Bombay High Court
All Cargo Logistics Ltd. And Ors vs Union Of India Through The ... on 5 June, 2017
Bench: S.C. Dharmadhikari
Judgment-WP.3310.2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3310 OF 2017
1. All Cargo Logistics Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at Avvashya }
House, 6th Floor, CST Road, }
Kalina, Santacruz (E), }
Mumbai 400098. }
2. Ameya Logistics Pvt. Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at village }
Dhasakhoshi Taluka Uran, }
Post Koproli Raigad, }
Maharashtra - 410 212. }
3. Apollo Logisolutions Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at Office No.303, }
Third Floor, DLF Courtyard, }
Saket, New Delhi - 110 017. }
4. Ashte Logistics Pvt. Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at 109/110, }
Mahinder Chambers, WT Patil }
Marg, Chembur, }
Maharashtra 400 071. }
5. Continental Warehousing }
Corporation (Nhava Sheva) Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at 405, Windfall, }
Sahar Plaza Complex, Andheri, }
Kurla Road, JB Nagar, }
Andheri (E) Mumbai 400 059. }
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6. EFC Logistics India Pvt. Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at 310, Al-Akbari }
Mansion, 27, Weston Street, }
Kolkata - 700 012. }
7. Gateway Distriparks Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at Sector 6, }
Dronagiri, Taluka Uran, }
District Raigad, Navi Mumbai. }
Maharashtra - 400 707. }
8. International Cargo Terminals }
& Infrastructure Pvt. Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at Godrej Coliseum, }
Office No. 801, 'C' Wing, Behind }
Everard Nagar, Off. Somaiya }
Hospital Road, Sion East, }
Mumbai 400 022. }
9. Kerry Indev Logistcs Pvt. Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at New 81, }
Old 41, Thambu (Chetty) Street, }
Mannady, Chennai - 600 001. }
10. Ocean Gate Container }
Terminals Pvt Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at 220, Sai }
Commercial Centre, 2nd Floor, }
Station Road, Govandi (East), }
Mumbai 400 088. }
11. Take Care Logistic Park }
(India) Pvt. Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
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Registered office at Survey No. }
96,1,87/3, 87/4,87/5,87/6m, }
Mumbai - Goa Highway,Near }
BPCL Petrol Pump, Palaspa, }
Village, Taluka Panvel, }
District Raigad 410 206. }
12. TG Terminals Pvt. Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at 802, Sai }
Samarth Comm Prem CHS Ltd. }
Deonar Village Road, Near Shah }
Industrial Estate, Govandi(East), }
Mumbai 400 088. }
13. Seabird Marine Services }
Pvt Ltd. }
A Company registered under the }
Companies Act, 1956, having its }
Registered office at 215/218, }
Venus, Opposite Cricket Bungalow, }
Jamnagar, Gujarat - 361 001. }
14. Adarsh Hegde, }
S/o Mr Sudhakar Hegde, }
Aged about 53 Yrs, Occ. Joint }
Managing Director, having office }
at All Cargo Logistics Logistics }
Ltd., Avvashya House, 6th Floor, }
CST Road, Kalina, Santacruz(E), }
Mumbai 400 098. }
15. Ashish Dhurvendra Goel }
S/o. Dhurvendra Prakash Goel, }
Aged about 43 years, Occ. }
Director, having its Registered }
office at Ameya Logistics Pvt. Ltd. }
Village Dhasakhoshi, Taluka Uran, }
Post Koproli, Raigad, }
Maharashtra 410 212. }
16. Pisipati Sri Siva Prasad }
S/o. Prof. VGKM Pisipati }
aged about 49 yrs, Occ. }
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Director, having its }
Registered office at Apollo }
Logisolutions Ltd., Office No. }
303, Third Floor, DLF Courtyard, }
Saket, New Delhi - 110 017. }
17. Rajkumar Khemchand }
Rawlani, }
S/o. Mr. Khemchand Rawlani, }
Aged 54 yrs, Occ. Director, }
having its Registered office at }
109/110, Mahinder Chambers, }
WT Patil Marg, Chembur, }
Maharashtra - 400 071. }
18. Darayush K Jalanwalla }
S/o. Late Mr. Keki Jalanwalla, }
Aged 61 yrs, Occ. Director, }
having its Registered office at 405, }
Windfall, Sahar Plaza Complex, }
Andheri, Kurla Road, JB Nagar, }
Andheri (E) Mumbai 400 059. }
19. Kalyan Chowdhury }
S/o Late Mr Nityaranjan }
Chowdhury, Aged about 46 yrs. }
Occ. Director, having its }
Registered office at 310, Al-Akbari }
Mansion, 27, Weston Street, }
Kolkata - 700 012. }
20. Ishaan Gupta, }
S/o. Mr Prem Kishan Gupta, }
Aged 28 yrs, Occ. Director, }
having its Registered office }
Sector 6, Dronagiri, Taluka Uran, }
District Raigad, Navi Mumbai. }
Maharashtra - 400 707. }
21. Krishna B Kotak, }
S/o. Late Mr. Bhagwanbhai Kotak, }
Aged about 56 yrs, Occ. Director, }
having its Registered office at }
Godrej Coliseum, Office No. 801, }
'C' Wing, Behind Everard Nagar, }
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Off. Somaiya Hospital Road, }
Sion East, Mumbai 400 022. }
22. Sivasankaran Jayaraman }
S/o. Mr Jayaraman Mahalingam }
Aged bout 59 yrs, Occ. Director, }
having its Registered office at }
New 81, Old 41, Thambu (Chetty) }
Street, Mannady, }
Chennai - 600 001. }
23. K. Sriramamurthy }
S/o. Late Mr K. Venkateswarlu, }
Aged about 64 yrs, Occ. Director, }
having its Registered office at }
Ocean Gate Container Terminals }
Pvt Ltd. 220, Sai Commercial Centre, }
2nd Floor, Station Road, }
Govandi (East), Mumbai 400 088. }
24. Iqbal Hussain Qazi, }
S/o. Mr Hussain Qazi, Aged 50, }
Occ. Director, Take Care Logistic }
Park (India) Pvt. Ltd. having its }
Registered office at Survey No. }
96,1,87/3, 87/4,87/5,87/6m, }
Mumbai - Goa Highway,Near }
BPCL Petrol Pump, Palaspa, }
Village, Taluka Panvel, }
District Raigad 410 206. }
25. Jignesh Anantray Goradia, }
S/o. Mr. Anantray Vanmalidas, }
Aged 49 yrs, Occ. Director, }
having office at TG Terminals Pvt. }
Ltd., 802, Sai Samarth Comm Prem }
CHS Ltd. Deonar Village Road, }
Near Shah Industrial Estate, }
Govandi(East), Mumbai 400 088. }
26. Yogesh Khatau Parekh }
S/o. Mr Khatau Mulji Parek, }
Aged about 44 years, Occ. Director, }
Having office at Seabird, Marine }
Segices Pvt. Ltd., 215/218, Venus, }
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Opp. Cricket Bungalow, Jamnagar, }
Gujarat - 361 001 } Petitioners
versus
1. Union of India, }
Through the Secretary }
Ministry of Finance, Department of }
Revenue, North Block, }
New Delhi 110 001. }
2. Chief Commissioner of Customs }
Mumbai Customs Zone - II, Nhava }
Sheva, Taluka Uran, Dist. Raigad, }
Maharashtra - 400 707. }
3. Commissioner of Customs }
(Import) }
Jawahrlal Nehru Customs House, }
Nhava Sheva, Taluka Uran, }
Dist. Raigad, Maharashtra 400 707. }
4. Commissioner of Customs, }
NS-III, Mumbai Customs Zone - II, }
Jawharlal Nehru Customs House, }
Nhava Sheva, Taluka Uran, }
Dist. Raigad, Maharashtra - 400 707. }
5. Commissioner of Customs, }
NS-I, IV & V, Jawharlal Nehru Customs }
House, Nhava Sheva, Taluka Uran, }
Dist. Raigad, Maharashtra - 400 707. }
6. Commissioner of Customs }
NS-G, Mumbai Customs Zone, - II, }
Jawharlal Nehru Customs }
House, Nhava Sheva, Taluka Uran, }
Dist. Raigad, Maharashtra - 400 707. }
7. Central Board of Excise & }
Customs }
North Block, New Delhi - 110 001, }
8. Container Freight Station }
Association (India) }
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A company registered under the }
companies Act, 1956, having its, }
registered address at C/o. ULA }
CFS, Sector- 08, Dronagiri, PO }
Box No. 5 (JNPT), Opp. Bhendkhal }
Village, Taluka Uran, Dist. Raigad, }
Navi Mumbai 400 707. }
9. Speedy Multimodes Ltd. }
A company registered under the }
companies Act, 1956, having its, }
registered address at JNP CFS, }
Jawaharlal Nehru Port, Sonari }
Village, Taluka, Uran - 400 707. }
10. Assistant Commissioner }
of Customs, }
CFS Management Cell, }
Jawharlal Nehru Customs House, }
Nhava Sheva, Taluka Uran, }
Dist. Raigad, Maharashtra 400 707. } Respondents
Mr. Janak Dwarkadas-Senior Advocate
with Mr. Rohan Rajadhyaksha, Mr. Adhip
Iyer, Mr. Cheryl Fernandes and Mr. Divij
Joshi i/b. M/s. AZB and Partners for the
petitioners.
Mr. Anil C. Singh-Additional Solicitor
General with Mr. Pradeep S. Jetly and
Ms.Indrayani Deshmukh for respondent
nos.1 to 7.
