TaxTMI 
TaxTMI 
2021 (8) TMI 617
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....ooja 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. Devesh Dubey, Adv. for R-1. Ms. Anj....
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....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 with which, too, we need not concern ourselves.....
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.... 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 Act2. 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 (29) of Section 2, as meaning "any place appointed under clause (b) of ....
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....ome 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 Management Act, 20053 ("the Disaster Management Act", hereafter). The NDMA directed....
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....nd (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 record, a communication, dated 27th March, 2020, addressed by the Commissioner of Customs (General), Jawahar Lal Nehru Custom House, Nhava Sheva, to the Container Freight Station Association of India (CFSAI), in the wake of ....
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....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. During this period the shipping lines are also advised not to impose any new or additional charge. This decision is purely a onetime measure to deal with the present disruptions caused by spread of COVID-19 epidemic." On its plain terms, the afore-extracted order of the DGS was only "advisory" in ....
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....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, 19637; each Major Port shall ensure that no penalties, demurrage, charges, fee, rentals are levied by the Major ports on any port user (traders, Shipping lines, concessionaires, licensees etc.) for any delay in berthing, loading/unloading operations or evacuation/arrival of cargo caused by the reasons attributable to lockdown measures from 22nd March to 14th April, 2020. (ii) Therefore, each Major Port shall exempt or remit demurrage, ground rent over and above the....
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....tain 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 negotiated contractual terms. During this period the shipping companies (and their agents) are also advised not to impose any new or additional charge. This decision is a onetime measure to factor-in the present situation arising out of the COVID-19 pandemic." (Emphasis supplied) This, again, was, therefore, only an advisory. 15. The Commissioner of Customs, JNCH, Nhava Sheva issued, on 9th April, 2020....
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.... 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 the Commissioner of Customs, Patparganj, on 10th April, 2020, the Commissioner of Customs, Mundra on 12th April, 2020 and the Commissioner of Customs, Chennai IV, on 15th April, 2020. 18. On 21st April, 2020, a communication was addressed by the MOS to Chairpersons and CMDs of all Major Ports, paras 2, 3, 10, 11 and 12 of which read thus: "To Chairperson & CMD All Major Ports Sub: Issues at Major Ports relating to: 1) Exemptions/Remi....
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....mited." 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 including the shipping lines. 5. Now, therefore to maintain the continuity, the DGS Order No. 07 of 2020 dated 29.03.2020 relating to noncharging of container detention charges on import and export shipments will continue to remain in force from 22nd March, 2020 to 3rd May, 2020 (both days inclusive). 6. Further, the exemptions under the DGS Order No. 08 of 2020 dated 31.03.2020 were in force from 22nd March, 2020 to 14th April, 2020 (both days inclusive), over and above free time arrangements that is currently agreed and availed as part of any negotiated ....
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....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 period on cargo owners/consignees of non-containerized cargo (i.e. both brake bulk and liquid cargo) whether LCL or not for the lock down period due to delay in evacuation of cargo caused by reasons attributable to lockdown measures. Ministry of shipping has again in its order vide No. PD-14033/4/2020-PD VII dated 21st April, 2020 (copy enclosed), directed inter alia that no penal charges demurrages, detention charges, dwell time charges, etc. shall be levied and ports shall ensure strict implementation by port users including ICDs, CFSs, Shipping Lines etc. 3. Accordingly, the aforementioned orders issued by the Ministry of Shipping and Director General ....
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.... 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. On 1st May, 2020, a meeting was convened, under the chairmanship of the Director General of Shipping, to review the implementation of the DGS Order No. 11 of 2020 supra. Representatives of the Container Shipping Line Association and the CFSAI were also co-opted in the meeting. The minutes of the meeting concluded with the decision, of the Director General Shipping, that "the DGS order number 7, 8 and 11 will be implemented uniformly by everyone so that the adverse impact of lockdown on EXIM trade is minimised". 24. On 8th May, 2020, the Commissioner of Customs, JNCH, again wrote to the CFSs, in the wake of grievance emails from importers regarding non-compliance,....
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...., 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 in continuing to function, with strict protocol, even during the period of lockdown. The second Advisory, dated 18th May, 2020, was essentially in the nature of a request to the Trade to appreciate the disruptions caused in functioning of CFSs, especially in the wake of workers' exodus to their hometowns following lockdown restrictions. 27. Our task, in these petitions, is to examine whether the above noted official Orders, Circulars and Advisories entitle the petitioners to a mandamus to CFSs, ICDs and shipping lines not to charge any penal charges from the petitioners, by whatever name called, for the delay in clearing the petitioners' containers from the ICDs and CFSs and retu....
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....e 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. Having heard learned counsel appearing on behalf of the respective petitioners and the reliefs sought in the respective petitions, the reliefs/submissions on behalf of the petitioners can be summarized as under: i) a complete waiver of interest or interest on interest during the moratorium period; ii) there shall be sector-wise relief packages to be offered by the Union of India and/or the RBI and/or the Lenders; iii) moratorium to be permitted for all accounts instead of being at the discretion of the Lenders; iv) extension of moratorium beyond 31.08.2020; v) whatever the relief packages are offered by the Central Government and/or the RBI and/or the Lenders are not sufficient looking to....
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.... 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 expressed. What is the best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void..." 125. This Court in the case of State of M.P. v Nandlal Jaiswal, (1986) 4 SCC 566 has observed that the Government, as laid down in Permian Basin Area Rate Cases, 20 L Ed (2d) 312, is entitled to make pragmatic adjustments which may be called for by particular circumstances. The court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The court can interfere only if the policy decision is patently arbitrary, discriminatory ....
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....t 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 and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. 233. At the same time, in exercise of its enormous power the court should not be called upon to or undertake governmental duties or functions. The courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the Constitution casts on it a great obligation as the sentinel to defend t....
