2020, paras 4 to 8 of which read thus: "4. Whereas, the Ministry of Shipping Govt. of India vide its letter no. PD-14033/4/2020-PD VII dated 21st April, 2020 has superseded its earlier order No. PD-14300/4/2020-PD VII dated 31st March, 2020 and now has issued comprehensive directions to the Major ports to remit penal charges, demurrages, detention charges, dwell time charges, anchorage charges, penal berth higher charges, performance relate penalties, etc. levied on the Port users includi....
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....ed 24.3.2020 and subsequent order dated 15/4/2020 along with its amendments to impose lockdown from 22nd March 2020 to 3rd May 2020 to contain COVID-19 pandemic in the country. On account of lockdown measures, the logistics chain of businesses have been most adversely impacted. The chain includes the activities of all stakeholders (Importers, Exporters, Customs Brokers, Transporters, Labour, etc.) dealing with the clearance of cargo from Customs facilities viz., Ports, ICDs and CFSs. As a result, importers are not able to clear the import of consignments in many parts of the country for reasons that are beyond their control. In the circumstance, numerous importers and trade associations have requested for the waiver of penal charges, which are collected by the custodians on the imported goods lying at various ports, ICDs, CFSs beyond the normal free period. 2. In this context, it is seen that the Director General of Shipping, M/o Shipping vide Order No. 7/2020 dated 29.03.2020 and vide Order No. 8/2020 dated 31.03.2020 has advised the Indian seaports, carriers, shipping lines not to impose any container detention charges on import and export shipments for the lockdown peri....
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...., the CFSAI submitted that the advisories issued by the MOS and DGS were turning out to be counter-productive, as they incentivised importers not to take delivery of their consignments, which would be lying with the CFSs free of cost. CFSs were, in the process, overstocked with cargo. This, it was submitted, would result in a cascading adverse effect on the entire export-import trade. The CFSAI further submitted that CFSs functioned in accordance with the Handling of Cargo in Customs Area Regulations, 2009 ("the HCCAR") and that they were not bound by the instructions issued by the CBIC or other authorities. The tariff of CFSs - except for those located within the premises of Major Ports, which were a mere handful - were, it was submitted, not governed by the Tariff Authority for Major Ports (hereinafter "TAMP"), constituted under the Major Ports Act. The directions, to Major Ports, not to levy charges could not, therefore, it was submitted, be extended to CFSs, or impact the ground rent or demurrage charges lawfully chargeable by them. The CFSAI further pointed out that ground rent was charged only at the rates prefixed and predetermined, to which the importers were parties. 23....
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....ying/not charging the relevant charges etc." Following this exhortation, the communication "once again guided to make full and strict compliance of the said directions". 25. The petitioners rely on the above communications, Office Orders and Circulars to justify their prayer for a mandamus to CFSs, ICDs and Shipping Lines not to charge any penal detention, demurrage, ground rent or other charges for the delay, on the part of the importers, in either releasing their containers from the ICDs/CFSs, or in returning the containers to the shipping lines, during the period of lockdown imposed by the Government consequent on the COVID19 pandemic. 26. The CFSAI issued, on 11th May, 2020 and 18th May, 2020, Advisories to its member-CFSs. The Advisory dated 11th May, 2020 requested the member-CFSs to consider, over and above the ground rent waiver already granted during the period 22nd to 31st March, 2020, further 50% waiver of ground rent, prospectively, to customers who had not taken delivery of containers which arrived in the CFSs between 1st and 15th April, 2020, provided the containers were cleared on or before 20th May, 2020. The Advisory took stock of the contribution of CFSs ....
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....he petitioner-Association in Small Scale Industrial Manufacturers Association ("the Association", in short) petitioned the Supreme Court, under Article 32 of the Constitution of India, in the wake of the financial strain being faced by Micro, Small and Medium Enterprises (MSMEs) consequent on the COVID-19 pandemic. The ameliorative steps taken by the Reserve Bank of India (RBI) vide notification dated 27th March, 2020, it was urged, were insufficient. Other writ petitions, which also exhorted the Supreme Court to issue directions to the RBI, chiefly to extend the moratorium granted in respect of interest payable on loans beyond the date till which it had been granted by the RBI. Para 20 of the report enumerated the claims in the writ petitions before the Supreme Court into four categories, "namely, (1) waiver of compound interest/interest on interest during the moratorium period; (2) waiver of total interest during the moratorium period; (3) extension of moratorium period; and (4) there shall be Sector-wise economic packages/reliefs". Para 120 of the report again summarised the reliefs sought by the petitioners, and the submissions advanced in support thereof, thus: "120. ....
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....not amenable to judicial review; iii) Economic and fiscal regulatory measures are a field where Judges should encroach upon very warily as Judges are not experts in these matters. 123. In R.K. Garg v U.O.I., (1981) 4 SCC 675, it has been observed and held that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It is further observed that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this particularly true in case of legislation dealing with economic matters. 124. In the case of Arun Kumar Agrawal v. U.O.I., (2013) 7 SCC 1, this Court had an occasion to consider the following observations made the Supreme Court of the United States in the case of Metropolis Theatre Co. v. Chicago, 57 L.Ed. 730 : 228 US 61 (1913): "...The problems of Government are practical ones and may justify, if they do not require, rough accommodation, illogical, if may be, and unscientific. But even such criticism should not be hastily expr....
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....pert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts. 129. It is further observed that it is not the function of the Court to amend and lay down some other directions. The function of the court is not to advise in matters relating to financial and economic policies for which bodies like RBI are fully competent. The court can only strike down some or entire directions issued by the RBI in case the court is satisfied that the directions were wholly unreasonable or in violative of any provisions of the Constitution or any statute. It would be hazardous and risky for the courts to tread an unknown path and should leave such task to the expert bodies. This Court has repeatedly said that matters of economic policy ought to be left to the government. 130. In the case of Narmada Bachao Andolan v. U.O.I., (2000) 10 SCC 664, in paras 229 & 233, it is observed and held as under: "229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not an....
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....licy in the public interest and to act upon the same." 133. What is best in the national economy and in what manner and to what extent the financial reliefs/packages be formulated, offered and implemented is ultimately to be decided by the Government and RBI on the aid and advise of the experts. The same is a matter for decision exclusively within the province of the Central Government. Such matters do not ordinarily attract the power of judicial review. Merely because some class/sector may not be agreeable and/or satisfied with such packages/policy decisions, the courts, in exercise of the power of judicial review, do not ordinarily interfere with the policy decisions, unless such policy could be faulted on the ground of mala fide, arbitrariness, unfairness etc. 134. There are matters regarding which Judges and the Lawyers of the courts can hardly be expected to have much knowledge by reasons of their training and expertise. Economic and fiscal regulatory measures are a field where Judges should encroach upon very warily as Judges are not experts in these matters. 135. The correctness of the reasons which prompted the government in decision taking one co....