Mr. Birendra Saraf and Mr. Yuvraj K.
Singh i/b. M/s. Desai and Diwanji for
respondent no. 9.
CORAM :- S. C. DHARMADHIKARI &
PRAKASH. D. NAIK, JJ.
Reserved on 10 th April, 2017
Pronounced on 5 th June, 2017
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JUDGMENT :- (Per S. C. Dharmadhhikari, J.)
1. Heard the learned counsel appearing for the parties. Rule.
The respondents waive service. By consent, Rule is made
returnable forthwith.
2. By this petition under Article 226 of the Constitution of
India, the petitioners are challenging two public notices dated 9th
February, 2017 and 6th March, 2017 being Public Notice Nos. 16
and 27 of 2017.
3. The petitioners are also seeking to quash and set aside a
prior public notice dated 16th January, 2017 being Public Notice
No. 8 of 2017.
4. There are two reliefs sought in relation to Public Notice No.
161 of 2016 dated 28th November, 2016. Unlike the above public
notices, which are sought to be quashed in their entirety, as far as
this public notice is concerned, the petitioners pray quashing and
setting aside of para 4.9 of the same.
5. The petitioners are also seeking quashing and setting aside
of appointment of respondent no. 9 as the Designated Container
Freight Station (CFS) by the impugned Public Notice No. 161 of
2016 dated 28th November, 2016.
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6. The petitioners are also challenging paragraphs 3.7 and 3.8
of the Facility Notice No. 63 of 2008 dated 1 st September, 2008,
which provides for appointment of a designated CFS.
7. Finally, by the amendment, the petitioners are seeking to
challenge a tender notice dated 17th March, 2017.
8. By a writ of mandamus or any other writ, order or direction
in the nature thereof, the petitioners are seeking a direction to
the respondents, who are contesting the writ petition, not to
enforce or apply the impugned public notices and to go ahead with
the tender notice.
9. These reliefs have been claimed against the Union of India,
the Chief Commissioner of Customs and other authorities and
officials functional under the Customs Act, 1962 (respondent nos.
2 to 6). Respondent no. 7 is the Central Board of Excise and
Customs, whereas, respondent no. 10 is the Assistant
Commissioner of Customs, CFS Management Cell, Jawaharlal
Nehru Customs House (JNCH), who has issued the tender notice
dated 17th March, 2017. Respondent no. 8 before us is the
Association of the Container Freight Stations, against whom, no
relief is sought, whereas, respondent no. 9 has been joined as a
party respondent simply because it has been appointed as the
designated CFS for the purpose of Facility Notice No. 63 of 2008.
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10. The background facts giving rise to the present petition are
that in 1989, the Government of India introduced a policy for
development of CFS. The need for CFS was in response to the
growing volume of international trade, the need for expeditious
clearance of goods at the port within minimum possible time.
This was more so when the ports in India were facing congestion
at their premises on account of growth in import and export
volumes as a result of the liberalization of the economy.
Therefore, for optimal utilisation of existing infrastructure, space
and equipment the goods that landed at ports needed to be
evacuated straight away without any loss of time. Accordingly,
the concept of CFS was introduced and grew in importance along
with the development and growth of ports. The idea in setting up
of CFS, therefore, was to decongest the port.
11. The CFS has, therefore, been recognised as an extension of a
customs station, set up with the main objective of decongesting
the port. This was also clarified inter alia in Circular No. 18 of
2009 dated 8th June, 2009 issued by respondent no. 1 through
respondent no. 7, copy of which is annexed as Exhibit-'A' to the
petition. Even as of February, 2017, respondent no. 7
acknowledges in Circular No. 4 of 2017-Customs dated 16 th
February, 2017 that "CFSs are extension of the port. In the over
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all ecosystem of customs clearance, the CFSs have played an
important role in faster clearance of EXIM goods, as a result, bulk
of the regulatory activity other than appraising has shifted to
CFSs. Copy of Circular No. 4 of 2017 is annexed as Exhibit 'B' to
the petition.
12. Accordingly, several CFSs, including the petitioners' have
been set up and the registration and functioning of all CFSs is
governed by the Handling of Cargo in Customs Area Regulations,
2009 (for short "the HCCA Regulations, 2009"). As on date, there
are 34 CFSs operating with respect to Jawaharlal Nehru Port
employing directly and indirectly a large local populace. The
above CFSs were established pursuant to substantial
investments, both, in terms of investment in infrastructure and
security standards. A brief summary of the process of setting up
of a CFS is outlined as under:-
(i) An applicant desirous of obtaining permission to
operate a CFS files an application in the prescribed format
to the Infrastructure Division at Ministry of Commerce,
New Delhi. In order to be eligible for applying, an applicant
has to inter alia acquire a minimum of 5 acres of non-
agricultural land, which requires a significant expenditure;
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(ii) Upon receiving approval, the applicant is required to
set up the infrastructure within one year from the date of
the approval. This requires a substantial investment for
constructing the CFS, which involves the following:-
a) Construct a warehouse for storing containers;
b) Construct a yard that either has to be concrete or
with paver blocks, so as to take the weight of at least 4
containers one over the other;
c) Construction of electrical substation, fire pump room
and workshop for the maintenance of equipments and
repairing of containers;
d) Construction of administrative building where the
Customs officers will be operating from. The
administrative building has to be constructed keeping in
mind the requirements of also housing a bank branch,
cafeteria, canteen in the CFS;
e) Purchasing and setting up of sophisticated cargo
handling equipments such as cranes, reach stackers,
empty handlers, truck trailers, fork lifts etc.;
f) Purchase and set up security equipments such as
CCTV cameras, sniffer dogs, metal detectors etc.
(iii) Once the infrastructure is set up, the Commissioner of
Customs inspects the facility and upon being satisfied of
the infrastructure and security standards, notifies the CFS
under section 8 and 45 of the Customs Act, 1962;
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(iv) Once the notification under section 45 of the Act is
issued to the CFS, the concerned CFS has to furnish a bond
to the President of India, through the Commissioner of
Customs, backed by a bank guarantee representing 10% of
the value of the cargo handling capacity of the relevant
CFS;
(v) Upon receipt of the bond, the Commissioner of
Customs issues a commencement certificate to the
concerned CFS. Upon receiving such commencement
certification, the CFS is permitted to begin operations.
13. Thus, significant efforts, time and expenditure is incurred
in order to set up a CFS and make it operational.
14. The petitioners submit that in order to fully appreciate the
controversy involved in the present writ petition, it is necessary
to first briefly set out the process of import of cargo into India and
the role played by a CFS in the said process, which is as follows:-
(i) The carriage of goods by sea commences upon receipt
of the consignment as sealed containers from the exporter
at the port of loading. The vessel with the said containers
on board then sails to the Port of Discharge (POD).
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(ii) Approximately 48 hours before the vessel berths at
the POD, an Import General Manifest (IGM) is filed by the
shipping line through the ICE Gate System, the e-
Commerce Portal of respondent no. 7. The petitioners
state that an IGM is a document that contains details of the
Bill of Lading (BOL) i.e. BOL number, BOL date, the cargo
details, the name of the consignee, marks and number on
the cargo, number of packages, weight of the cargo, port of
loading, port of discharge in India and final destination,
container number and size of the container and also
whether the containers are Full Container Load (FCL) or
less than container load where cargo in the container
belongs to several consignees (LCL). The IGM also
indicates whether a cargo is to be sent to a CFS or to a
particular Inland Container Depot (ICD). Subsequently, on
account of the introduction of DPD facility, the IGM also
indicates whether a container is meant for DPD (A sample
IGM is annexed as Exhibit 'C' to the petition).
(iii) About 6 to 8 hours prior to the berthing of the vessel
at the POD, an Import Advance List (IAL) is filed by the
shipping line with the terminal. The IAL contains
information like container number, weight, size, status
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(laden/empty), category (hazardous/reefer etc.), POD,
mode of transport (rail/road), seal number etc. Further,
the IAL also provides details of the destination of the
container, including the name of the port and the preferred
CFS. A sample IAL is annexed as Exhibit 'D' to the petition.
(iv) Thereafter, the vessel berths at the POD. After
berthing of the vessel, the customs inwards clearance
takes place, where the Customs authorities board the
vessel and check the vessel's documents like statutory
certificates, bonded items, fuel, fresh water, crew
personnel declaration etc. In some instances, the
clearance may also be given prior to the berthing of the
vessel to facilitate commencement of operations without
any delay on berthing. This is done by boarding officer by
making entry in the ICEGATE. Similar inspection and
clearances also take place by immigration authorities and
the Port Health Officer.
(v) Thereafter, the terminal (utilising its own facilities,
staff, equipment etc.) discharges the cargo and
simultaneously loads export cargo on the vessel.
(vi) In cases where cargoes are meant for CFS, an
Equipment Interchange Receipt (EIR) is issued by the
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terminal and is usually given to the representative of the
CFS at the terminal (normally the driver of the trailer
appointed by CFS). This document is issued by terminal
when the cargo exits the terminal gate. A sample EIR is
annexed as Exhibit 'E' to the petition.
(vii) The containers, with the cargo, are then evacuated
from the port by the CFS under a Customs Bond given by
the CFS for the completion of the customs formalities as
required by applicable laws. As aforesaid, the system of
evacuation of the containers from the port to a CFS was
put in place on account of several factors, including to ease
the congestion at the port due to the lack of available area
at the port/terminal itself to handle the large volumes of
import cargo arriving each day.