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....nowledge 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 course of action instead of another is not a matter of concern in judicial review and the court is not the appropriate forum for such investigation. The policy decision must be left to the government as it alone can adopt which policy should be adopted after considering of the points from different angles. In assessing the propriety of the decision of the Government the court cannot interfere even if a second view is possible from that of the government. 136. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. The scope of judicial review of the governmental policy is now well defined. The courts do not and cannot act as an appellate authority examining the correctness, stability and appropriateness of a policy, nor are the courts advisers to the executives on matters of policy which the executives are entitled to formulate. 137. Government has....
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....ate. 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 under Part III of the Constitution is absolute and it is to be within permissible reasonable restriction. This principal equally applies when there is any constraint on the health budget on account of financial stringencies. 140. It is the cardinal principle that it is not within the legitimate domain of the court to determine whether a particular policy decision can be served better by adopting any policy different from what has been laid down and to strike down as unreasonable merely on the ground that the policy enunciated does not meet with the approval of the court in regard to its efficaciousness for implementation of the object and purpose of such policy decision. 141. With the limited scope of judicial review on the policy decisions affecting the economy and/or it might have financial implications on the economy of the country, the reliefs and submissions stated hereinabove are required to be considered. Whether th....
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....tly 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 Article 32 of the Constitution of India and the question of such financial stress management measures requires examination and consideration of several financial parameters and its impact. 144. Now so far as the submission on behalf of the petitioners that as per the notifications/circulars/reliefs offered by the RBI and/or Finance Department of the Union of India ultimately it is left to the bankers and it should not have been left to the bankers and the Government/RBI must intervene and provide further reliefs is concerned, at the outset, it is required to be noted that as such the bankers are commercial entities and since the customer profile, organizational structure and spread of each lending institution is widely different from others, each lending institution is best placed to assess the requirements of its customers and therefore, the discretion was left to the lending institutions concerned. Any borrowing arrangement is a commercial contract betwee....
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.... 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 were available to eligible borrowers when circular dated 6.8.2020 was notified providing for a separate resolution mechanism for Covid-19 related stressed assets. Therefore, sufficient time was given to invoke the resolution mechanism. 149. Therefore, the petitioners shall not be entitled to any 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 which, as observed hereinabove, can be said to be in the realm of the economic policy decisions and for the reasons stated hereinabove and as observed hereinabove granting of any such reliefs would have a far-reaching financial implication on the economy of t....
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....pect to loans up to Rs. 2 crores only. Even otherwise, it is required to be noted that the scheme dated 23.10.2020 granting relief/benefit of waiver of compound interest/interest on interest contains eligibility criteria and it provides that any borrower whose aggregate of all facilities with lending institution is more than Rs. 2 crores (sanctioned limit or outstanding amount) will not be eligible for ex-gratia payment under the said scheme. Therefore, if the total exposure of the loan at the grant of the sanction is more than Rs. 2 crores, the borrower will be ineligible irrespective of the actual outstanding. For Example, if the borrower has been sanctioned a loan of Rs. 5 crores and has availed of the same, even though he might have repaid substantially bringing down the principal amount of less than Rs. 2 crores as on 29.02.2020, but because of the sanction of the loan amount of more than Rs. 2 crores, he will be ineligible. It also further provides that the outstanding amount should not be exceeded to Rs. 2 crores and for this purpose aggregate of all facilities with the lending institution will be reckoned. Therefore, if a borrower, for example, MSME Category has availed and....
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.... petitions are partly allowed to the aforesaid extent only and as observed for the reliefs, the petitions are dismissed. Interim relief granted earlier not to declare the accounts of respective borrowers as NPA stands vacated. However, there shall be no order as to costs." In acceding to the prayer of the petitioners, before it, for waiver of interest on interest/compound interest/penal interest, and for extension of such benefit to all borrowers, the Supreme Court, clearly, did not proceed on the basis of a qualitative assessment that greater benefits were due to the petitioners than had been extended by the RBI on the Governmental authorities. Rather, it proceeded on the principle of discrimination and arbitrariness. It is important to notice this distinction. It is not as though the Supreme Court fashioned a benefice (metaphorically speaking) in favour of the petitioners before it, in excess of the beneficial dispensations already extended by the Governmental authorities. The Supreme Court, instead, proceeded on the premise that, while extending such beneficial dispensations, the Government could not act arbitrarily or in a manner which would discriminate between entities simil....
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....d set of appeals - with which we are more concerned - assailed executive orders passed by the State of Rajasthan on 9th April, 2020, 7th July, 2020 and 28th October, 2020, reducing the tuition fees chargeable by schools affiliated with the Central Board of Secondary Education by 30% and by schools affiliated with the Rajasthan Board of Secondary Education by 40%, and deferring collection of the reduced fees by the schools, in the wake of the lockdown imposed by the Government consequent on the COVID-19 pandemic. 30.2 The Supreme Court, in the first instance, upheld the 2016 Act, and rejected the challenge to its validity. 30.3 Apropos the second challenge, the State Government chose to defend the executive orders issued by it as within the jurisdiction vested in it by the Disaster Management Act. The Supreme Court rejected this defence in the following terms: "105. In the present case, we need not dilate on the factum as to whether the Director, Secondary Education could have issued such a policy document in exercise of executive power under Article 162 of the Constitution, which power exclusively vests in the State Government alone. The fact remains that the direction issued i....
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....tions (to school Management to collect reduced school fee for the concerned academic year). We have no hesitation in observing that the asservation of the State Government of existence of power to issue directions even in respect of economic aspects of legitimate subsisting contracts/transactions between two private parties, if accepted in respect of fee structure of private unaided schools, is fraught with undefined infinite risk and uncertainty for the State. For, applying the same logic the State Government may have to assuage similar concerns in respect of other contractual matters or transactions between two private individuals in every aspect of life which may have bearing on right to life guaranteed under the Constitution. That would not only open pandora's box, but also push the State Government to entertain demands including to grant subsidy, from different quarters and sections of the society in the name of mitigating measures making it financially impossible and unwieldy for the State and eventually burden the honest tax payers - who also deserve similar indulgence. Selective intervention of the State in response to such demands may also suffer from the vice of discr....