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.... to the extent it is feasible. The court would not interfere with any opinion formed by the Government if it is based on the relevant facts and circumstances or based on expert advice. It is not normally within the domain of any court to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, only where it is arbitrary and violative of any Constitutional, statutory or any other provisions of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. 139. No right could be absolute in a welfare State. Man is a social animal. He cannot live without the cooperation of a large number of persons. Every article one uses is the contribution of many. Hence every individual right has to give way to the right of the public at large. Not every fundamental right ....
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....Sector specific reliefs, that the notifications and circulars issued by the RBI and the Ministry of Finance ought not to have left the final decision regarding relief to bankers and that the relief packages offered by the Central Government, RBI, bankers and lenders were insufficient, thus: "143. Now so far as the submission on behalf of the petitioners that the RBI should have issued directions which are sector specific and addressing such sector specific issues is concerned, at the outset, it is required to be noted that as such the Committee headed by Shri K.V. Kamath had gone into such sector specific issues and gave its recommendations. The recommendations of the Kamath Committee have been substantially accepted by the RBI in its circular dated 7.9.2020 which provides for separate threshold for 26 sectors including power, real estate and construction. Even otherwise, it is required to be noted that every sector might have suffered differently and therefore it will not be possible to provide sector specific/sector-wise reliefs. The petitioners cannot pray for sector specific relief by either waiver of interest or restructuring by way of present proceedings under Articl....
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....d the bankers, it cannot be said that the UOI and/or the RBI have not at all addressed the issues related to the impact of Covid-19 on the borrowers. As such, none of the petitioners have specifically challenged the various circulars/policy decisions taken by the UOI/RBI. From the submissions made by the learned counsel appearing for the respective parties, it appears that the borrowers want something more than the reliefs announced. Merely, since the reliefs announced by the UOI/RBI ither may not be suiting the desires of the borrowers, the reliefs/policy decisions related to Covid-19 cannot be said to be arbitrary and/or violative of Article 14 of the Constitution of India. It cannot be said that any of the fundamental rights guaranteed under the Constitution are infringed and/or violated. Economic decisions are required to be taken keeping the larger economic scenario in mind. 148. Similarly, the relief sought that the moratorium period should be extended and/or the last date for invocation of the resolution mechanism namely 31.12.2020 provided under the 06.08.2020 circular should be extended are all in the realm of policy decisions. Even otherwise, almost five months w....
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....ing the moratorium period is concerned, it stands absolutely on a different footing. At this stage, it is required to be noted that in fact the Central Government has come out with a policy decision subsequently by which it is decided not to charge the interest on interest on the loans up to Rs. 2 crores. However, such relief is restricted to the following categories: (i) MSME loans up to Rs. 2 crore (ii) Education loans up to Rs. 2 crore (iii) Housing loans up to Rs. 2 crore (iv) Consumer durable loans up to Rs. 2 crore (v) Credit card dues up to Rs. 2 crore (vi) Auto loans up to Rs. 2 crore (vii) Personal loans to professionals up to Rs. 2 crore (viii) Consumption loans up to Rs. 2 crore 163. There is no justification shown to restrict the relief of not charging interest on interest with respect to the loans up to Rs. 2 crores only and that too restricted to the aforesaid categories. What are the basis to restrict it to Rs. 2 crores are not forthcoming. Therefore, as such, there is no rational to restrict such relief with respect to loans up to Rs. 2 crores only. Even otherwise, it is required to be ....
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....ring the moratorium, the same shall be refunded and to be adjusted/given credit in the next instalment of the loan account. 165. In view of the above and for the reasons stated hereinabove, the present petitions seeking reliefs, namely, (i) total waiver of interest during the moratorium period; (ii) to extend the period of moratorium; (iii) to extend the period for invocation of the resolution mechanism, namely 31.12.2020 provided under the 6.8.2020 circular; (iv) that there shall be sector-wise reliefs provided by the RBI; and (v) that the Central Government/RBI must provide for some further reliefs over and above the relief packages already offered stand dismissed. Connected IAs stand disposed of. 166. However, it is directed that there shall not be any charge of interest on interest/compound interest/penal interest for the period during the moratorium and any amount already recovered under the same head, namely, interest on interest/penal interest/compound interest shall be refunded to the concerned borrowers and to be given credit/adjusted in the next instalment of the loan account. All these petitions are partly al....
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....overnment authorities/RBI had themselves granted the relief of waiver from the requirement of paying instalments and (iii) in extending these benefits, the Government could not discriminate between borrowers identically situated, so that the benefit would enure to some borrowers, and stand denied to others. 29.9 All other reliefs stood denied by the Supreme Court, on the basic principle that Courts could neither arrogate, to themselves, the exercise of formulation of policy for granting relief in the wake of the COVID-19 pandemic, nor interfere with the policy formulated in that regard by the Government or the RBI, save and except where the policy was vitiated by arbitrariness, discrimination or mala fides. 30. Indian School v. State of Rajasthan 2021 SCC OnLine SC 359 30.1 Two sets of appeals were decided by the Supreme Court in this judgement, of which we are, presently, essentially concerned with one. The first set of appeals challenged the provisions of the Rajasthan Schools (Regulation of Fee) Act, 2016 ("the 2016 Act", in short), on the ground that it interfered with the autonomy of private unaided schools to fix the fees chargeable by them. The second set of appeals....
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.... subject of epidemic diseases and its management. Even those enactments do not vest any power in the State Government to issue direction with regard to commercial or economic aspects of matters between private parties with which the State has no direct causal connection, which we shall examine later at the appropriate place. In other words, the power of the State Government to deal with matters during the pandemic situation have already been delineated by the Parliament as well as the State legislature. 107. As such, it is not open to the State Government to issue directions in respect of commercial or economic aspects of legitimate subsisting contracts/transactions between two private parties with which the State has no direct causal connection, in the guise of management of pandemic situation or to provide "mitigation to one" of the two private parties "at the cost of the other". This is akin to - rob Peter to pay Paul. It is a different matter, if as a policy, the State Government takes the responsibility to subsidise the school fees of students of private unaided schools, but cannot arrogate power to itself much less under Article 162 of the Constitution to issue impug....