(viii) The consignee approaches the shipping line's
local office at the POD for a delivery order by submitting
the fully discharged original BOL and clearing dues of the
shipping lines. This delivery order is addressed to the
custodian i.e. Port Terminal, CFS or ICD instructing them
to give physical delivery of the cargo to the consignee. The
delivery order is then presented to the CFS for taking
delivery of the container from the CFS. A sample delivery
order is annexed as Exhibit 'F'.
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(ix) Thereafter, the consignee completes the Customs
documentation and requirements after which the Customs
authorities give an endorsement 'out of charge' on the bill
of entry to the consignee. The CFS thereafter delivers the
cargo to the consignee against the delivery order.
15. The petitioners further submit that by a circular dated 24th
November, 2005, being Circular No. 42 of 2005-Cus., respondent
no. 7 introduced the Accredited Clients Programme (ACP). Under
the ACP, respondent no. 7 decided to introduce a system called
Risk Management System (RMS). As per the aforesaid circular,
the objective of ACP was to grant assured facilitation to importers
who have demonstrated capacity and willingness to comply with
the laws the Customs Department is required to implement.
Under the RMS, bills of entry filed by importers in the Exchange
Data Interface (EDI) system of the Indian Customs authorities
would be processed for risk and a larger number of consignments
would be allowed clearance based on the importer's self
assessment without examination. At this stage, this facility was
available only to certain select importers who fulfilled the
prescribed criteria. The main criterias were as follows:
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(i) The importer should have imported goods worth Rs.10
crores or paid duty equivalent to Rs.1 crore in the
previous financial year;
(ii) The importer should have filed at least 25 bills of entry
in the previous financial year in one or more Indian
Customs stations.
The said circular formed part of Public Notice No. 64 of
2005 (PN 64/2005) dated 12th December, 2005 issued by
respondent no. 3, copy of which is annexed at Exhibit 'G'.
16. On 1st September, 2008, respondent no. 3 issued Facility
Notice No. 63 of 2008. That notice, inter alia, provided for DPD
facility (i.e. for importers to take delivery directly from the port
terminal) to ACP importers (as per Public Notice No. 64 of 2005)
and to 100% Export Oriented Units (EOUs) for FCL containers
covered by the RMS or where no examination is required. The
petitioners state that under the DPD facility, delivery of the
containers would be done at the port itself and therefore, such
containers would not travel to a CFS for completion of the
Customs formalities. Facility Notice No. 63 of 2008 provided for
importers, who satisfy the aforesaid criteria, to apply for DPD
facility to respondent no. 3 in the prescribed form. It also
provided for the procedure that would be followed under the DPD
facility.
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17. The petitioners submit that in this context, it is relevant to
note that in the year 2008, the numbers of ACPs were limited to
about 15 in number and the volume of DPD container traffic,
therefore, was minimal. In fact, until June, 2016 only 26
importers were permitted to avail of the DPD facility. However,
as elaborated, later, the number of importers eligible for DPD
facility has suddenly been extended to more than 700 importers.
18. On 11th September, 2008, respondent no. 3 issued Public
Notice No. 66 of 2008, whereby, Speedy/respondent no. 9 was
appointed as the "designated CFS" for the purposes of moving
DPD containers not cleared from the port as per the procedure
prescribed in Facility Notice No. 63 of 2008. It is pertinent to
note that Speedy/respondent no. 9 was appointed as the
designated CFS arbitrarily without any due process and without
giving any opportunity to other CFSs like the petitioners. It is
further significant to note that no reasons/grounds whatsoever
have been indicated in Public Notice No. 66 of 2008 in support of
the appointment of Speedy/respondent no. 9 alone as the
designated CFS and for the exclusion of all other CFSs. Copy of
Public Notice No. 66 of 2008 is annexed as Exhibit 'I' to the
petition.
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19. The petitioners further submit that this optional DPD
facility, though it included the appointment of Speedy/respondent
no. 9 as the designated CFS in the most arbitrary manner, did not
cause serious threat to the business and existence of other CFSs
like the petitioners at that point of time.
20. The petitioners state that on account of Public Notice No.
161 of 2016, there has been a rise in the volume of DPD container
traffic. As a result of this, the business of CFSs, including the
petitioners, was significantly impacted since a significant number
of containers, which would otherwise hitherto have passed
through CFSs such as the petitioners, would no longer come to the
petitioners on account of being earmarked as DPD i.e. delivery at
the port itself. It is significant to note that on account of Public
Notice No. 161 of 2016, requiring clearance of the containers
from the port within 48 hours, there was an increase in the
number of DPD containers that were sent to the designated CFSs
i.e. Speedy/respondent no. 9 on account of not being collected
within the period of 48 hours prescribed by Public Notice No. 161
of 2016, as illustrated in further details below.
21. On 28th November, 2016, respondent no. 4 issued Public
Notice No. 161 of 2016 with effect from 1 st December, 2016,
extending the DPD facility to a list of 467 named importers from
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26 importers as late as July, 2016 by relaxing the eligibility
requirements specified in Facility Notice No. 63 of 2008. Further,
Public Notice No. 161 of 2016 sets out the procedure for the DPD
facility and changed the time period of 24 hours prescribed by
Facility Notice No. 63 of 2008 for clearance of DPD containers to
48 hours.
22. On 9th December, 2016, respondent no. 8 addressed a
detailed letter to respondent no. 2 regarding the above mentioned
Public Notices, wherein, it contended that the appointment of
respondent no. 9 as designated CFS to receive all DPD containers,
which were not cleared in 48 hours, was arbitrary and amounted
to discrimination against its members. Respondent no. 8 also set
out the prejudice caused to CFSs on account of the fact that with
the relaxation of the norms for importers to avail of DPD facility,
the number of containers which would go to Speedy/respondent
no. 9 as the designated CFS on account of not being cleared from
the port in 48 hours would also increase. Moreover, respondent
no. 8 also made certain suggestions to the DPD system, including
allowing shipping lines to choose the CFS of their choice or to
allow CFSs to bid for clearance of containers whose dwell time is
more than 48 hours. Respondent no. 8 also requested for a
meeting with respondent no. 2 to further explain their position. A
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copy of the letter dated 9th December, 2016 addressed by
respondent no. 8 to respondent no. 2 is annexed as Exhibit 'K'.
23. Instead of considering the legitimate grievance put forth by
respondent no. 8, on 19th December, 2016, respondent no. 5
issued Public Notice No. 180 of 2016 and extended the DPD
facility to a further list of 214 named importers mentioned in
Annexure 'A' to Public Notice No. 180 of 2016. The petitioners
state that as a result of Public Notice No. 180 of 2016, the number
of DPD containers increased still further, resulting also in a
concomitant further increase in the number of DPD containers
sent preferentially to Speedy/respondent no. 9 on account of not
being cleared in 48 hours from the port. Copy of Public Notice No.
180 of 2016 is annexed as Exhibit 'L' to the petition.
24. On 23rd September, 2016, respondent no. 8 addressed
another letter to respondent no. 2 reiterating their concerns and
suggestions as set forth in the letter dated 9th December, 2016.
Copy of the letter dated 23rd December, 2016 is annexed as
Exhibit 'M' to the petition.
25. On 27th December, 2016, respondent no. 5 issued an
advisory to all CFSs, including the petitioners with regard to the
DPD facility. In the said advisory, respondent no. 5 directed that
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FCL containers imported by importers who have been accorded
the DPD facility as per Public Notice No. 161 of 2016 and Public
Notice No. 180 of 2016, which are facilitated by RMS and meant
for DPD, shall not be accepted at any CFS. Respondent no. 5 also
stated that non-compliance of this by a CFS would be viewed
seriously and action shall be initiated as per the Customs Act,
1962. A copy of the advisory dated 27th December, 2016 is
annexed as Exhibit 'N' to the petition.
26. On 16th January, 2017, respondent no. 6 issued Public
Notice No. 8 of 2017, whereby, it was reiterated that in cases
where DPD containers are not cleared by the DPD importers
within 48 hours, the terminals should transfer the same to the
designated CFS i.e. respondent no. 9, unless otherwise directed by
the Customs. However, Public Notice No. 8 of 2017 went further
and also directed that an importer eligible for DPD must give
advance intimation of at least 72 hours to the shipping line, inter
alia, regarding the DPD code of the importer and the preferred
CFS of the importer. The petitioners state that notwithstanding a
preferred CFS being indicated by the importers, with the
exception of containers that are 'out of charge' i.e. where the
import/customs formalities have been completed, all the DPD
containers that are not out of charge and are not cleared in 48
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hours are being sent to Speedy/respondent no. 9. Further, Public
Notice No. 8 of 2017 also directed that where such advance
intimation for availing of the DPD facility is not given by the
importer, then, in respect of importers who hold PDP
permissions, the terminal should identify their containers and
earmark them as being DPD (i.e. even where the importer has not
opted for DPD for the said container) and if such containers are
not collected from the port in 48 hours and are eligible for the
RMS facility, the same should be transferred to
Speedy/respondent no. 9. Public Notice No. 8 of 2017 further
clarifies that only in the event that a container is not RMS
facilitated, the DPD facility would not be available for the same
and the container would be routed through a CFS.
27. Therefore, Public Notice No. 8 of 2017 has the effect of
overriding the choice of CFS mentioned in the IGM and the
compelling/forcing the DPD facility on the DPD eligible importers
even if they have not opted for DPD and directs that if such RMS
facilitated containers are not cleared in 48 hours, the same will be
sent to Speedy/respondent no. 9. A copy of Public Notice No. 8 of
2017 is annexed as Exhibit 'O' to the petition.