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....ervices, materials and provisions as noted in Section 2(p), and preparedness measures referred to in Section 2(m). It is not possible to countenance the persuasive argument of the respondents that expansive meaning be assigned to the provisions of the Act of 2005 so as to include power to reduce school fees of private unaided school albeit fixed under the Act of 2016 and which by law is to remain in force until academic year 2020-21. 113. As is noticed from the preamble of the Act of 2005, it is to provide for the effective management of disasters and for matters connected therewith or incidental thereto. It extends to the whole of India. The Act is to establish Statutory Committees at different level for carrying out the purposes for which the Act has been enacted. It is essentially for effective management of disasters and for matters connected therewith or incidental thereto. ***** 119. Having regard to the purport of the Act of 2005, it is unfathomable as to how the State Authorities established under the stated Act can arrogate unto themselves power to issue directions to private parties on economic aspects of legitimate subsisting contractual matters or transactions betw....
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....orters in the present case. Even in the absence of any written contract, it can hardly be gainsaid that the CFSs or ICDs and the importers are private parties. Any Governmental interference with commercial or economic aspects of matters between the CFSs or ICDs, and the importers, even under the Disaster Management Act, has, therefore, to be limited to the confines demarcated by para 106 of the decision in Indian School. As to whether the Office Orders and Circulars issued by the MOS, the DGS and the CBIC do, or not, we shall examine presently. 30.5 The Supreme Court has also clarified that benefits, under the Disaster Management Act, cannot be extended to one party at the cost of the other, so as to permit Paul to profit at the cost of Peter. One may legitimately, in our view, extend the principle to holding that, while putting, in place, ameliorative measures under the Disaster Management Act - or, for that matter, under the Epidemic Diseases Act - the Governmental authorities had to be circumspect and have to balance the interests of all stakeholders who would be affected, one way or the other, by such dispensations. It is not permissible, in short, for the Government to play R....
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....d (in para 119 of the report) that it was "unfathomable as to how the State Authorities established under the stated Act can arrogate unto themselves power to issue directions to private parties on economic aspects of legitimate subsisting contractual matters or transactions between them inter se". 30.7 At the cost of repetition, we deem it appropriate to reiterate that the proscription against trespass, by ameliorative measures taken under the Disaster Management Act by the Governmental authorities extends, as per the judgement in Indian School, not only to private "contractual matters", but also to economic and financial transactions between private parties inter se, with which the State has no direct causal connection. This, in fact, addresses one of the contentions advanced by the petitioners before us in their written submissions - though no serious submissions to that effect were made by Mr. Sibal at the Bar - that there were no express written contracts between the CFSs or ICDs and the petitioners. More on that, however, later. Relevant Statutes 31. The statutory enactments, within which the dispute in the present case peregrinates, are, essentially, the Disaster Manageme....
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....racts, under the Disaster Management Act, the Government "can provide for broad guidelines while recommending to give the reliefs". (ii) Any exhortation, seeking interference with such Governmental decisions under the Disaster Management Act has, however, to be examined within strictly well-defined parameters. The Court has to appreciate the practical problems faced by the Government which may, on occasion, require rough accommodation, at times illogical and at others unscientific. Courts should not easily criticise such decisions. Nor can such decisions be struck down on the ground that other, and better, alternatives are possible. Interference would be justified only if the decision is patently arbitrary, discriminatory or mala fide. These decisions are confined exclusively within the realm of policy, and the scope of judicial review thereof is, by necessity, extremely constricted. We may also note, in this context, the recent decision of the Supreme Court in Reepak Kansal v U.O.I., 2021 SCC OnLine SC 443, which specifically proscribes judicial interference with policy decisions, particularly in economic matters. Nor can the Court, in purported exercise of its power of judicial....
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....rve the interests of one class of persons who are affected by the disaster, at the expense of the other. There cannot be "selective intervention". (ix) "Mitigation", as an ameliorative measure under the Disaster Management Act, has to be aimed merely at reducing the risk, impact of the effect of the disaster or threatening disaster. In the guise of mitigation, the Disaster Management Authorities, or the Government, cannot issue directions in respect of economic aspects of legitimate subsisting contracts or transactions between two private individuals with which the State has no direct causal relationship, especially when the determination of compensation/cost is the prerogative of the supplier or manufacturer of the goods or provider of services. (x) The Disaster Management Act is not a panacea for all difficulties, much less difficulties which are not directly concerned with disaster management as such. 32.5 Beyond this, for the purposes of the controversy in issue, it is not necessary to discuss, further, the provisions of the Disaster Management Act. 33. The Major Port Trusts Act 33.1 The preamble to the Major Port Trusts Act states that it is "an Act to make provision fo....
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....), 48, 49, 49-B, 50, 50-A, 54 and 123-A confer powers on the TAMP. These provisions read as under: "42. Performance of services by Board or other person- (1) A Board shall have power to undertake the following services: - (a) landing, shipping or transhipping passengers and goods between vessels in the port and the wharves, piers, quays or docks belonging to or in the possession of the Board; (b) receiving, removing, shifting, transporting, storing or delivering goods brought within the Board's premises; (c) carrying passengers by rail or by other means within the limits of the port or port approaches, subject to such restrictions and conditions as the Central Government may think fit to impose; (d) receiving and delivering, transporting and booking and despatching goods originating in the vessels in the port and intended for carriage by the neighbouring railways, or vice versa, as a railway administration under the Indian Railways Act, 1890 (9 of 1890); (e) piloting, hauling, mooring, remooring, hooking, or measuring of vessels or any other service in respect of vessels; and (f) developing and providing, subject to the previous approval of the Central Governmen....