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....he State. Indeed, such policies and plans may include mitigation measures in respect of persons affected by disaster. The mitigation measures, however, are aimed merely for reducing the risk/impact or effects of a disaster or threatening disaster situation. Considering the sphere of functions of the State Authority including the State Executive Committee or different Authorities established at concerned level within the State, there is not even a tittle of indication that in the name of mitigating measures, the disaster management plan may comprehend issue of direction in respect of economic aspects of legitimate subsisting contracts or transactions between two private individuals with which the State has no direct causal relationship, and especially when the determination of compensation/cost/fees is the prerogative of the supplier or manufacturer of the goods or service provider of the services. The scheme of the Act of 2005 obligates the State Authority to assuage the concerns of the persons arising from "direct impact" of the disaster and to take mitigation measures to minimise the impact of such disaster and for that purpose, resort of capacity-building including of its own re....
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....(or the State Government) to issue order and directions in respect of school fee structure because of the pandemic situation." (Italics and underscoring supplied) Additionally, the Supreme Court also held that the executive order issued by the State of Rajasthan was ultra vires the powers vested in the Director, Secondary Education of the State of Rajasthan and also that the exactions, contemplated thereby, commercialised education. These aspects do not, however, concern the present dispute. 30.4 The Supreme Court has, in its decision in Indian School, therefore, clearly delineated the contours of the Disaster Management Act, and has warned against treating the beneficial covenants thereof as panacea for every evil, so as to allow the Governmental authorities to run amok. Particularly, the Supreme Court has disapproved interference, by orders seeking to draw power from the Disaster Management Act, with private contracts, or with "commercial or economic aspects of matters between private parties with which the State has no direct causal connection". This clarification, to be found in para 106 of the report in Indian School10, in fact, largely obviates the necessity of exami....
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....h which the State has no direct causal relationship, and especially when the determination of compensation/cost/fees is the prerogative of the supplier or manufacturer of the goods or service provider of the services". What may be assuaged, by measures adopted under the Disaster Management Act, holds the Supreme Court (in para 112 of the report) are "the concerns of the persons arising from "direct impact" of the disaster and for that purpose, the sort of capacity building including its own resources to wit, manpower, services, materials and provisions as noted in Section 2(p), and preparedness measures referred to in Section 2(m)". The argument of the respondents, before the Supreme Court, for according, to the provisions of the Disaster Management Act, an "expansive meaning... so as to include power to reduce school fees of private unaided schools", though "persuasive", was found, by the Supreme Court, to be unworthy of acceptance. In fine, the Supreme Court, after extracting, in extenso, Sections 22, 38 and 39 of the Disaster Management act, which set out the "functions of the State Executive Committee", "measures" which the State Government could take under the Disaster Managem....
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.... the disaster management plans, ensuring measures by various wings of Government for prevention and mitigate the effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation". 32.3 That the COVID-19 pandemic is a "disaster", as defined in Section 2(d) of the Disaster Management Act, is obviously not in dispute. "Disaster management", even as defined in Section 2(e) has, however, to achieve one of the objectives which find enumeration in sub-clauses (i) to (viii) therein. Any "disaster management" measures have, as per the said definition, to be "necessary or expedient" for achieving the said objectives. 32.4 Interpreted in their widest possible etymological connotations, the words used in the various sub-clauses of Section 2(e) may, possibly, be of unlimited scope. We are, however, spared the exercise of any detailed discussion in that regard, the law having been authoritatively enunciated in Small Scale Industrial Manufacturers Association and Indian School, which also delineate the precise contours of judicial intervention in such matters. The relevant passages from these decisions, which already stands extracted, elucidate ....
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....d into the schemes framed for providing succour to those affected. Financial constraints have also to be recognised. (v) In view thereof, no mandamus can issue to the Government to announce or declare particular relief packages or a particular policy, or to extend a policy beyond the extent to which it has been announced. It would be dangerous if the Court is asked to test the utility or beneficial effect or to appraise the policy based on affidavit evidence. The sequitur would, therefore, be that a writ court cannot frame the policy, modify the policy or extend the policy beyond its existing peripheries. (vi) Where, however, the policy is starkly discriminatory in nature, and secures preferential reliefs in favour of select citizens or categories of citizens to the exclusion of others who are identically situated, the Court would undoubtedly interfere. Similarly, where the policy is manifestly arbitrary, the court can step in. (vii) Directions, in respect of commercial or economic aspects of legitimate subsisting contracts or transactions between private parties, in the absence of any causal connection by the State, cannot be issued in the guise of ameli....
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....nment may by notification in the Official Gazette declared, or may under any law for the time being in force have declared, to be a major port". The Chennai Port, Cochin Port, Deen Dayal Port Trust, Jawaharlal Nehru Port, Kandla Port, Kolkata Port, Mormugao Port, Mumbai Port, New Mangalore Port, Visakhapatnam Port, V. O. Chidambaranar Port and Kamrajar Port stand notified as "Major ports", as on date. 33.3 Section 111, whereunder the Orders of the MOS, on which the petitioners place reliance, have been issued, empowers the Central government to issue directions to "the authority and the Board". "Authority" is defined, by Section 2(aa) as the Tariff Authority for Major Ports (TAMP). "Board" is defined, in Section 2(b) as the Board of Trustees constituted for any particular port under the Major Port Trusts Act. 33.4 Powers, function and authority of the Board and the TAMP 33.4.1 Sections 17, 28, 29, 31, 32, 34, 35, 35-A, 36, 37, 38, 39, 41, 42, 44, 45, 46, 47, 55, 56, 59, 60, 61, 62, 63, 64, 73, 81, 82, 83, 84, 85, 88, 93, 94, 95, 96, 97, 98, 100, 102, 103, 107, 116, 123, 127 and 130 of the Major Ports Trusts Act confers powers on the Board. Suffice it to state that none of ....
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....s or goods between vessels in the port or port approaches; (b) landing and shipping of passengers or goods from or to such vessels to or from any wharf, quay, jetty, pier, dock, berth, mooring, stage or erection, land or building in the possession or occupation of the Board or at any place within the limits of the port or port approaches; (c) cranage or porterage of goods on any such place; (d) wharfage, storage or demurrage of goods on any such place; (e) any other service in respect of vessels, passengers or goods." "49. Scale of rates and statement of conditions for use of property belonging to Board. - (1) The Authority shall from time to time, by notification in the Official Gazette, also frame a scale of rates on payment of which, and a statement of conditions under which, any property belonging to, or in the possession or occupation of, the Board, or any place within the limits of the port or the port approaches may be used for the purposes specified hereunder :- (a) approaching or lying at or alongside any buoy, mooring, wharf, quay, pier, dock, land, building or place as aforesaid by vessels; (b) enter....