28. Further, on 16th January, 2017, respondent no. 6 also
issued Public Notice No. 9 of 2017, which, inter alia, recorded the
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representations made by various importers on difficulties faced
by them on account of the compulsory imposition of DPD facility
on all RMS facilitated containers. Public Notice No. 9 of 2017,
inter alia, states that importers find it difficult to make the
logistical arrangements necessary to evacuate RMS facilitated
containers through DPD from the terminal, because of the
following reasons.
(i) Difficulty in the arrangement of a transporter;
(ii) Risk of theft;
(iii) Issue of insurance;
(iv) Two shift handling charges being charged by private
terminal operators.
(v) Dealing with non-RMS containers;
(vi) Requirement of temporary storage for Customs cleared
cargo or warehousing facility, owing to lack of storage
space in the importers factory premises;
(vii) Cash flow issues due to insufficient funds for payment of
Customs duty and delivery order charges;
(viii) Occasional requirement to de-stuff/shift containers to
other modes of transport;
(ix) Requirement to affix RSP/MRP stickers before clearance.
29. The above reasons indicate that importers were finding the
compulsory imposition of DPD facility difficult and burdensome,
rather than facilitating the ease of business for such importers. A
copy of Public Notice No. 9 of 2017 is annexed as Exhibit 'P' to the
petition.
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30. On 16th January, 2017, respondent no. 8 addressed another
letter to respondent no. 2 in response to the abovementioned
advisory dated 27th December, 2016, issued by respondent no. 5
to CFSs to the effect that serious action would be taken against
CFSs if containers, which are earmarked for DPD, are accepted by
a CFS. Respondent no. 8 indicated that CFSs do not move the
containers from the port on their own (the same being on the
basis of the IGM filed by the importer/shipping line) and
therefore, action against the CFSs is misconceived. The said
letter once again reiterated the legal contentions against the
designation of Speedy/respondent no. 9 as the designated CFS in
the context of the DPD facility. A copy of letter dated 16 th
January, 2017 addressed by respondent no. 8 is annexed as
Exhibit 'Q' to the petition.
31. On 18th January, 2017, respondent no. 6 addressed a letter
to respondent no. 8 in response to the above letters addressed by
respondent no. 8. In this letter, respondent no. 6 stated as
follows:-
(i) That the procedure prescribed in Public Notice No.
161 of 2016 for moving DPD containers to
Speedy/respondent no. 9 in the event that they are
not cleared in 48 hours will apply only to provide
for circumstances of exceptional nature i.e. when
any DPD importer could not clear goods within 48
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hours of landing. Respondent no. 6 also stated that
in view of the various measures taken to provide
ease of doing business, extension of DPD of (sic.) a
large number of importers, it is expected that most
of the consignment (sic.) will normally be cleared
in 48 hours. The Petitioners state that this is
totally false and contrary to the ground reality,
which is that with each step taken by the Customs
authorities to increase the DPD container traffic,
the container traffic being sent to
Speedy/respondent no. 9 on account of the said
containers not being cleared in 48 hours is also
increasing.
(ii) That Speedy/respondent no. 9 was appointed as the
designated CFS purportedly on account of the fact
that it is the closest CFS to the port and therefore,
transporting the containers to Speedy/respondent
no. 9 would avoid congestion on the roads. The
petitioners state that this is a clear afterthought
since Public Notice No. 66 of 2008 which appoints
Speedy/respondent no. 9 as the designated CFS
does not mention any such reason. In any event,
respondent no. 6 has totally failed to appreciate
that there are other CFSs, including the
petitioners, which are within a comparable
distance from the port and, in any event not at
such great distance as to exclude them from being
eligible to receive DPD traffic that has not been
cleared in 48 hours.
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(iii) That as per Public Notice No. 161 of 2016, a DPD
importer has been allowed to ask for a change in
CFS subject to the same being allowed by
Additional/Joint Commissioner in charge of RMS
facilitated centre and therefore, the appointment of
a designated CFS is not arbitrary or unfair. The
petitioners state that this contention ignores the
fact that in reality the said permissions are not
granted as a matter of course (in fact, as few as 28
permissions have been granted till date) and in any
event, the period of 48 hours is largely insufficient
to obtain this permission and therefore, the DPD
containers nevertheless end up going to the
designated CFS i.e. Speedy/respondent no. 9 at the
end of 48 hours.
(iv) That no contract has been awarded to any
particular entity and therefore, there is no
question of tender. The petitioners state that this
contention ignores the fact that by appointing
Speedy/respondent no. 9 as the designated CFS and
directing all DPD traffic towards
Speedy/respondent no. 9 alone, a monopoly has
arbitrarily and unfairly been created in favour of a
single designated CFS in respect of those DPD
containers which are not cleared by importers
within the prescribed period of 48 hours and that
this designated CFS has been appointed without
giving any opportunity to any other CFS to bid or
compete for the same.
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32. A copy of the letter dated 18th January, 2017 addressed by
respondent no. 6 to respondent no. 8 is annexed as Exhibit 'R' to
the petition.
33. On 9th February, 2017, respondent no. 6 issued Public
Notice No. 16 of 2017, whereby, it was reiterated that in cases
where importers eligible for the DPD facility of RMS facilitated
containers do not obtain clearance from respondent nos. 2 to 6 i.e.
a Customs "out of charge" is not received in respect of the said
containers, the importers would not be permitted to choose their
CFS. As detailed hereinabove, several importers are unable to
obtain an "out of charge" from respondent nos. 2 to 6, within the
stipulated time period on account of various difficulties beyond
their control. A copy of Public Notice No. 16 of 2017 is annexed
as Exhibit 'S' to the petition.
34. Additionally, respondent no. 2, during a meeting held on
19th January, 2017 with all stakeholders of the port, including
the petitioners, directed all CFSs, including the petitioners to
support DPD facilitation of RMS containers and stated that any
containers not cleared by the importers within a period of 48
hours would be subjected to stringent examination. A copy of the
minutes of the meeting held on 19 th January, 2017 are annexed
as Exhibit 'T' to the petition.
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35. On 6th March, 2017, respondent no. 5 issued Public Notice
No. 27 of 2017, which, inter alia, placed the obligation on CFSs,
including the petitioners of ensuring that all DPD containers
which were marked to a particular CFS as per the IGM, were only
evacuated to the CFS after they had obtained Customs "out of
charge" and further to ensure that the containers were only
released to DPD importers once they had certified that a delivery
order had been issued to the importer. A copy of Public Notice No.
27 of 2017 is annexed as Exhibit 'U' to the petition.
36. The petitioners filed the present petition on 16 th March,
2017 in this court and a copy of the petition was served upon the
respondents on 17th March, 2017. Immediately, on receipt of the
copy of the petition, respondent nos. 1 to 6 issued a limited tender
notice dated 17th March, 2017 through respondent no. 10 for
inviting bids from all CFSs registered as Customs Cargo Service
Provider (CCSP) under the HCCA Regulations, 2009 for being
appointed as the designated CFS for delivery of DPD containers
from port terminals of JNCH, Nhava Sheva to CFSs, if the
importers fail to clear their respective DPD containers from the
port terminals within a period of 48 hours of the containers
landing in the port terminal. A copy of the limited tender notice
dated 17th March, 2017 is annexed as Exhibit 'W'.
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37. There is an affidavit in reply filed to this writ petition by the
Commissioner of Customs, Nhava Sheva (General).
38. First of all, it is stated that the Public Notice No. 16 of 2017
dated 9th February, 2017 has been issued by the Jawaharlal
Nehru Customs House, CFS Management Cell, Nhava Sheva,
Taluka Uran, District Raigad, by which, in addition to various
other measures undertaken to reduce the dwell time and
transaction cost to the importers/trade, additional facility, in
terms of direct port delivery code and importer's choice of CFS
code has been permitted to the importers/trade. This has
resulted in a dramatic reduction of DPD containers not cleared
from Customs within 48 hours. In the Month of February, 2017,
the number of such DPD containers going to Speedy/respondent
no. 9 was 7215 containers, which got reduced to 3568 containers
in the period of 1st March to 22nd March, 2017. In one month, this
figure of DPD containers not cleared within 48 hours has reduced
by 30% and it is foreseen to be reducing still further in the coming
days. Interestingly, the figure of the DPD containers for which
the importer has chosen the other CFS including the petitioners,
stands at 2049 containers in the month of February. That has
dramatically increased to 7698 containers till 22 nd March, 2017.
Thus, reliance is placed on a copy of the data sheet with regard to
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clearance of DPD containers from the port terminal. Therefore,
there cannot be any grievance and if at all there was one, it has
been redressed. Hence, the petition be rejected.
39. Then, it is explained in the further paragraphs that the
rationale and the reason for extending DPD to RMS facilitated
cargo (where no examination is required) is that earlier such
containers were routed through CFSs only for the purpose of
verification of container number, seal number and condition of
seal. As the containers are routed through CFSs, charges
enumerated in para 4 at page 157 have to be paid. In other
words, such particulars can be verified inside the port terminal
(before clearance from port) and DPD was extended so as to
reduce both, time and cost.
40. Then, it is stated that the petitioners are challenging
various public notices, some notifications and circulars issued by
the Central Board of Excise and Customs, facilitation notices, but
they forget that they are Customs Cargo Service Providers within
the meaning of HCCA Regulations, 2009 made by the Central
Board of Excise and Customs in exercise of powers conferred by
sub-section (2) of section 141 read with section 157 of the
Customs Act, 1962. In para 8 of this affidavit, the notifications of
the Ministry of Shipping and Transport (Port Wing) are referred.