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....ks, vessels or appliances belonging to or provided by the Board." "49-B. Fixation of port-dues. - (1) The Authority shall from time to time, by notification in the Official Gazette, fix port-dues on vessels entering the port. (2) An order increasing or altering the fees for pilotage and certain other services or port-dues at every port shall not take effect until the expiration of thirty days from the day on which the order was published in the Official Gazette." "50. Consolidated rates for combination of services. - The Authority may, from time to time, by notification in the Official Gazette, frame a consolidated scale of rates for any combination of service specified in Section 48 or for any combination of such service or services with any user or permission to use any property belonging to or in the possession or occupation of the Board, as specified in Section 49 or the fees to be charged for pilotage, hauling, mooring, remooring, hooking, measuring and other services rendered to vessels as specified in Section 49-A or the port dues to be fixed on vessels entering the port and for the duration of such dues as specified in Section 49-B." "50-A. Port-due on vessels i....
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....under the Merchant Shipping Act. Section 7(2) empowers the Central Government to delegate any power, authority or jurisdiction exercisable by it under the Merchant Shipping Act to the DG or any other Officer, and Section 7(3) empowers the DG, with the previous approval of the Central Government, to delegate any power or authority conferred on or delegated to, him, to such other Officer or authority as he may specify. The remaining sections in Part I, II and III of the Merchant Shipping Act are of no particular significance to the dispute at hand. Part IV was later omitted. Part V deals with "Registration of Indian ships", Part VI with "Certificates of Officers such as Masters, Mates, Engineers and Shippers, etc.", Part VI-A with "Obligations of certain certificate holders to serve Government or in Indian ships, Part VII with "Seaman and apprentices", Part VIII with "Passenger ships", Part IX with "Safety", Part IXA with "Nuclear Ships", Part IXB with "Security and Port Facilities", Part X with "Collisions, accidents at sea and liability in respect thereof", Part X-A with "Limitation of such liability", Part X-B with "Civil liability for oil pollution damage", Part XI with "Navigati....
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.... as meaning any place appointed under Section 7(b) to be a land customs station. 35.3 ICDs and CFSs, therefore, exercise authority to permit unloading of imported goods or loading of export goods within their premises by virtue of the premises having been delimited as customs areas under Section 8 or the ICD/CFSs themselves having been notified under Section 7. They, therefore, owe their very identity, in a sense, to Sections 7 and 8 of the Customs Act. Clearly, however, the purpose of notification under Section 7, approval under Section 8(a) or specification of limits as customs area under Section 8(b) is "for the unloading and loading of goods or for any class of goods", or for keeping of goods, ordinarily, before clearance by the customs authorities. 35.4 Section 4524 of the Customs Act stipulates that all imported goods, unloaded in a customs area, shall remain in the custody of such person as may be approved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or transshipped. Sub-section (2) of Section 45 sets out the responsibilities of the person having custody of the imported goods in the customs area. The person notified under Sec....
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....er Section 141(2) of the Customs Act. Regulation 3 made the HCCAR applicable to handling of imported and export goods in ports, airports, ICDs, land customs stations and in customs areas approved or specified under Section 8 of the Customs Act. 35.8.2 That the HCCAR, therefore, applies to the handling of import or export goods in ICDs cannot, therefore, in our view, be gainsaid. Regulation 2(b) defines "Customs Cargo Services Provider" as meaning "any person responsible for receipt, storage, delivery, dispatch or otherwise handling of imported goods and export goods and includes a custodian as referred to in section 45 of the Customs Act". Learned counsel before us are ad idem that CFSs and ICDs are "Customs Cargo Service Providers" within the meaning of Regulation 2(b). 35.8.3 Regulation 5 delineates the conditions to be fulfilled by Customs Cargo Service Providers. Of the various sub-regulations under Regulation 5, Sub-Regulation (5), which alone is of relevance, requires the Customs Cargo Services Provider "to comply with the provisions and abide by all the provisions of the Act and the rules, regulations, notifications and orders issued thereunder." This requirement is reiter....
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....ilfered after entry thereof in the customs area, (k) be responsible for the secure transit of the goods from the said customs area to any other customs area at the same or any other customs station in accordance with the permission granted by the [Deputy Commissioner of Assistant Commissioner of Customs]; (l) subject to any other law for the time being in force, shall not charge 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 or examining officer, as the case may be]; (m) dispose off in the manner specified and within a time limit of ninety days, the imported or export goods lying unclaimed, uncleared or abandoned : Provided that the period of ninety days may be extended by the Commissioner of Customs by such further period as may be allowed, on sufficient cause being shown for delay in the disposal; (n) not make any alteration in the entry or exit points or boundary wall without the permission of the Commissioner of Customs; (o) shall bear the cost of the customs officers posted by the Commissioner of Customs on cost recovery basis and shall make payments a....
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....o comply with any of the conditions of regulation 5, he may for reasons to be recorded in writing, exempt such Customs Cargo Service provider from any of the conditions of regulation 5. [Provided that no exemption shall be granted in respect of any of the conditions referred to in regulation 5, where the overall safety and security of the premises are likely to be affected thereby.] (2) The Commissioner of Customs may regulate the entry of goods in a customs area for efficient handling of such goods." 35.8.8 Regulation 8 prohibits a Customs Cargo Service Provider from commencing any operation in the customs area for the first time unless the Commissioner is satisfied that the requirements of the Act have been fulfilled and grants permission to commence the operations. Regulation 9 sets out the particulars of the approval to be submitted by the Customs Cargo Service Provider for being permitted custody of imported or export goods and for handling of such goods in a customs area. Where the Commissioner of Customs is satisfied that the applicant fulfils the conditions prescribed in Regulation 5, the Commissioner is empowered, by Regulation 10(1), to approve the applicant as a Cus....
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....h to 14th April, 2020 and (ii) exempt or remit demurrage, ground rent over and above the free period, penal anchorage/berth hire charges and any other performance-related penalties that may be levied on port related activities, including minimum performance guarantee wherever applicable. The directions in the Order dated 31st March, 2020, therefore, pertain to levy of penalties, demurrage, charges, fee and rentals by the Major Port and to exemption or remission, by the Major Port, of the said charges over and above the provided free period. The Order does not deal with any charges levied or collected by CFSs, ICDs or shipping lines. This Circular cannot, therefore, come to the assistance of the petitioners. 37.4 Even otherwise, the Major Port Trusts Act does not empower the Central Government to issue directives to CFSs, ICDs or shipping lines, not to charge any component of the charges otherwise realisable by them from importers or users of their facilities. Power, with the Central Government under Section 111 is restricted to issue of directives to the Board of Trustees of the Port or to TAMP. 37.5 It has been sought to be contended, before us, that Section 111 of the Major Por....