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....ing lines, against storage of goods or failure to return the goods within the free period. The fixation of rates by the TAMP does not include, as a sequitur, the power to regulate collection of charges at such prefixed rates. 33.5 Section 111 of the Major Port Trusts Act empowers the Central Government to issue directives to the Board or to the TAMP. Such directives cannot, however, require the Board or the TAMP to perform any act which, by law, it is not authorised to perform. The jurisdiction vested by Section 111 is strictly delimited to issuance of directions to the Board of a Major Port or to the TAMP. The Central Government is not empowered, by Section 111, to issue directions to CFSs, ICDs or shipping lines. 34. The Merchant Shipping Act 34.1 The Merchant Shipping Act, as per its preamble, is "an act to foster the development and ensure the efficient maintenance of an Indian Mercantile marine in a manner best suited to serve the national interests and for that purpose to establish a National Shipping Board to provide for the registration, certification, safety and security of Indian ships and generally to amend and consolidate the law relating to merchant shipping".....
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....e to return the unloaded containers within the free period. 34.4 Section 7 of the Merchant Shipping Act empowers the DGS to exercise the power, authority or jurisdiction vested in the Central Government under the said Act. No provision to interfere with the levy or collection of charges, penal or otherwise, by CFSs or ICDs, for storage of the goods of importers or exporters in their premises, being vested on the Central Government by the Merchant Shipping Act, Section 7 could not, a fortiori, vest any such power in the DGS, either. 35. The Customs Act and the HCCAR 35.1 The provisions of the Customs Act, which have been pressed into service are Sections 7, 8, 45, 141, 143-AA and 151-A. 35.2 Section 7 empowers the CBIC to, by notification, appoint (i) ports and airports which alone shall be Customs ports or Customs airports and (ii) places which alone shall be ICDs or Air Freight Stations and places, for unloading of imported goods and loading of export. Section 8 empowers the Commissioner of Customs to approve proper places in any customs port for the unloading and loading of goods and to specify the limits of any customs area. "Customs area" is defined in Section 2 (11....
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....orters or exporters or for categories of goods or on the basis of mode of transport thereto for the purposes of facilitation of trade. The provisions reads thus: "143-AA. Power to simplify or provide different procedure, etc., to facilitate trade. - Notwithstanding anything contained in any other provision of this Act, the Board may, for the purposes of facilitation of trade, take such measures or prescribe separate procedure or documentation for a class of importers or exporters or for categories of goods or on the basis of the modes of transport of goods, in order to- (a) maintain transparency in the import and export documentation; or (b) expedite clearance or release of goods entered for import or export; or (c) reduce the transaction cost of clearance of importing or exporting goods; or (d) maintain balance between customs control and facilitation of legitimate trade." 35.7 Section 151-A of the Customs Act empowers the CBIC to issue orders, instructions and directions to officers of customs "for the purpose of uniformity in the classification of goods or with respect to the levy of duty thereon or for the implementation of any ot....
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.... (b) keep a record of each activity or action taken in relation to the movement or handling of imported or export goods and goods brought for transhipment; (c) display or make available in any other manner, information of process or movement or handling of imported or export goods and goods brought for transhipment; (d) demarcate separate areas for unloading of imported goods for their storage with respect to the category of importers, nature of goods, place of destination, mode of transportation or any other criterion as the Commissioner of Customs may specify having regard to the custody and handling of imported goods in a customs area; (e) demarcate separate areas for loading of export goods for their storage with respect to categories of exporters, nature of goods, examined and sealed containers other criterion as the Commissioner of Customs may specify having regard to the custody and handling of export goods in a customs area; (f) not permit goods to be removed from the customs area, or otherwise dealt with, except under and in accordance with the permission in writing of the [Superintendent of Customs or Appraiser]; (g) not ....
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....o publish and display, at prominent places including its website, the schedule of charges for the various services provided by him in relation to the imported goods or export goods in the customs area. 35.8.6 Of all the responsibilities envisaged by Regulation 6, therefore, the only responsibilities which have any bearing at all on levying of charges on goods are contained in Regulations 6(1)(l) and (6)(3). Regulation 6(1)(l) proscribes Customs Cargo Service Providers from charging any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer. This clause has no application to the present case, as we are not dealing with any goods which are seized, confiscated or detained. Regulation 6(3) requires the Customs Cargo Service Provider to publish and display, at a prominent place, including its website, the schedule of charges for the services provided by the Customs Cargo Service Provider in relation to the imported goods or export goods in the customs area. Clearly, therefore, an importer or exporter availing the services of the Customs Cargo Service Provider is aware, in advance, of....
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....rs, except to the extent of Regulation 6(1)(l), which prohibits charging of rent or demurrage by the Customs Cargo Service provider on goods which are seized, detained or confiscated. All that the HCCAR otherwise require is that the schedule of charges, for the service provided by the Customs Cargo Service provider, be displayed prominently on its website. 36. With this background, we proceed to examine the claims of the petitioners, predicated as they are on the executive instructions issued by the MOS, DGS, CBIC and Commissioners of Customs. In the process, we also intend to deal with the rival contentions advanced before us, relating to these instructions, so as to avoid repetition. 37. Orders issued by the MOS 37.1 The petitioners rely on the Orders dated 31st March, 2020 and 21st April, 2020 issued by the MOS. Both the Orders expressly state that they have been issued under Section 111 of the Major Port Trusts Act. 37.2 The Orders dated 31st March, 2020 and 21st April, 2020 both purports to issue "directions" to "Major Ports". Section 111 of the Major Port Trusts Act does not, in terms, empower the Government to issue directions to the Major Port per se. Directions....
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....ort Trusts Act. 37.6 The powers and authority conferred on the Board and the TAMP by the Major Port Trusts Act do not extend to controlling or regularising charging of penal charges by CFSs, ICDs or shipping lines from exporters or importers. Section 48 of the Major Port Trusts Act^12 empowers the TAMP to, by notification, frame a scale of rates, and to stipulate conditions relating to providing of services by any person authorised under Section 42 or in relation to the port or port approaches including "wharfage, storage or demurrage of goods on any such place" and "any other service in respect of vessels, passenger or goods". These rates, however, may be framed, by the TAMP, only in respect of the services to be performed "by a Board or any other person authorised under Section 42". The Board is empowered, by Section 42(1)(a), to "land, ship or transship passengers and goods between vessels in the Port and the wharves, piers, quays or docks belonging to or in the possession of the Board" and, by Section 42 (1)(b), to "receive, remove, shift, transport, store or deliver goods brought within the Board's premises". In either case, the movement of the goods, or the storage thereof....