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It is then stated that one CFS attached Jawaharlal Nehru Port
Trust (JNPT) is operated by respondent no. 9. The petitioners
are covered by the above regulations and then reference is made
to regulation 2(b) and regulation 7(2) of the HCCA Regulations,
2009, by which, the Jurisdictional Commissioner of Customs can
regulate movement of import/export containers. Thus, in
exercise of the powers conferred by section 141(2) of the said Act
and Regulation 7(2) of the HCCA Regulations, 2009, Facility
Notice No. 63 of 2008 dated 1st September, 2008 was issued.
Then, para 3.8 of the facility notice is referred, by which, all
concerned were informed that the commissioner of Customs
would notify the designated CFS. The Commissioner of Customs,
JNCH issued Public Notice No. 66 of 2008 dated 11 th September,
2008 notifying Speedy Multimode Ltd. as the designated CFS.
41. The justification for the issuance of these notices is
provided in para 11 of this affidavit, which reads as under:-
"11. I say that the Commissioner of Customs, JNCH,
considering the administrative requirement of nominating
a CFS in a transparent manner, decided that it would be
appropriate to nominate a CFS closest to the Port
Terminal. Therefore, Speedy Multimodes Ltd., CFS, which
is located nearest to the Port Terminal was designated as
default CFS. Further Commissioner of Customs, JNCH
notified Speedy Multimodes Ltd., as the designated CFS
due to it being owned by JNPT and which accordingly falls
under the domain of Tariff Authority For Major Ports [for
short TAMP]. TAMP Regulations put a ceiling on what
Speedy Multimodes Ltd., CFS can charge. It cannot charge
in an arbitrary manner. This decision was taken by the
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commissioner of Customs, JNCH, considering Public
Interest, so that any default evacuation of containers
[beyond 48 hours] will avoid congestion on the road and
also to reduce the Transaction cost of Importers/Trade."
42. Then, what is relied upon is a letter of the Chairman, JNPT
dated 29th November, 2016, copy of which is annexed as Exhibit
'6' to the affidavit in reply. It is stated that as per the information
available to Customs, petitioner nos. 1 to 13 do not fall under the
domain of Tariff Authority for Major Ports. This gives them the
liberty to charge market rates, and/or more, and on their terms.
Thus, it is stated that subsequent public notices issued by the
Commissioner and impugned in the petition envisage that if the
DPD containers were not cleared within 48 hours, they should be
moved to the designated CFS in public interest and for the
reasons mentioned in paras 9 to 11 of the reply affidavit.
43. Further, the justification provided for the impugned actions
is that the same is in line with the view expressed by the Madras
High Court in the case of Container Shipping lines association vs.
Union of India1. A copy of this judgment is annexed as Exhibit '7'
to the affidavit. Hence, what is objected to is the designation of
respondent no. 9, but if one bears in mind the object and purpose
of the public notices, particularly of doing business and reducing
the transaction cost of the port users/DPD clients, then, the
1 2014(213) ELT 19
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interest of all stakeholders is sufficiently protected. Now, there
was a demand from respondent no. 8 and other CFSs that it would
be in the interest if the designation of CFS is done through a
process of limited tender. That is how, to make the procedure
more transparent, it was decided to float a limited tender. That
would allow all CFSs to participate in a transparent manner.
44. In paragraphs 16, 17 and 19 of this affidavit in reply, it is
urged as under:-
"16. I say that in this regard, a Limited Tender Notice for
inviting bids from all CFS registered as CCSP with JNCH,
has been floated, on 17-03-2017 by JN Custom House for
designation of CFS for delivery of DPD Containers from
Port Terminals of JNCH, Nhava Sheva to CFS, if not
cleared beyond the prescribed period and under certain
other circumstances. Hereto annexed and marked as
Exhibit 8 is a copy of the Limited Tender Notice.
17. I say that in this regard, the Limited Tender Notice
documents have already been received by 27 CFS out of
the currently operating 33 CFS including Petitioner Nos. 1,
2, 5, 6, 7, 8, 9, 10 and 13 on 17-03-2017 itself and the last
date of submission is 30-03-2017. Hereto annexed and
marked as Exhibit 9 is a copy of the sheet showing
receipt of Tender documents by 27 CFS.
19. I say that the petition is devoid of merits, and
deserves to summarily reject. I say that it is the importers
who bear the costs towards logistic expenses. They are not
aggrieved. It is the CFS who have approached this
Honourable Court. I say that the Petitioners have failed to
make out a case for the intervention of this Honourable
Court in exercise of its extra ordinary jurisdiction under
Article 226 of the Constitution of India. I say that the
actions of the Revenue are all aimed at achieving the
single object of facilitating all stakeholders. Without
prejudice to what is stated above, I will now deal with the
various paras of the petition as under."
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45. It is finally contended that the petitioners have
misrepresented the facts and projected incorrect perception. The
Customs House has sou moto extended the DPD facility to more
than 700 importers and there are no cases where any importer is
aggrieved against the extension of DPD to them. Further, there is
no reason for any importer to be aggrieved as this facility is
intended to reduce their transaction time and cost considerably.
The monthly total imports of containers through JNPT and other
port terminals being at approximately 1,20,000 Twenty Feet
Equivalent Units (TEU), even if 40% of the import containers are
cleared as DPD containers, which is around 48,000 TEUs, there
would be approximately cost saving up to Rs.48 crores to the
importers/trade. Thus, how the petitioners can be aggrieved
against extension of DPD to importers by Customs or by terminals
has not been clarified. Thus, there being no right vesting in the
petitioners, the petition is motivated and filed for purely
commercial considerations. The rest of the paragraphs in the
affidavit contain denials and explanations as to how, by the
measures taken for smooth administration of the port and in a
transparent manner, the interests of all stake holders are
protected. The importers have been provided an option to
indicate choice of CFS. For all these reasons, the writ petition is
misconceived and should be rejected outright. The private
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interest of the petitioners cannot override overall public interest.
For these reasons, the writ petition be dismissed. In the passing,
it is mentioned that the choice of the CFS is available to importers
and the procedure to avail the option is also very simple. There is
no need to visit the office and by e-mails, the same is finalized.
46. To this affidavit in reply, which is filed on 23 rd March, 2017
and is fairly lengthy and detailed, a rejoinder affidavit is
submitted by the petitioners. The rejoinder states, apart from
reiterating the challenge in the writ petition and grounds of such
challenge, that the writ petition is opposed by contending that
there is a limited tender notice dated 17th March, 2017 issued,
whereunder, the registered CFSs have been called upon to submit
their bids for delivery of DPD containers. This ensures
transparency and protection of public interest. Secondly,
respondent no. 9 has been designated due to it is owned by JNPT
and which falls under the domain of Tariff Authority under Major
Ports. However, these grounds are baseless and without any
merits. The issuance of tender notice does not redress the
grievance of the petitioners, as set out in the petition nor does it
render the petition infructuous. The petitioners do not contend
that they should be appointed as a designated CFS or there should
be a limited tender. The petitioners are not confining nor
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restricting their challenge to the appointment of respondent no. 9
as designated CFS. They are aggrieved by the impugned public
notices because they override the choice of the importers. If the
importers indicate their choice of the preferred CFS and if they
wish to send their containers to it, then, such a choice cannot be
interfered with. Once the DPD eligible importers have indicated a
preferred CFS in their IGM, then, their containers should be sent
to the preferred CFS irrespective of whether or not it is "out of
charge", namely, cleared for Customs from the port within 48
hours. From the reply, it appears that the respondents are
agreeable to DPD eligible containers, regardless of whether such
container has received an "out of charge' from Customs, being
delivered to the CFSs of the importers choice after expiry of 48
hours period within which they are to be cleared by the importers
as per Public Notice No. 161 of 2016. However, this stand is
contrary to Public Notice No. 27 of 2017, which clarifies that only
those containers which have received an "out of charge" from
Customs within 48 hours can be sent to the CFS preferred by the
importer and in the event that such "out of charge" is not
received for that container, the same will be sent to the
designated CFS. Thus, requiring all DPD containers to go to a
single designated CFS is arbitrary, illegal and unconstitutional
interference with the right of the petitioners to carry on their
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trade, regardless of the method, by which such a designated CFS
has been appointed. The petitioners do not have an equal
opportunity to participate in the DPD regime created by the
impugned public notices. Instead of allowing all the petitioners as
well as other CFSs an equal opportunity to participate in the DPD
regime, the impugned public notices seek to limit participation in
the same to a single designated CFS, which is discriminatory,
arbitrary and violative of the mandate of Article 14 of the
Constitution of India. Therefore, it is not as if a limited tender
notice being issued that the grievances of the petitioners do not
survive. The petitioners state that the challenge has been
misconstrued and misinterpreted by the contesting respondents.
If the appointment of respondent no. 9 is misused to benefit that
entity, then, that is a larger challenge and which survives very
much for consideration. Respondent no. 9 continues to be a
private entity even if it may fall under Tariff Authority for Major
Ports. The respondents have, till date, never raised any objection
about the charges levied by the petitioners on the imports and
therefore, they cannot falsely contend that there is a ceiling on
the amount charged by respondent no. 9 to the importers. There
is no reduction of cost either. Hence, the impugned action is not
in public interest and deserves to be struck down. This affidavit
in rejoinder is filed on 30th March, 2017.
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47. It is on the above material that we have to consider the rival
contentions.