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....to perform any of the services and functions assigned to the Board under this Act on such terms and conditions as may be agreed upon." The CFSs have, on affidavit, confirmed that no agreement or arrangement, under Section 42(3-A), has been executed or entered into, between the Board and the CFSs, and Mr. Sibal, for the petitioners, does not dispute this position. Nor have the petitioners sought to aver that the CFSs are "authorised service providers" within the meaning of Section 42(3). 37.7 The inevitable sequitur is that Section 48 cannot even authorise framing, by the TAMP, of the scale of rates at which services are to be provided by CFSs or ICDs located outside Major Ports, as learned Senior Counsel for the CFSs and ICDs have correctly contended. The provisions of the Major Port Trusts Act do not, therefore, provide for any measure of control, whatsoever, over the tariff at which CFSs or ICDs located outside Major Ports would charge importers or exporters for storage of the goods, nor can they monitor, or injunct, collection of recovery of such charges, whether in the nature of penal exactions or otherwise. 37.8 This contention, as advanced by Mr. Vikram Nankani, learned Sen....
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....e the Major Ports. It is not the case of the Petitioners that any of the Major Ports or any of the ICDs/CFS either operating on the major port or on the land owned by or provided by any of the Major Ports has either not provided the exemptions/remission directed to be provided by way of the two orders issued by the MoS or having availed of such exemptions/remission has failed to pass on the benefit of the same to the end consumer, leading to any sort of unjust enrichment on the part of any of the ICDs/CFS. That being the case, the reliance placed by the Petitioners on the orders dated 31.3.2020 and 21.4.2020 would not in any manner advance the case of the Petitioners." (Emphasis supplied) 37.9 Even otherwise, the TAMP, under Section 48, merely fixes and approves the scales of rates for services to be performed by the Board or other persons. Even in respect of any CFS which may be located within the area of a Major Port and may, therefore, conceivably be amenable to Section 48 of the Major Port Trusts Act, all that the Section regulates are the scales of rates for the services to be performed by the CFSs or ICDs. There is no provision, in the Major Port Trusts Act, which can regul....
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..... 37.13 Directions, issued by an executive authority in exercise of the power invested in such authority to do so, have necessarily to be such as would be amenable to compliance by the authority to whom the directions are issued. The authority issuing directions, in exercise of powers conferred by statute in that regard, has also to ensure that the body to whom the directions are issued is empowered to comply with such directions. It is as much folly, in law, to issue directives in excess of the authority vested in the one, as to issue directives to perform acts in excess of the authority vested in the other. 37.14 The Order dated 21st April, 2020 directs "ports" to ensure strict implementation of the circular by, inter alia, CFSs, ICDs and shipping lines. Neither the Board of Trustees of the port, nor the TAMP, is empowered by the Major Port Trusts Act, to regulate levy, collection and recovery of penal charges from the importers or exporters, by the CFSs, ICDs or shipping lines. At best, the framing of the tariff, in the case of ICDs or CFSs located within major ports, may be said to be required to conform to Section 48. This directive is, therefore, impossible of compliance. ....
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....lenged or not. In this regard, the Supreme Court has held, in para 17 of the report in Deepak Agro Foods v. State of Rajasthan (2008) 7 SCC 748, thus: "17. All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. (See: Kiran Singh vs. Chaman Paswan AIR 1954 SC 340). However, exercise of jurisdiction in a wrongful manner cannot result in a nullity - it is an illegality, capable of being cured in a duly constituted legal proceedings." (Emphasis supplied) In a similar vein, it was held in para 54 of the report in DLF Universal Ltd. v. Director, Town and Country Planning Department, Haryana (2010) 14 SCC 1, as under: "54. It is thus clear that there is no provision in the Act, the Rules or in the licence that ....
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....clearly contractual in nature, even if the tariff has to be published in accordance with Regulation 6(3) of the HCCAR. Indian School has clarified, beyond any scope of doubt, that the Government, as well as the Disaster Management Authorities, cannot, in exercise of the powers conferred by the Disaster Management Act, issue directions "in respect of economic aspects of legitimate subsisting contracts or transactions between two private individuals with which the State has no direct causal relationship, especially when the determination of compensation/cost/ fees is the prerogative of supplier or manufacturer of the goods or service provider of the services". In view of this unequivocal declaration of the law by the Supreme Court in Indian School, the submission of Mr. Sibal, that, in exercise of the powers conferred by the Disaster Management Act, the Government could interdict collection of penal charges by ICDs, CFSs or shipping lines, beyond the permitted "free periods", is completely unacceptable. Irrespective of whether there existed, or did not exist, express written contracts between CFSs and ICDs and their customers, the relationship between the CFSs, ICDs and shipping line....
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....he petitioners also rely on Order No 07 of 2020 dated 29th March, 2020, Order No. 08 of 2020 dated 31st March, 2020 and Order No. 11 of 2020 dated 22nd April, 2020, respectively. The jurisdiction of the DGS extends only to shipping lines, and not to CFSs or ICDs. Of these, Order No 07 of 2020 and Order No. 08 of 2020 are, expressly, mere "advisories". 38.2 Where the authority issuing the order has itself chosen only to advice, rather than to direct, we are of the opinion that the Court cannot, by judicial fiat, transmute the advisory into a directive. Of course, the Court is empowered to, on its own account, issue directions in terms of advisories issued by executive authorities. The enforceability of such directions would, however, owe its origin not to the advisories issued by the authorities, but to the directive issued by the Court. Issuance of such a mandatory directive would, however, in the first instance, require clear evidence of the existence of a corresponding duty, on the authority to whom the mandamus is issued, to comply with such directive. 38.3 The third DGS Order No 11 of 2020, dated 22nd April, 2020 is, however, somewhat differently worded. The logic of wording ....