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....rusts Act. We may refer, in this context, to the following passages from the written submissions of the Ministry of Shipping: "6. Coming to the Inland Container Depots (ICDs) and Container Freight Stations (CFS), which are custom bonded in-transit facilities, (the only difference being that a Container Freight Station is mostly located near the Port, while an Inland Container Depot is located in the hinter land). The tariff for the various services provided by the CFSs/ICDs are charged as per the private arrangement between them and their customers. Respondents No.3 to 5 are neither privy to the terms the private contract executed by the CFS and/or ICDs with Customers nor can regulate the tariff rates that are charged by the CFS. In fact, save and except, single CFS facility and operator located at Kandla Port, Respondents 3-5 do not have any control or supervision over activities or practices or cost structures of the CFS or ICD service providers. It is pertinent to mention that as per information available, none of the ICDs in India are operating or utilizing land that is belonging to any Major Port. Also, only a handful of CFS operators are situated within port....
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....s, whether in the name of ground rent, demurrage or detention charges, by ICDs, CFSs or shipping lines. 37.11 A conjoint reading of para 3(iii) and 10 of the MOS Circular dated 21st April, 2020 would seem to indicate that the Major Ports have been directed to ensure non-recovery of penal charges, demurrage and detention charges on any port user including importers and exporters, CFSs, ICDs and shipping lines. This circular, has, however, been expressly issued under Section 111 of the Major Port Trusts Act. We have already seen that Section 111 empowers the Central Government to issue directives only to the Board or to the TAMP. The direction for non-recovery of penal charges, by ICDs, CFSs and shipping lines from the importers or exporters obviously has no link with the TAMP, as the authority of the TAMP, under the Major Port Trusts Act, extends only to fixation of the tariff and not to regulation of collection of charges in accordance therewith. 37.12 We have also observed hereinabove that the Board, too, is not invested by the Major Port Trusts Act, to regulate, much less interdict, the levy, recovery and collection of charges by the CFSs, ICDs or shipping lines from the im....
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.... or webpage of the CFS or ICD. Save and except in the cases of goods which are detained, seized or confiscated (which may attract Regulation 6(1)(l) of the HCCAR), there is no other statutory control, in any parliamentary enactment or subordinate legislation, on the levying, charging or collection of charges, penal or otherwise, by CFSs or ICDs from importers or exporters. There is no other statutory control, in any Parliamentary enactment or subordinate legislation, on the levy, charging or collection of charges, penal of otherwise, by CFSs or ICDs, from importers or exporters. No provision, for regulating such levy and collection is to be found in the Major Port Trusts Act, the Merchant Shipping Act or the Customs Act (including the HCCAR). The direction to the "Port" to ensure implementation of the Circular dated 21st April, 2020 of the MOS, as contained in para 10 of the Circular was, therefore, abortive and ineffective ab initio. The port could not have ensured such implementation, for the simple reason that the levying and collection of charges by the concessionaires from the importers or exporters are not regulated by the port, i.e. by the Board of Trustees of the Port or by....
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....no legal leg to stand on. The order which is ultra vires is a nullity, utterly without existence or effect in law." (Emphasis supplied) In the context of a decree passed without jurisdiction, the Supreme Court held, in Ajudh Raj v. Moti 1991 AIR SC 1600, that "if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, nonexistent in the eye of law and it is not necessary to set it aside". 37.17 The mere fact that the respondents might not have challenged the Circular dated 21st April, 2020 issued by the MOS cannot, therefore, maintain a prayer for a mandamus, to compel compliance with the Circular, by authorities who are not bound to so comply. 37.18 Mr. Sibal also sought to contend that the orders of the MOS were valid if they were to be treated as having been issued under the Disaster Management Act. This, however, appears us to be an argument of desperation. It is clear that the Circulars dated 31st March, 2020 and 21st April, 2020 of the MOS, have not been issued under the DMA. The MOS is itself on affidavit, vouchsafing this fact. It is not possible, therefore, for a Court, dealing with enforcement of a Circular under the Major ....
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....itizen. There is, thus viewed, clearly no "causal relationship" between the charging of demurrage, detention charges, or ground rent, by the ICDs, CFSs or shipping lines from the importers or exporters, and the State, i.e. the Government, even if the tariff charged were required to be preapproved, or even framed (in the cases of those few CFSs to which Section 48 of the Major Port Trusts Act applied) by the Customs authorities, or the TAMP. Detention charges, or ground rent, were not levied or collected on account of any statutory compulsion, but because of the occupation, by the goods of the customer, of the premises of the CFS or ICD - and, in the case of shipping lines, because of the delay in returning the empty containers. The amounts charged by the ICDs, CFSs or shipping lines from the importers/exporters was in the nature of recompense for storage of the goods (in the case of ICDs and CFSs) and the tangible or intangible losses suffered as a result of delay in return of empty containers (in the case of shipping lines). These were matters between the ICDs/CFSs, and shipping lines, and the concerned importers/exporters and was, therefore, their "prerogative", within the meanin....
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...."issued comprehensive directions to the Major ports to remit penal charges, demurrages, detention charges, dwell time charges, anchorage charges, penal berth hire charges, performance -related penalties, etc. levied on the Port users including the shipping lines". In view thereof, while continuing the applicability of its earlier Order No 07 of 2020 and 08 of 2020, the DGS proceeded to record that it was "now decided, that for the second lockdown period, the shipping companies or carriers (and their agents by whatever name called) shall not charge, levy or recover any penal charges, demurrage, ground rent, storage charges in the Port, detention charges, dwell time charges, additional anchorage charges, penal berth hire charges, vessel demurrage or any performance related penalties on cargo owners/consignees of non-containerised cargo (i.e. bulk, brake bulk and liquid cargo) whether LCL or not for the period from 15th April, 2020 to 3rd May, 2020 (both days inclusive), due to delay in berthing, loading/unloading operations or evacuation/arrival of cargo". These directions, however, apply only to non-containerized cargo. That apart, unlike the Order issued by the MOS, Order No 11 of ....
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....ions, as may be exercised under the Merchant Shipping Act by the Central Government, and to authorise any other officer or officers to exercise such functions. Mr. Sibal has been unable to draw attention to any provision in the Merchant Shipping Act, which entitles the Central Government to interdict shipping lines from charging penal detention charges from their customers. The written submissions, filed by the petitioners, too, while citing Section 7 of the Merchant Shipping Act, do not draw attention to any such provision. We have scanned the Merchant Shipping Act threadbare, and find ourselves in a cul de sac. No such provision has come to our notice. 38.5 We are constrained, therefore, to hold that no directive, restraining shipping lines from charging penal detention charges from their customers for failing to return containers in time, could have been issued by any authority, including the MOS and the DGS. A juxtaposed reading of paras 7 and 8 of Order No 11 of 2020, of the DGS, indicates, prima facie, that the DGS also thinks so. 38.6 Mr. Sibal chose, even in the case of the Orders issued by the DGS, to contend that they were issued under the Disaster Management Act an....