48. Mr. Dwarkadas, learned senior counsel appearing for the
petitioners, invited our attention to all the public notices to
submit that it is the importers' choice to select a CFS. However,
what the respondents now stipulate is that if the containers are
not cleared, failure to do so would result in the same being
removed to respondent no. 9. Mr. Dwarkadas would submit that
such facilities, as are now sought to be introduced or created,
have been so done by issuing an executive fiat. There is no
compliance with the statutory requirement.
49. Mr. Dwarkadas then submits that the impugned actions
violate the petitioners' fundamental right guaranteed by Article
19(1)(g) of the Constitution of India. Mr. Dwarkadas also
submits that there is a violation of the mandate of Article 14 of
the Constitution of India, inasmuch as by failure to clear the
containers even by the DPD mode within the stipulated time
results in no penalty on the importers, but it deprives the
petitioners of their rights for all such containers, which are nor
cleared, irrespective of the choice of the importers, are then sent
to respondent no. 9. This is a clear discrimination in favour of
respondent no. 9 and against the petitioners on no rationale or
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reasonable basis. In other words, the advantage or benefit
derived by respondent no. 9 is to the detriment of the petitioners.
The authorities have, assuming but without admitting, attempted
to subserve larger public interest, but that is not served at all. It
is the interest of the private entity-respondent no. 9, which is
protected. This being a disincentive to the importers, it is the
petitioners who have to suffer. This is unduly harsh and
unreasonable step, which violates the mandate of Article 14 of
the Constitution of India. Mr. Dwarkadas then submits that there
is no public purpose being achieved, as the congestion at the port
has not been reduced at all by the impugned actions. Mr.
Dwarkadas submits that respondent no. 9's interest cannot be
compared with the petitioners for the petitioners cannot be
compensated by issuance of a limited public tender. The
petitioners' grievances and as highlighted in the petition have not
be redressed. Now, by an administrative order or act and without
the sanction of law, the impugned actions have been taken. Once
the petitioners have pointed out the lack of power or jurisdiction
in the authorities to take the impugned actions and measures,
then, the writ petition must succeed.
50. On the other hand, Mr. Anil Singh, learned Additional
Solicitor General would submit that the petitioners are not
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importers. The importers are not complaining at all. It is the
importers, who bear the financial burden. That is not to be borne
by the petitioners at all. It is in these circumstances that all the
actions have been taken in larger public interest and to reduce
the congestion at the port. The clearance of the cargo is
expedited. The petitioners have no vested right and they cannot,
in the process of challenging the measures initiated by the
authorities, seek to further their commercial interest. If at all an
importer has indicated his choice of a CFS and that choice of the
importer is not respected, then, the importer has ample
opportunities to seek legal assistance. The importer is not doing
any such thing. If at all the petitioners submit that the actions of
the authorities prejudice or frustrate the reciprocal obligations to
be discharged by them and the importers, then, they can proceed
against the importers by approaching a civil court. Surely, there
is no violation of the mandate of Articles 14 and 19(1)(g) of the
Constitution of India. Hence, the writ petition be dismissed.
51. For appreciating these contentions, a reference will have to
be made to the Customs Act, 1962. It is an Act to consolidate and
amend the law relating to Customs. The Statement of Objects and
Reasons to the unamended and amended act would indicate as to
how the enactment provides for the levy of duties of Customs.
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That is to discourage smuggling. Further, the trade has been
pressing for certain changes and facilities. It is in these
circumstances that the earlier Act was amended and later on, by
Amendment Act 55 of 1991, certain provisions relating to
warehousing of goods after import, without payment of duty,
were proposed to be amended. By the Statement of Objects and
Reasons to the Amendment Act 55 of 1991, it is clarified that the
imported goods may be stored in bonded warehouses till their
actual clearance for home consumption on payment of
appropriate duty or their re-export without payment of duty to
any foreign port. There is a difficulty because of the existing
provisions. Therefore, the Bill seeks to curtail the period of
warehousing, prescribe the increased rate of interest on duty
leviable on the warehoused goods, ensure prompt payment of
duty and impose interest on delayed payments of duty. There is a
desire to expedite the realization of revenue and discourage
indiscriminate warehousing of imported goods. Once the changes
ensure prompt payment of duties by imposing a time limit, then,
we do not see how there is any difficulty presented by the
impugned measures.
52. The definitions are contained in Chapter I in section 2 and
"customs airport", "customs port" and "customs station" are the
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words and expressions duly defined. The word "examination" is
inclusively defined in section 2(17) to mean, in relation to any
goods, measurement and weighment thereof. The Act also
contains the definition of the term "smuggling" in section 2(39).
There are other definitions, which are substituted by Act 28 of
2016 to words "warehouse" in section 2(43) and "warehoused
goods" in section 2(44). By Chapter II, the officers of Customs
and their classes are indicated. By Chapter III, appointment of
Customs ports, airports etc. is dealt with. By Chapter IV, section
11 is inserted, which deals with prohibitions on importation and
exportation of goods. Chapter IV-A deals with detection of
illegally imported goods and prevention of the disposal thereof.
Likewise, Chapter IV-B provides for prevention or detection of
illegal export of goods. There is a power to exempt and conferred
by section 11-N, which is contained in Chapter IV-C.
53. Chapter V deals with levy of and exemption from Customs
duties and Chapter V-A indicates the amount of duty in the price
of goods etc. for the purpose of refund. By Chapter V-B, there is a
regime created of advance rulings. By Chapter VI, provisions are
enacted relating to conveyances carrying imported or exported
goods. It is common ground that sections 29 to 43, which are
contained in this Chapter deal with "arrival of vessels and
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aircrafts in India" to "exemption of certain classes of conveyances
from certain provisions of this Chapter". By Chapter VII,
clearance of imported goods and export goods is a matter dealt
with. The goods in transit have to be dealt with in the manner set
out in Chapter VIII. Then comes an important Chapter and
namely Chapter IX dealing with "warehousing". There, licencing
of public and private warehouse and special warehouse is
provided. Section 60 deals with permission for removal of goods
for deposit in warehouse. Section 61 deals with period for which
goods may remain warehoused. Then, there are various aspects
which are enumerated in sections 64 to 73-A relating to
warehoused goods. Chapter X is titled as "drawback". Chapter XI
enacts special provisions regarding baggage, goods imported or
exported by post and stores. By Chapter XII, provisions relating
to coastal goods and vessels carrying coastal goods are enacted.
Chapter XIII deals with searches, seizure and arrest. Chapter
XIV deals with confiscation of goods and conveyances and
imposition of penalties. We are not concerned with Chapter XIV-
A dealing with settlement of cases and Chapter XV dealing with
appeals and revision so also Chapter XVI dealing with offences
and prosecutions. The miscellaneous provisions are contained in
Chapter XVII and section 141 falling thereunder reads as under:-
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141. Conveyances and goods in a customs area
subject to control of officers of customs. - (1) All
conveyances and goods in a customs area shall, for the
purpose of enforcing the provisions of this Act, be subject
to the control of officers of customs.
(2) The imported or export goods may be received,
stored, delivered, dispatched or otherwise handled in a
customs area in such manner as may be prescribed and
the responsibilities of persons engaged in the aforesaid
activities shall be such as may be prescribed.
54. A bare perusal of this section, which was renumbered by
insertion of sub-section (1) and sub-section (2) by Act 18 of 2008,
would indicate that all conveyances and goods in a customs area
shall, for the purpose of enforcing the provisions of this Act, be
subject to the control of officers of Customs and the imported and
export goods may be received, stored, delivered, dispatched or
otherwise handled in a Customs area in such manner as may be
prescribed and the responsibilities of persons engaged in the
aforesaid activities shall be such as may be prescribed. The word
"conveyances" is defined in section 2(9) to include a vessel, an
aircraft and a vehicle. The word "customs area" has been defined
in section 2(11) to mean the area of a customs station and
includes any area in which imported goods or export goods are
ordinarily kept before clearance by Customs authorities.
"Customs port" means any port appointed under clause (a) of
section 7 to be a customs port and includes a place appointed
under clause (aa) of that section to be an inland container depot.
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"Customs station" is defined in section 2(13) to mean any
customs port, customs airport or land customs station. Finally,
the word "prescribed" is defined by section 2(32) to mean
prescribed by regulations made under this Act and the word
"regulations" is defined in section 2(35) to mean the regulations
made by the Board under any provision of this Act. Thus, what
we have before us is a scenario where neither the power to make
regulations nor the regulations themselves are challenged.
However, for a completion of the legal regime, we reproduce
section 157 of the Customs Act, 1962, which reads as under:-
157. General power to make regulations. - (1)
Without prejudice to any power to make regulations
contained elsewhere in this Act, the Board may make
regulations consistent with this Act and the rules,
generally to carry out the purpose of this Act.
(2) In particular and without prejudice to the generality
of the forgoing power, such regulations may provide for all
or any of the following matters, namely:-
(a) the form of a bill of entry, shipping bill, bill of
export, import manifest, import report, export manifest,
export report, bill of transhipment, declaration for
transhipment, boat note and bill of coastal goods;
(ai) the manner of export of goods, relinquishment
of title to the goods and abandoning them to customs and
destruction or rendering of goods commercially valueless
in the presence of the proper officer under clause (d) of
sub-section (1) of section 26-A;
(aii) the form and manner of making application
for refund of duty under sub-section (2) of section 26-A;
(aa) the form and manner in which an application
for refund shall be made under section 27;
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(b) the conditions subject to which the
transshipment of all or any goods under sub-section (3) of
section 54, the transportation of all or any goods under
section 56 and the removal of warehoused goods from one
warehouse to another under section 67, may be allowed
without payment of duty;
(c) the conditions subject to which any
manufacturing process or other operations may be carried
on in a warehouse under section 65;
(d) the manner of conducting audit of the
assessment of duty of the imported or export goods at the
office of the proper officer or the premises of the importer
or exporter, as the case may be.