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.... Even while vouchsafing, by this concluding passage in its Order, that the relationship between shipping lines and importers/exporters was contractual in nature, the DGS proceeds to "also advice" shipping companies or carriers not to impose any new or additional charge. The word "also", in this passage is, in our considered opinion, of significance. It indicates that para 7 of the Order, though it purports to record the decision of the DGS, is also to be treated as an advisory, insofar as compliance with the said decision is concerned. We are unable, therefore, to construe Order No 11 of 2020 as being in the nature of a mandatory directive to shipping lines, as Mr. Sibal would seek us to hold. 38.4 The stark distinction between Order No 11 of 2020 of the DGS and the MOS Order dated 21st April, 2020 - which was expressly worded in the form of a mandatory directive - makes it appear that, unlike the MOS, the DGS was somewhat ambivalent about its authority or its jurisdiction to interdict levy or collection of penal charges by shipping lines from their customers, such charges being relatable to "negotiated contractual terms". We endorse this sentiment. We have already had occasion to....
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.... the petitioners. 39. Circular issued by the CBIC 39.1 The petitioners rely on a Circular, dated 23rd April, 2020, issued by the CBIC. The CBIC, interestingly, contends, before this Court, that the Circular was never intended to be mandatory or even directory in nature, and was merely by way of an inter-departmental communication from the CBIC to the Chief Commissioners and Principal Chief Commissioners of Customs under it, to ensure compliance with the Orders issued by the MOS. 39.2 To our mind, this is apparent from a reading of the Circular. The only "mandate", if any, is to be found in the concluding para of the Circular, which merely requires the Chief Commissioners and Principal Chief Commissioners to ensure compliance with the order of the MOS by the ICDs and CFSs in their respective zones. The Circular cannot, therefore, be invested with any compulsive element, in excess of that contained in the Orders of the MOS or the DGS. We have already held that the petitioners are not entitled to capitalise on the Orders of the MOS and the DGS, to maintain a plea for issuance of a mandamus to ICDs, CFSs or shipping lines, not to charge penal charges from exporters and importers bey....
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....tail, and do not propose to reiterate our findings. Suffice it to state that the only mandate, on CFSs or ICDs, under the HCCAR, is to prominently publish the rates at which they charge their customers, including on their website or webpage, and, subject to any other law for the time being in force, not to charge demurrage and detention on goods which are seized, detained or confiscated by the Customs authorities. A detailed discussion on this aspect may be found in the judgement of this Court in Global Impex v. Manager, Celebi Import Shed, MANU/DE/4351/2019. We are unable to countenance the submission that the responsibilities cast on CFSs or ICDs by the HCCAR, in their capacity as "Customs Cargo Services Provider" would, per sequitur, make all executive instructions issued by the CBIC binding on them. The submission, to the said effect, as advanced by Mr. Sibal and other learned Counsel for the petitioners is, therefore, rejected. 39.6 Nor can Regulation 6(1)(q) of the HCCAR come to the aid of the petitioners in that regard. All that the said sub-regulation requires is for the Customs Cargo Services Provider is to "abide by all the provisions of the (Customs) Act and the Rules, ....
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.... Disaster Management Act, in the wake of the judgement of the Supreme Court in Indian School, would apply, mutatis mutandis, to the Circular of the CBIC. 39.11 Mr. Sibal also sought to submit that the tariff charged by CFSs or ICDs was required to be pre-approved by the Customs authorities, thereby indicating control, of the CBIC, over the recovery of charges by the CFSs or ICDs from the exporters or importers. We have already pointed out that there is a distinction between fixation of tariff and collection of charges in accordance with the tariff. The argument of Mr. Sibal is really irrelevant to the issue at hand, as the petitioners are not seeking any change in the tariff charged by ICDs or CFSs for storage of goods. What they are seeking is, essentially, interference with the right of ICDs, or CFSs, to recover charges, from importers, in accordance with the tariff so fixed, even where the goods continue to remain in their premises beyond the "free period". Any accommodation, by us, to this request of the petitioners would, we are afraid, be in the teeth of the law enunciated by the Supreme Court in Indian School which, in no uncertain terms, proscribes the issuance of any dire....
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....stoms. The Board has, vide several notifications issued under the said Section, appointed Commissioners, Additional Commissioners, Joint Commissioners, Deputy Commissioners and Assistant Commissioners to be officers of customs within the area specified in the said notification. Accordingly, a Commissioner of Customs can notify a Container Freight Station as a customs area only within his prescribed jurisdiction. 3. Similarly with widespread industrialization and growth of industrial centres in the hinterland of the country, facility of customs clearance of imported/export goods has been made available at the doorsteps of importers/ exporters by way of opening of a large number of ICDs across the country. Necessary changes have been made in section 2(12) and 7(aa) of the said Act, specifically incorporating the term 'Inland Container Depot' on par with other customs port/airport/Land Customs Station, etc. Accordingly, ICD is a place that acts as a 'self contained customs station' like a port or air cargo unit where filing of customs manifests, bills of entry, shipping bills and other declarations, assessment and all the activities related to clearance of goods for home use, wareho....
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.... Commissioner as a CFS, if there is no ICD or seaport within its jurisdiction to which the said CFS can be attached. Such a facility can, however, be notified as an ICD i.e., as an independent customs station with provision for filing and assessment of documents and examination of goods. A customs clearance facility could be established as a CFS at a port city for examination of imported/export goods, since the CFS would fall under the jurisdiction of Commissioner of Customs, having jurisdiction over the customs port with which the CFS would be attached. Further, in a seaport city such as Chennai or Mumbai, it may be possible to develop an ICD also within the territorial jurisdiction of the concerned Customs Commissionerate in addition to existing CFSs. In case of such an ICD, it should be capable of providing full-fledged customs services, independent EDI system, and all procedures meant for transhipment of cargo have to be followed for movement of goods from the port of import to the ICD. Further, such an ICD would function as an independent Customs Station in all respects and would not be attached to any other port or airport. 8. It is accordingly advised that at the time of i....