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.... in detail, earlier in this judgement. We are unable to sustain the submission of Mr. Sibal. CFSs and ICDs are notified as "customs areas", and as "extensions" of the Port, for a specific purpose, viz., to permit unloading and loading of goods. If at all, therefore, the situation may be analogised to the creation of a deeming fiction by the legislature for a particular purpose. In such a case, the consequence of creation of the deeming fiction cannot extend beyond the purpose for which it was created. Refer Indore Development Authority v. Manoharlal, (2020) 8 SCC 129; State of W.B. v. Sadan K. Bormal, (2004) 6 SCC We find ourselves unable to hold, as Mr. Sibal would exhort us to do, that, merely because, for this limited purpose, CFSs and ICDs are to be treated as customs areas and notional extensions of the Port, they would, ipso facto, be mandatorily subject to every executive direction issued by the CBIC. 39.4 CFSs and ICDs are not creatures of the Customs Act, as the petitioners would seek to contend. They are, essentially, in the nature of godown facilities - whether privately owned or managed by governmental agencies such as the Central Warehousing Corporation or the Conta....
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....usly applies only to the extent that the Customs Cargo Services Provider are subject to control by the CBIC, and not beyond that. Mr. Sibal sought to contend that, by virtue of Regulation 6(1)(q), all instructions issued by Customs authorities were binding on CFSs and ICDs. 39.7 We are unable to agree. Regulation 6(1)(q) obligates CFSs and ICDs (as Customs Cargo Services Provider) only to abide by the provisions of the Customs Act and the Rules, Regulations, Notifications and Orders issued thereunder. Instructions issued by Customs Commissioners cannot be treated as "Rules, Regulations, Notifications" or "Orders" issued under the Customs Act. They are in the nature of administrative directions, issued by Commissioners in exercise of the supervisory jurisdiction over ICDs are CFSs. Moreover, in the present case, the communications by the Commissioner of Customs, JNCH, to ICDs/CFSs within his jurisdiction merely purported to direct compliance with the Circular issued by the CBIC. 39.8 Assuming, arguendo, that the CBIC were to issue directives, for compliance, to the Customs Cargo Services Provider, which they are not empowered to issue, such directives cannot be enforced, least....
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....Customs Subject : Designation of customs clearance facilities as ICDs or CFSs - Clarification -reg. Sir/Madam, It has been brought to the notice of the Board that in certain cases, the distinction between the functioning of Inland Container Depots (ICDs) and Container Freight Stations (CFSs) has not been properly appreciated by ICD/CFS operators, and this has been resulting in noncompliance of/or deficiency in adherence to the procedures prescribed for import/export of goods, provisions of the Customs Act, 1962, and the rules and regulations made thereunder. Certain field formations have also sought clarification in a few such cases. 2.1 While guidelines broadly specifying the distinction between ICDs and CFSs have been included in the Customs Manual issued by the Board in September, 2001, the legal provisions are indicated below to further clarify the matter. 2.2 Under Section 7 of the Customs Act, 1962 (hereinafter referred to as the said Act), Board may appoint the ports, airports or the Land Customs Stations (LCS) as 'customs ports or customs airports or land customs stations', respectively, for the purpose of unloading of imported goods a....
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....ted at par with the other. ICDs are thus self sufficient customs stations and for all practical purposes a Custom House in the same way as any port or airport. On the other hand, a Container Freight Station is only a custom area located in the jurisdiction of a Commissioner of Customs exercising control over a specified custom port, airport, LCS/ICD. Container Freight Station by itself cannot have an independent existence; it has to be linked to a customs station within the jurisdiction of the Commissioner of Customs. It is an extension of a customs station set up with the main objective of decongesting the ports. It is a place where only a part of the customs process mainly the examination of goods is normally carried out by Customs and goods are stuffed into containers and de-stuffed therefrom and aggregation/segregation also takes place at such places. Given the aforesaid status of CFSs being extension of port/airport/ICD/LCS, Custom's function relating to processing of manifest, import/export declarations that are filed by the carrier/Importer or exporter and assessment of bill of entry/shipping bill are performed in the Custom House/Custom Office that exercises jurisdiction ov....
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.... requirements specified in the Handling of Cargo in Customs Areas Regulations, 2009 while forwarding the comments to the Board for consideration during Inter Ministerial Committee meeting. 9. In view of the above, the concerned jurisdictional Commissioners of Customs who are competent authority for regulation of ICDs/CFSs are requested to verify the existing position in various ICDs/CFSs under their jurisdiction and inform the Board about the deviations, difficulties, if any, so that the matter may be taken up for appropriate action by the Board." (Italics and underscoring supplied) 39.13 Superficially read, this Circular may appear to bolster the submissions of the petitioners; however, in our opinion, it has to be understood in context. Contextual and purposive, rather than textual, interpretation, it is settled by the Supreme Court in Shailesh Dhairyawan v. Mohan Balkrishna Lulla (2016) 3 SCC 619 and Richa Mishra v. State of Chhatisgarh (2016) 4 SCC 179, is the new "golden rule". This principle would apply with additional force to executive instructions which, even otherwise, are required to be understood in a pragmatic and purposive manner. So viewed, the intent ....
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....FSs and ICDs to the control of the CBIC, even in the matter of recovery of detention charges or ground rent from importers or exporters, for storage of goods in their premises. The aspect of the charges recovered, by ICDs of CFSs, from importers or exporters was, clearly, not even remotely in the contemplation of the authorities while issuing the aforesaid Circular dated 8th June, 2009. The Circular has been issued for a very specific purpose and to clarify certain specific aspects relating to the functioning of ICDs and CFSs and the distinction between the two and cannot, therefore, be used as a ground to seek waiver, or exception, from payment of penal charges to ICDs, CFSs or shipping lines, beyond the "free periods". Nor can this Circular be used to support the contention that all instructions issued by the CBIC are, ipso facto, binding on ICDs and CFSs. 40. Instructions issued by the Commissioner of Customs to ICDs/CFSs 40.1 The petitioner has also placed on record, and relied upon, communications, chiefly by certain Commissioners, to ICDs and CFSs under their jurisdiction. To our mind, we are not required to dilate on these communications, as they are, even on their ver....
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.... during the period of lockdown, at times availing the discounts provided by the ICDs and CFSs. This indicates, to our mind, that there was no inherent impossibility, even during the lockdown period, in securing the release of the imported goods. The fact that some importers did manage to secure such release indicates that, if other importers were unable to do so, the reason for such inability would have to be assessed on a case-to-case basis. Apart from the fact that the ICDs and CFSs themselves had, in place, a mechanism for such aggrieved importers and exporters to approach them, this exercise cannot be conducted by a writ court, exercising jurisdiction under Article 226 of the Constitution of India. Each case would depend on its own facts, and disputed issues of fact are bound to arise. Even for this reason, it is not possible for this Court to accede to the petitioners' request to, across the board, direct waiver or remission of the penal charges, levied by ICDs and CFSs for continuing to store imported or exported goods beyond the permissible "free period". 45. Yet another submission, advanced by learned Senior Counsel for the CFSs and ICDs, which finds favour with us, is t....