55. Once we have a general power to make regulations so as to
carry forward the object and purpose of the Act or carry out the
same additionally by invoking sub-section (2) of section 157, the
Board can make regulations consistent with the Act so as to set
conditions subject to which the transhipment of all or any goods
under sub-section (3) of section 54, the transhipment of all or any
goods under section 56 and the removal of warehoused goods
from one warehouse to another under section 67 may be allowed
without payment of duty. JNCH, without dispute is a Custom
area.
56. Now we refer to the relevant regulations. They have to be
read together with the sections appearing in Chapter IX of the
Customs Act, 1962 and all sections and provisions preceding and
following the same. If all these are read together and
harmoniously, then, it is apparent that the regulations empower
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regulating the movement of cargo in customs area. That also
enables regulating the movement of cargo and containers from
the terminal to the CFS in the larger interest of trade and public.
Mr. Singh learned Additional Solicitor General is right in
referring to the HCCA Regulations, 2009. They have been made
by the Central Board of Customs in exercise of the powers
conferred by section 141 read with section 157 of the Customs
Act, 1962.
57. Since we have referred to all the provisions of the Act in the
foregoing paragraphs by highlighting the object and purpose
thereof so also the Act itself, it is apparent that the reliance
placed on the two sections, namely, 141(2) and 157 of the
Customs Act, 1962 is apposite. By Regulation 2(b), the
expression "customs cargo service provider" is defined to mean
any person responsible for receipt, storage, delivery, dispatch or
otherwise handling of imported goods and includes a custodian
and persons as referred to in section 141(2) of the Customs Act,
1962. Once the handling of the cargo in customs area is in
accordance with the regulations and the regulations are
specifically made for that purpose, then, it is futile to contend that
the officials in-charge of implementing the Act and the
Regulations cannot issue the public notices. The public notices
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and the notifications referred above in extenso have been issued
in accordance with the provisions of the Customs Act, 1962. We
have referred to the entire Act only to appreciate the argument of
Mr. Dwarkadas that by an executive fiat or administrative act,
the whole legal regime has been altered. There is no power to do
so, according to him, nor is the Commissioner conferred with the
jurisdiction to do so. We are unable accept his arguments for
more than one reason. The Regulation 7(2) enables the
Commissioner of Customs to regulate the entry of goods in the
customs area for efficient handling of such goods. There is a
discretionary power conferred in the commissioner by this
regulation. Further, the handling of goods in the customs area is
a matter specifically dealt with by sub-section (2) of section 141.
Thus, regulations can be made so as to prescribe the manner in
which the imported or export goods may be received, stored,
delivered, despatched or otherwise handled in the customs area.
The regulations can also set out the responsibilities of persons
engaged in the aforesaid activities. Once the regulations deal with
such matters, then, it is not necessary that separate provisions
have to be made for each matter covered by sub-section (2) of
section 141. Section 141(2) itself enables the Commissioner to
exercise control. The provisions of the Customs Act, 1962 have
to be enforced so as to carry out its object and purpose and the
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goods in the customs area are subject to the control of officers of
Customs. They can, with the aid of these regulations and framed
by the Board, control the receipt, storage, delivery, despatch or
otherwise handling of the imported or export goods in customs
area. If sub-section (2) of section 141 enables the Board to make
regulations for this purpose so as to assist the officers of Customs
in performing their functions and duties, then, all the more there
is no substance in the contentions of Mr. Dwarkadas that the
officials lack the power or jurisdiction to issue the impugned
notices. The impugned notices are referable to the regulations
which are made under the provisions of the Act. Therefore,
issuance of public notices is implicit and inherent in the exercise
of the enabling power of ensuring proper handling of the goods in
the customs area and the larger power of control vesting in the
officers of the Customs.
58. We have also perused the impugned notices. The
petitioners have annexed copies thereof. By Circular No. 18 of
2009 at page 69 of the paper book, the Central Board of Excise
and Customs has dealt with the subject of designation of customs
clearance facilities as ICDs or CFSs. The Board circular dated 8 th
June, 2009 purports to clarify the issue with reference to the
legal provisions. In paras 8 and 9, the circular issues advise to
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the Jurisdictional Commissioners. If the proposed facility is
required to be approved as an ICD or CFS and whether such
facility fulfills the laid down guidelines, infrastructure
requirements specified in the HCCA Regulations, 2009 has to be
ensured. It is the Jurisdictional Commissioner who must record
the necessary decision based on the above satisfaction. The
circular clarifies that the competent authorities for regulation of
ICDs or CFSs are the concerned Jurisdictional Commissioners.
59. Then, there is Circular No. 4 of 2017 dated 16 th February,
2017, copy of which is annexed as Exhibit 'B' at page 73 of the
paper book. The subject of this circular is Expansion of 24x7
customs clearance and clarification of levy of MOT charges in
CFSs attached to 24X7 port. We need not refer to this circular in
further details, but suffice it to indicate that the Central Board of
Excise and Customs has empowered the Jurisdictional
Commissioners, by proper authorization, to provide such facility
as is required for ensuring early clearance of the goods.
60. Annexure 'H' is a copy of Facility Notice No. 63 of 2008.
The subject of this notice is "facility of direct port delivery to
select importers". The notice notifies for the information of trade
and public that direct port delivery for imported cargo will be
permitted for reputed importers having ACP status vide Public
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Notice No. 64 of 2005 and to 100% EOUs on a selective basis. The
DPD permission will be granted by the Commissioner of Customs
(Import) JNCH, on the basis of application by individual
importers. The facility notice sets out the complete procedure in
that behalf. The facility notice is dated 1st September, 2008 and
the petitioners, in the petition itself, have referred to these
arrangements made. They also refer to Public Notice No. 66 of
2008, whereby, respondent no. 9 was notified as a designated
CFS. Thus, it is apparent that on 11 th September, 2008 itself the
appointment of respondent no. 9 was notified. Beyond alleging
that the appointment of respondent no. 9 is arbitrary and that is
made without any opportunity to the petitioners or other CFSs,
we do not find any challenge raised to these arrangements. The
only pleading is that the DPD facility was optional and though
respondent no. 9 was notified as a designated CFS in a arbitrary
manner, that did not cause serious threat to the business and
existence of the CFSs like the petitioners at that point of time.
61. We are of the view that this silence of the petitioners and
parties like them for more than 8 years is eloquent enough. This
only indicates that so long as there is no threat to their business
opportunity or their commercial interest, the petitioners or their
representative association do not complain. The complaint now is
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motivated by pure commercial considerations. In these
circumstances, the contesting respondents are right in their
submission that we cannot take into account the petitioners'
commercial consideration or business prospects in dealing with
the challenge raised in the writ petition. Article 19(1)(g) of the
Constitution of India protects certain rights and particularly to
practice any profession or to carry on any occupation, trade or
business. However, clause (6) of Article 19 enables placing of
reasonable restrictions on this freedom. This clause clarifies that
nothing in sub-clause (g) of clause (1) of Article 19 shall affect
the operation of any existing law insofar as it imposes or prevent
the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right
conferred by sub-clause (g). The freedom, therefore, is not
absolute. In the interest of general public, the law may impose
restrictions on the freedom of the citizen to start or carry out his
business. Such a law cannot be, therefore, struck down as
violative of the mandate of Article 19(1)(g) of the Constitution of
India. A business loss to a particular person or diminution in
profits cannot be, therefore, the ground on which any action,
which is in public interest, can be interfered with. Therefore, at
the instance of the petitioners, the present public notices cannot
be quashed and set aside.
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62. In the public notices, copies of which are annexed to the
petition, the first one that is referred is Public Notice No. 161 of
2016 dated 28th November, 2016. A copy of this notice is
annexed as Exhibit 'J' at page 91 of the paper book. It states that
extension of facility of direct port delivery to main importers and
other steps taken for ease of doing business is contemplated
because the direct port delivery facility reduces the time and cost
of the importers considerably. In order to reduce dwell time and
cost associated with import at Nhava Sheva, it has been decided
to extend DPD permission to importers as mentioned in
Annexure 'A' enclosed to this public notice subject to the
conditions set out in this public notice. It is clarified that this
facility has been extended to the said importers on the basis of
the volume of transactions and on the basis of assessment made
by the office of the Commissioner of Customs, NS-III, Mumbai
Customs Zone-II, JNCH, Nhava Sheva regarding their ability to
comply with the conditions as specified in this public notice.
However, such permission for DPD may be withdrawn by the
Jurisdictional Commissioner of Customs at any time in case of
failure of adherence to the conditions or any violation.
63. The 8th respondent to the writ petition addressed a letter in
representative capacity. Thus, the CFS Association of India
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complained to the Chief Commissioner of Customs that the
association is registered as non-profit making body. It represents
the interest of 24 CFSs, who are its members. The designation of
Speedy in Public Notice No. 161 of 2016 read with Public Notice
No. 66 of 2008 has the effect of arbitrarily and unreasonably
discriminating against the members of the association. They do
not enjoy a level playing field for providing their services.
However, it is apparent from a reading of this representation at
page 107 of the paper book that the same refers to the earlier
Public Notice No. 66 of 2008 dated 11 th September, 2008. We
have already set out as to how no grievance was raised for more
than 8 years when the arrangement and particularly of
designation of respondent no. 9 was holding the field. Suddenly,
on account of the Public Notice No. 161 of 2016 that such a
representation was addressed.