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....ng of bills of entry and shipping bills and other declarations, assessment of the imported goods to duty and other activities related to clearance of imported goods for home use, warehousing, temporary admissions, reexport, etc., therefore, take place at ICDs. Para 4 clarifies that, in view thereof, ICDs are self-sufficient Customs stations and, "for all practical purposes a Custom House, in the same way as a port or airport". The Circular, therefore, distinguishes between ICDs, which are "Customs stations", and CFSs, which are "Customs areas". The CFS, as a customs area is, by para 4, treated as "an extension of the Customs Station", to decongest the ports. Part of the functions performed by the Customs Station, of unloading and loading of the goods and application/segregation thereof, takes place at CFSs. CFSs, therefore, are extensions of the Port/ICD. Even so, assessment of documents takes place centrally. 39.14 It would be unwise, in our opinion, to read more, in Circular 18/2009-Cus, than is contained therein. What the Circular seeks to clarify is the distinct role performed by ICDs and CFSs in the matter of clearance of imported consignments in the hinterland. Each of these....
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....persons identically situated. We are unable to hold that ICDs and CFSs, on the one hand, and importers and exporters, on the other, are identically situated. Learned Senior Counsel for the ICDs and CFSs have waxed, eloquently, on the near-insurmountable difficulties that their clients faced during the lockdown, consequent on the services rendered by ICDs and CFSs being declared as "essential services" and the issuance of Governmental directives to ICDs and CFSs to continue to perform during the said period. As a result, contended learned Counsel, that the ICDs and CFSs had to incur huge amounts of infrastructural and other expenses, including payments which were required to be disbursed to the workmen and employees. Even so, it was pointed out, the ICDs and CFSs did grant discounts, both across the board as well as in individual instances on a case-to-case basis, to importers and exporters who faced genuine difficulties. To expect the ICDs and CFSs to continue in this fashion, without any earnings by way of recovery of the amounts, contractually payable for the periods during which imported or exported goods continued to remain in their premises it was submitted, is unrealistic as ....
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....thorities - to approach the matter solely from the point of view of the importers or exporters, unmindful of the difficulties which were faced by the ICDs and CFSs during the lockdown, and the constraints under which they operated. Equity inherently inheres in the exercise of jurisdiction under Article 226, and we are not persuaded to hold that the equities of the present case are entirely in favour of the petitioner importers/exporters, and to the prejudice of the respondent ICDs/CFSs/shipping lines, as would warrant our inference under Article 226 of the Constitution of India. Conclusion 47. We regret, therefore, our inability to accede to the prayers in these petitions (except WP (C) 3649/2021). 48. In view of the aforesaid findings and decisions, the individual writ petitions are disposed of thus: W.P.(C) 2707/2021 49. The prayer clause in the writ petition reads thus: "The Petitioner, therefore, prays that this Hon'ble Court be pleased: (a) Issue a writ of Mandamus and/or any other appropriate writ, order or direction to the Respondent No. 1 to 4 to take appropriate penal action against the Respondent No. 5 to 11 for not complying with the Orders and Advisories is....
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....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) 3171/2020 53. The prayer clause in the writ petition reads thus: "In view of the fact and circumstances of the case, it is respectively prayed that this Hon'ble Court may he pleased to: a) Issue an appropriate writ, order or direction in the nature of Mandamus thereby issuing directions to the Respondent numbers 1, 2 and 4 for issuance of strict orders/ directions to be complied with by the Respondent nos. 6 to 23 and other CFS qua non charging of ground rent, demurrage, container detention charges or any other ancillary charges during the lockdown period in a time bound manner and report the compliance thereof to this Hon'ble Court; b) Issue an appropriate writ, order or direction in the nature of Mandamus thereby issuing directions to the Respondent numbers 1, 2 and 4 to ensure compliance of the notifications and orders, directions issued by them qua non charging of ground rent, demurrage, container detention charges or any other ancillary charges by the Respondent nos. 6 to 23 and other CFS during the lockdow....
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....any other appropriate writ, order or direction to the Respondent No. 1 to ensure that the normal free period to clear the consignments is allowed over and above the lockdown period i.e. from the date operations are normalized. e) Issue a Writ of Mandamus under Article 226 of the Constitution of India or any other appropriate writ, order or direction to the Respondent No.1, 2 & 3 to ensure that powers under Section 48 of the Major Port Trust Act be not exercised on the goods stuck at ports during the lockdown period. f) Issue a Writ of Mandamus under Article 226 of the Constitution of India or any other appropriate writ, order or direction to the Respondent No. 5 to respond appropriately to the representation of the Petitioner seeking the grant of a government stimulus package for the industry and directions to banks and NBFCs to take a lenient and proactive policy by providing adequate financial support to the Members. g) Pass any other or further order(s) that this Hon'ble Court may deem to be just, fair and equitable." 56. Prayers (a) to (e) stand covered by the above findings and have, therefore, to be rejected. 57. Prayer (f) seeks directions to the Ministry of Finance ....
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....e said First, Second and the Third Advisories (Annexure "P-4", "P-5" and "P-6") either in the form of advisories or as mandatory directions; (e) That this Hon'ble Court be pleased to declare that Respondent No.3 under the said First, Second and the Third Advisories (Annexure "P-4", "P-5" and "P-6") cannot override or interfere with private contracts between the shipping lines (Petitioner's members) and its customers (importers/exporters); (f) That this Hon'ble Court be pleased to issue a Writ of Mandamus and/or any other appropriate writ, order or direction, thereby quashing and setting the First, Second and the Third Advisories (Annexure "P-4", "P-5" and "P-6") issued by Respondent No.3; (g) That pending the hearing and final disposal of the present Writ Petition, this Hon'ble Court be pleased to stay the effect, implementation, operation and execution of the First, Second and the Third Advisories (Annexure "P-4", "P-5" and "P-6"); (h) Pass any other or further orders as this Hon'ble Court may deem fit in the facts and circumstances of the case." 64. In view of the discussion hereinabove, the prayers (a) to (e) in the writ petition are allowed. 65. Prayer (f) does not su....