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.... the Respondent No. 5 to 11 to waive all charges pertaining to ground rent, demurrage, container detention charges or any other ancillary charges imposed during the lockdown period and release the containers and/or its contents to the Petitioner in view of the advisories and orders issued time to time by respondent No. 1 to 4; (c) Pending admission, hearing and final disposal of this petition, direct the Respondent No. 5 to 11 to release the containers/goods belonging to the Petitioner lying with them on payment of usual charges as per the advisories and orders; (d) To pass any other and further orders as may be deemed fit and proper; (e) To provide for the costs of this petition." 50. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P.(C) 3029/2020 51. The prayer clause in the writ petition reads thus: "It is therefore most respectfully prayed that this Hon'ble Court may kindly be pleased to: a) Issue an appropriate writ, order or direction in the nature of Mandamus thereby issuing directions to the re....
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....ture of mandamus thereby directing the Respondent nos. 6 to 23 to refund the charges already collected pertaining to ground rent, demurrage, container detention charges or any other ancillary charges imposed during the lockdown period; d) award exemplary costs in favour of the Petitioner and against the Respondents; e) Issue any other appropriate writ or directions as may be deemed fit and proper by this Hon'ble Court in the facts and circumstances of the case." 54. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P. (C) 3195/2020 55. The prayer clause in the writ petition reads thus: "In the facts and circumstances of the present case, it is prayed that this Hon'ble Court may be pleased to: a) Issue a Writ of Mandamus under Article 226 of the Constitution of India or any other appropriate writ, order or direction to the Respondents No. 1, 2, 3 to forthwith ensure the compliance of the Order No. PD14033/4/2020-PD VII dated 21.04.2020 & notification F.No.394/46/2020-Cus (AS) dated 23.04.2020 such that no detentio....
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.... package for the industry and directions to the banks and Non Banking Financial Corporations to take a lenient and proactive policy and provide adequate financial support to the members of the petitioner association. 58. This prayer is disposed of with a direction to the Union of India to take a decision on the petitioners' representation and communicate the decision to the petitioner as expeditiously as possible. 59. It is made clear that this Court has not expressed any opinion on the merits of the claims contained in the representation. 60. The writ petition stands disposed of accordingly. W.P. (C) 3561/2020 61. The prayer clause in the writ petition reads thus: "It is prayed this Hon'ble court may be pleased: (i) For the issuance of a writ in the nature of mandamus directing the Respondents to waive off and reimbursement all charges of demurrage, ground rent and others on containers lying for customs clearance at ICD Loni and others ICD for the period lockdown and further sixty days after lockdown over in the wake of COVID-19 epidemic. (ii) To pass such other orders and further orders as may be deemed necessary on the facts and in the c....
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..... 65. Prayer (f) does not survive for consideration. No occasion arises to quash and set aside the advisories/orders issued by the DGS, in view of the grant of prayers (a) to (e), as we have already held that they do not entitle the petitioners (in the other writ petitions) to the reliefs they seek. 66. Prayer (g) is in the nature of an interim prayer which does not survive for consideration and is disposed of as such. 67. The writ petition stands disposed of with the aforesaid terms with no orders as to costs. W.P. (C ) 4184/2020 68. The prayer clause in the writ petition reads thus: "In the facts and circumstances above mentioned the Petitioner most respectfully prays that this Hon'ble Court may graciously be pleased to: a. Issue a writ of mandamus, or any appropriate writ, order or direction to Respondent Nos. 1 to 4 and/or other appropriate authorities directing them to issue necessary directions thereby extending the directions in orders/circulars mentioned in paragraphs 7 to 9 of the Petition for the entire period of the lockdown (as may be extended from time to time) and further recovery period of 30 days; b. Declare that the dir....
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.... as were applicable to respective importers as on March 21, 2020 with regards to such charges which are not penal in nature; and g. Pass such other further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the instant case." 69. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P. (C) 4185/2020 70. The prayer clause in the writ petition reads thus: "In the facts and circumstances above mentioned the Petitioner most respectfully prays that this Hon'ble Court may graciously be pleased to: a. Issue a writ of mandamus, or any appropriate writ, order or direction to Respondent Nos. 1 to 4 and/or other appropriate authorities directing them to issue necessary directions thereby extending the directions in orders/circulars mentioned in paragraphs 7 to 9 of the Petition for the entire period, of the lockdown (as may be extended from time to time) and further recovery period of 30 days; b. Declare that the directions issued in circulars/ orders mentioned in Paragraphs 7 to 9 of the P....
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.... such charges which are not penal in nature. g. Pass such other further orders(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the instant case." 71. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P. (C) 4186/2020 72. The prayer clause in the writ petition reads thus: "In the facts and circumstances above mentioned the Petitioner most respectfully prays that this Hon'ble Court may graciously be pleased to: a. Issue a writ of mandamus, of any appropriate writ, order or direction to Respondent Nos. 1 to 4 and/or other appropriate authorities directing them to issue necessary directions thereby extending the directions in orders/circulars mentioned in the Petition for the entire period of the lockdown (as, may be extended from time to time) and further recovery period of 30 days; b. Declare that the directions issued in circulars/ orders mentioned in Paragraphs 7 to 9 of the Petition and any such other circulars and orders- issued by government and public authorities, are mandatory ....
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....) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the instant case." 73. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P. (C) 4349/2020 74. The prayer clause in the writ petition reads thus; "It is therefore most respectfully prayed that this Hon'ble Court may kindly be pleased to: (a) Issue an appropriate writ, order or direction in the nature of Mandamus Writ Petition Under Articles 226 of the Constitution of India Seeking a Writ, Order or Direction in the nature of Mandamus Directing the Respondent No. 1, 2, 3, 4, 5 to ensure compliance by Respondent no. 6 qua non charging of container detention charges, extending of remaining free days after the lockdown period as stipulated under the contract and waiver of ground rent by Respondent no.7 as the same was caused by Respondent no.6.; (b) Issue an appropriate writ, order or direction thereby directing the Respondent nos. 1, 2, 3, 4, 5 to initiate strict action against Respondent no.6, 7 for wilfully disobeying the orders passed by them. (c)....
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....ondents CFS for disobeying their Orders and Directions; (ii) Issue a writ in the nature of Mandamus or any other appropriate writ or an order directing Respondents not to waive demurrage charges in the wake of the pandemic COVID-19; (iii) Direct refund of Rs. 9,11,802/- unjustly recovered as Demurrage from Petitioner by the Respondent No. 4; (iv) Award exemplary costs in favour of the petitioner and against the respondents. (v) Pass such other and further orders as this Hon'ble Court may deem to be fit and proper under the facts and circumstances of the present case." 79. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P.(C) 5675/2020 80. The prayer clause in the writ petition reads thus: "In the facts and circumstances of the present case, it is prayed that this Hon'ble Court may be pleased to: (a) Issue a Writ of Mandamus under Article 226 of the Constitution of India or any other appropriate writ, order or direction to the Respondents No. 1, 4, and 5 to forthwith ensure the compliance of the Or....
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....ated 23rd April, 2020 issued by the Ministry of Finance are complied; (c) Issue a Writ of and/or in the nature of Certiorari do issue directing the Respondent authorities, particularly the Respondent Nos. 2 and 3 and each one of them to forthwith certify and transmit to this Hon'ble Court all the records and documents pertaining to this instant case so that conscionable justice may be administered by passing necessary orders and issuing necessary directions in favour of the Petitioner; (d) Rule NISI in terms of prayers above and in the event no cause or insufficient cause is shown, to make the said Rule absolute; (e) Costs of and incidental to this Petition and applications be borne by the Respondents; and pass any such other and further orders or directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 83. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P.(C) 8406/2020 84. The prayer clause in the writ petition reads thus: "In view of the submissions made above, it is t....
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....suitable relief may kindly be granted in favour of the petitioner." 87. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P.(C) 9067/2020 88. The prayer clause in the writ petition reads thus: "For these reasons and other reasons that may be urged at the time of hearing, it is most humbly prayed that this Hon'ble Court may be pleased to: (i) Issue a writ of mandamus or any other appropriate writ, direction or order commanding the 1st and 2nd Respondents to ensure strict compliance of Order No. PD-14033/4/2020-PD-VII dated 21.04.2020 (Ext P5) and DSG Order No. 11 of 2020 dated 22.04.2020 (Ext P6). (ii) Extend the validity of DSG Order No. 11 of 2020 dated 22.04.2020 (Ext P6) till 30.06.2020 or till such date that this Hon'ble Court deems fit and proper in the peculiar facts and circumstances of the case; (iii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to permit the Petitioner to clear the imports covered by Ext P-l(b) Bill of Lading by extending the benef....
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....s Hon'ble Court deems fit and proper in the peculiar facts and circumstances of the case; (iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to permit the Petitioner to clear the imports covered by Ext P-1 series Bills of Lading by extending the benefit of Ext P6 and to reimburse any amounts already paid thereto; (iv) issue any other appropriate writ, direction or order which this Hon'ble Court may deem fit and just in the peculiar circumstances of this case." 93. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P. (C) 9070/2020 94. The prayer clause in the writ petition reads thus: "For the reasons stated in the accompanying affidavit it is most humbly prayed that this Hon'ble Court may be pleased to direct the respondents 1 & 2 to forebear the 3rd Respondent from claiming any demurrages till 30th June 2020 for releasing the consignment of writ petitioner relating to Bill No. AEV0156559 dated 13th June, 2020 by implementing the government order passed by Union of ....
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....sposal of the present petition, your Lordships may be pleased to direct Respondent Nos. 4 to 8 to forthwith payback/ return to the Petitioner the amounts charged and recovered by them as ground rent charges, container detention/ demurrage charges and taxes thereon on the conditions that may be deemed fit by this Hon'ble Court; (D) Pending hearing and final disposal of the present petition, the Respondent No. 2 may be directed to ensure release and clearance of the Petitioners goods (as listed in Annexure K) from the custody of Respondent Nos 4 and 5 , and Respondent Nos 4 and 5 may be directed to release and allow clearance of such goods for the Petitioners without payment and recovery of any ground rent charges and Taxes thereon to the period of lockdown; (E) That on ex-parte ad-interim Order in terms of Para (D) above may be please be granted; (F) That any other relief that maybe deemed fit in the facts and circumstances of this case may also be granted in the interest of justice." 97. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to cos....
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....g of such goods." 2. "7. Appointment of customs ports, airports, etc. - (1) The Board may, by notification in the Official Gazette, appoint - (a) the ports and airports which alone shall be customs ports or customs airports for the unloading of imported goods and the loading of export goods or any class of such goods; (aa) the places which alone shall be inland container depots or air freight stations for the unloading of imported goods and the loading of export goods or any class of such goods; (b) the places which alone shall be land customs stations for the clearance of goods imported or to be exported by land or inland water or any class of such goods; (c) the routes by which alone goods or any class of goods specified in the notification may pass by land or inland water into or out of India, or to or from any land Customs station from or to any land frontier; (d) the ports which alone shall be coastal ports for the carrying on of trade in coastal goods or any class of such goods with all or any specified ports in India. (e) the post offices which alone shall be foreign post offices for the clearance of import....
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....r or its severity or consequences; (iii) capacity-building; (iv) preparedness to deal with any disaster; (v) prompt response to any threatening disaster situation or disaster; (vi) assessing the severity or magnitude of effects of any disaster; (vii) evacuation, rescue and relief; (viii) rehabilitation and reconstruction; ***** (i) "mitigation" means measures aimed at reducing the risk, impact or effects of a disaster or threatening disaster situation; (j) "National Authority" means the National Disaster Management Authority established under sub-section (1) of section 3; ***** (m) "preparedness" means the state of readiness to deal with a threatening disaster situation or disaster and the effects thereof; ***** (q) "State Authority" means the State Disaster Management Authority established under sub- section (1) of Section 14 and includes the Disaster Management Authority for the Union Territory constituted under that section;" Section 3(1) and (2) of the Disaster Management Act read thus: "3. Establishment of National Disaster Management Authority. - (1) W....
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....rity and every Board shall, in the discharge of its functions under this Act be bound by such directions on questions of policy as the Central Government may give in writing from time to time: Provided that the Authority or the Board, as the case may be, shall be given Opportunity to express its views before any direction given under this sub- section. (2) The decision of the Central Government whether a question is one of policy or not shall be final." (Emphasis supplied) The definition of "Board", as contained in the Major Ports Trust Act, already stands reproduced (supra). "Authority" is defined in clause (aa) of Section 2 as meaning "the Tariff Authority for Major Ports constituted under Section 47-A." 9. "7. Director General of Shipping. - (1) The Central Government may, by notification in the Official Gazette, appoint a person to be the Director-General of Shipping for the purpose of exercising or discharging the powers, authority or duties conferred or imposed upon the Director-General by or under this Act. (2) The Central Government may, by general or special order, direct that any power, authority or jurisdiction exercisable by it under or ....