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....ure (on all uncleared containers) during the entire period of the lockdown (as may be extended from time to time) plus another 30 days as recovery period; e. Issue a writ of mandamus, or any appropriate writ, order or direction to Container Freight Stations, Inland Container Depots and shipping lines/shipping companies/shipping carriers (whether registered in India or not) directing them to refund all such amounts that they have collected (for the period from March 22, 2020 till lifting of the nationwide lockdown, as the case may be, plus another 30 days as recovery period) from the members of Petitioner No. 1 Association as storage charges, lease rentals and license fees related charges, demurrages, detention charges, ground rent, dwell time charges, anchorage charges and any other penal charges or charges of such nature; f. Issue a writ of mandamus, or any appropriate writ, order or direction to Container Freight Stations, Inland Container Depots and shipping lines/shipping companies/shipping carriers (whether registered in India or not) directing them to levy tariffs (on nonpenal charges) as were applicable to respective importers as on March 21, 2020 with regards to such ch....
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.... period; e. Issue a writ of mandamus, or any appropriate writ, order or direction to Container Freight Stations, Inland Container Depots and shipping lines/shipping companies/shipping carriers (whether registered in India or not) directing them to refund all such amounts that they have collected (for, the period from 3 March: 22, 2020 till lifting of the nationwide lockdown, as the case may be, plus another 30 days as recovery period) from various importers including petitioner herein as storage charges, lease rentals and license fees related charges, demurrages, detention charges, ground rent, dwell time charges, anchorage charges and any other penal charges or charges of such nature; f. Issue a writ of mandamus, or any appropriate writ, order or direction to Container Freight Stations, inland Container Depots and piping lines/shipping companies/shipping carriers (whether registered in India or not) directing them to levy tariffs (on nonpenal charges) as were applicable to respective importers as on March 21, 2020 with regards to 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 cir....
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.... lines/shipping companies/shipping carriers (whether registered in India or not) directing them to refund all such amounts that they have collected (for the period, from March 22, 2020 till lifting of the nationwide lockdown, as the case may be, plus another days as recovery period) from various, importers including petitioners herein as storage charges, lease rentals and license fees related charges, demurrages, detention charges, ground rent, dwell time charges, anchorage charges and any other penal charges or charges of such nature; f. Issue a writ of mandamus, or any appropriate writ, order or direction to Container Freight Stations, inland Container Depots and shipping lines/shipping companies/shipping carriers (whether registered in India or not) directing them to levy tariffs (on nonpenal charges) as were applicable to respective importers as on March 2, 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." 73. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. T....
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....ted 23 April 2020 is refunded in full; (c) Pass any other or further order(s) that this Hon'ble Court may deem to be just, fair and equitable." 77. 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) 5532/2020 78. The prayer clause in the writ petition reads thus: "In view of the submissions made above and in the circumstances of the case, the petitioner most respectfully prays that this Hon'ble Court may kindly be pleased to: (i) Issue a writ in the nature of Mandamus or any other appropriate writ or an order directing Respondent No. 1 to 3 to ensure strict compliance and implementation of their Orders and Directions issued granting relief to Importers from the undue charges of Demurrages during lockdown period and to take appropriate steps against Respondents 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 Dem....
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....espondent No. 3 in terms of clause 10 of the circular dated 21st April, 2020, bearing No. PD-14033/4/2020-PD VII issued by the Director, Ministry of Shipping, Government of India and to forthwith ensure that the petitioner's articles which are lying in the custody of the Respondent No. 3 and in the lands of the Kolkata Port Trust are released upon payment of admitted rent and other charges for the period from 20th February, 2020 till 24th March, 2020; (b) Issue a Writ of and/or in the nature of Mandamus be issued commanding the Respondent authorities, particularly the Respondent Nos. 2 and 3 and each one of them, their men, agents, subordinates and associates to forthwith take steps so as to ensure that the provisions of the circular dated 21st April, 2020 issued by the Ministry of Shipping and circular dated 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....
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....sal of this Writ Petition, direct the Respondent Nos. 3 to 8 to refund the amount of Rs. 1,620,150.24 paid by the petitioner as against the detention charges within a period of two weeks. (F) Pending hearing and final disposal of this Writ Petition, this Hon'ble High Court be pleased to direct the respondents to permit the petitioner to clear the imports covered by the Bill of Ladings (Exh. E) provisionally by extending the benefits of DGS Order 11 of 2020 dtd. 22nd April, 2020 (Exh. D) in the interest of justice and direct the Respondent nos. 3 to 10 to issue the final delivery order and to allow free period as per contractual terms agreed with Respondent Nos. 3 to 10. (G) Any other 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 ....
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....e 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 DGS Order No. 11 of 2020 dated 22.04.2020 (Ext P6); (ii) extend the validity of DGS 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-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 ....
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....ay be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or direction directing Respondent Nos. 4 and 5 to return/restitute to the Petitioner amounts charged and recovered as ground rent charges and taxes thereon, and also directing Respondent Nos. 6 to 8 to return/restitute to the Petitioner amounts charged and recovered as container detention charges/demurrage and taxes thereon for the goods and containers detailed in Annexure K and M to the petition; (CCC) Pending hearing and final disposal 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 ....
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....fy the limits of any customs area." This provision is required to be read in conjunction with Section 33 of the Customs Act: "33. Unloading and loading of goods at approved places only. - Except with the permission of the proper officer, no imported goods shall be unloaded, and no export goods shall be loaded, at any place other than a place approved under clause (a) of section 8 for the unloading of loading 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 in....
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....nagement" means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for - (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster 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 cons....
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....sue directions to Board. - (1) Without prejudice to the foregoing provisions of this Chapter, the Authority 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 or....