64. Then, we have on record another Public Notice No. 180 of
2016 dated 19th December, 2016, which is at page 110 of the
paper book. This public notice refers to the prior public notices
and states that the DPD facility reduces the time and cost for
importers considerably. In order to reduce dwell time and cost
associated with import at Nhava Sheva, it has been decided to
extend DPD permission to importers as mentioned in Anexure 'A'
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enclosed to this public notice. The other conditions mentioned in
public notice dated 28th November, 2016 will remain the same.
Therefore, there is an enlargement and extension of facility to
those importers whose names are mentioned in Annexure 'A'.
Yet again, the eighth respondent association complains, by
addressing a letter dated 23rd December, 2016 Annexurer 'M'.
Once again the same grievance is raised that the members of
respondent no. 8 are deprived because of the designation of
respondent no. 9. It is suggested in this representation that the
member CFSs, who are equipped with appropriate facilities,
infrastructure and manpower will be in a position to offer the
same services as respondent no. 9. Therefore, the member CFSs
also be permitted to receive DPD container traffic. It is apparent
that the CFS association does not have a real, genuine and serious
grievance about the facility and designation of respondent no. 9,
but desire a participation and involvement of their members as
well.
65. The reference is then made to an advisory dated 27 th
December, 2016 issued by the fifth respondent, copy of which is
at page 132 of the paper book. That reads as under:-
No. S/22-Gen-100/2016-17AM(I) Date
27.12.2016
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To,
The Manager,
Navkar Corporation Ltd.
Somatane on kon - Sarla Road
Taluka Panvel, Dist. Raigad
Gentlemen,
Subject: Advisory in respect of Direct Port
Delivery - Reg.
Please refer to the facility of 'Direct Port Delivery'
extended to many Importers at this Custom House vide
Public Notice No. 161/2016 dated 28.11.2016 and Public
Notice No. 180/2016 dated 19.12.2016 along with
importers who have been granted permission for 'Direct
Port Delivery' earlier to the Public Notices mentioned
above.
In this connection, you are hereby directed that FCL
containers imported by Importers who have been accorded
'Direct Port Delivery' as mentioned above and which have
been facilitated by RMS and are meant for 'Direct Port
Delivery' shall not be accepted at CFS.
Non compliance of the above direction will be viewed
seriously and action will be initiated as per the provisions
of the Customs Act, 1962.
(Dhirendra Lal)
Addl. Commissioner of Customs
(Import)
NS - I, III & V
66. Then, what we have on record are two public notices dated
16th January, 2017. They are Public Notice Nos. 8 and 9 of 2017.
The copies of these notices are annexed as Exhibit 'O and Exhibit
'P' at pages 133 and 137 of the paper book.
67. In the first notice of 2017 (Public Notice No. 8 of 2017 dated
16th January, 2017), the office of the Commissioner of Customs
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refers to the representations by various stakeholders/members
from trade and then states that as a measure of trade facilitation
and ease of doing business, the points raised by these persons
have been examined and point-wise clarification/procedural
requirements are set out in this public notice. In Public Notice No.
9 of 2017, there is a reference made to meetings with the CFSs
within the jurisdiction of JNCH, at which, their views were
solicited in order to find a solution to logistic arrangements. It
was discussed that the JNPT is already preparing a logistic
solution in the form of engaging 5-7 major transporters, who will
provide transport services to DPD clients in efficient manner and
evacuation of containers from terminal will take place on best
pick up basis. This will facilitate further rationalisation of
shifting charges being charged by terminal operators. The DPD
clients can avail the aforesaid logistic solution. Then, various
suggestions on this aspect are referred and further directions
have been issued.
68. Once again, respondent no. 8 addressed a representation
and raised the very grievance. The association insisted on
complete transparency, but in principle does not seem to be
opposing the logistic arrangements. We do not see any reason for
the contesting respondents to consider these grievances
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favourably. The public notices only lay down a policy and when
the policy decision is aimed at reducing the port congestion,
facilitating the expeditious movement of imported cargo and by
which, there is an ease of doing business, then, all the more we do
not see any reason to interfere with the same. There is a
clarification given by the office of the Commissioner of Customs
on 18th January, 2017 at page 143 of the paper book and which
states that the procedure in regard to clearance of containers
beyond 48 hours has been prescribed in Public Notice No. 161 of
2016. It provides for circumstances of exceptional nature when
any DPD importer could not clear goods within 48 hours of
landing. Therefore, only in exceptional circumstances, the
procedure as prescribed in aforesaid public notices will be
applicable. Thus, the expectation was that the
consignment/cargo should be cleared within 48 hours and if for
exceptional reasons it cannot take place, then, there are clear
directions in that regard. There is a justification provided,
namely, that as an administrative arrangement for nominating a
CFS in transparent manner, the CFS closest to the port terminal
has been nominated. Hence, Speedy Multimode CFS, which is
located nearest to the port terminal was designated as default
CFS. This was done considering public interest so that any
default evacuation of containers (beyond 48 hours) will avoid
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congestion at the port. We are satisfied that these clarifications
were issued because of the representation of the stakeholders,
including respondent no. 8.
69. Then, we have Public Notice No. 16 of 2017, by which,
certain clarifications about the DPD facility have been issued,
particularly a measure is conceived so as to facilitate trade and it
is aimed at ease of doing business. Point wise
clarification/procedural requirements set out in this Public Notice
No. 16 of 2017 dated 9th February, 2017, therefore, carries the
matter further. However, the basic policy decision has already
been taken by earlier public notices. This point-wise clarification
further elaborately sets out the procedural requirements. There
are meetings held with the stakeholders as well.
70. It is in these circumstances that we do not find any reason
to interfere with the said public notices. Even Public Notice No.
27 of 2017 dated at Exhibit 'U' at page 153 refers to these very
aspects. It is not necessary to repeat what we have already held
hereinabove. As far as this Public Notice No. 27 of 2017 is
concerned, it came to be issued because there was a request from
the stakeholders to devise a system so that container is released
to DPD importer only after issue of delivery order even in case
where CFS is logistic service provider. Therefore, the further
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documents that are required to be obtained by DPD importer,
before the consignments are cleared, would ease the movement in
the sense if advance intimation is submitted by DPD importer to
shipping lines, then, the shipping lines can access the CFS. That
is how this public notice has been issued. It has been issued by
those dealing with administration of the port and the operations
at the same. In other words, those officers, who are empowered
by the Customs Act, 1962 and those who are administering the
port and managing affairs at the same are acting in coordination
so that there is ease of doing business. None of the importers
have any complaint. If they obtain the facilities to which they are
entitled, they are going to be benefited. They are also going to be
benefited by expeditious clearance of the imported goods. In the
circumstances, when the officials competent to exercise powers
under the Customs Act, 1962 have taken policy decisions as set
out in the public notices, then, all the more, we are disinclined to
interfere with the same in our extraordinary, equitable and
discretionary jurisdiction under Article 226 of the Constitution of
India. We do not find anything arbitrary, unreasonable or unfair
in the actions of these respondents. All the more, when they have
ensured transparency in the process of designation. The
representation that is made and copy of which is at page 154-A of
the paper book would indicate that not only the petitioners and
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respondent no. 8 are aggrieved and dissatisfied with the public
notices, but when the Commissioner introduced transparency in
the designation or appointment of CFS for DPD containers from
port terminals of JNCH, even that is objected to by some of the
petitioners/members of the association. There cannot be any
grievance when the public notices ensure transparency and
openness in the matter of designation of CFS. Now the concerned
and interested CFSs can participate and place their bids. Though
it is rightly termed as a limited tender, still, it takes care of the
grievance of the association that respondent no. 9 is arbitrarily
chosen and to the detriment of the other CFSs. Now other CFSs
have an opportunity to participate in the appointment or
designation process. Even then they are complaining because
they do not want a designation at all. They do not want a
designation for they are not interested in early or expeditious
clearance of the consignments at the port and reduce the
congestion at the port. If there is a confusion, chaos and delay
then, that may be advantageous to the petitioners, but it would be
certainly detrimental to the public interest. The larger public
interest has to be subserved and once that is ensured, then, the
same prevails over the commercial or business interests of the
petitioners. For their commercial or business motives, a decision
taken in public interest cannot be interfered with. The mandate
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of Articles 14 and 19(1)(g) of the Constitution of India are not
violated. The limited tender notice dated 17th March, 2017 is
really in furtherance of the policy measures and enunciated in
the public notice. That is why when that limited tender notice
was published, it referred to the relevant paragraphs of the public
notices and states that the detailed terms and conditions of the
limited tender notice are mentioned in Annexure 'A'. The limited
tender is to invite offers under the bids especially for designation
of CFSs for delivery of DPD containers from port terminals of
JNCH, Nhava Sheva to CFSs, if not cleared beyond prescribed
period and certain other circumstances as specified in the public
notices. It is in that sense the participation in the limited tender
is not restricted nor does it perpetuate the alleged monopoly of
respondent no. 9. Even the respondent no. 9 cannot claim a
absolute right simply because it can only receive such
containers/goods which are not cleared by the importers within
the above time limit of 48 hours. Thus, there is a arrangement
devised to move such cargo/goods out of the port. If such is the
intent and purpose and which is sought to be achieved and when
we find that even the members of respondent no. 8 association
and some of the petitioners have favourably responded to this
tender, then, all the more, we are disinclined to interfere in writ
jurisdiction.
J.V.Salunke,PA
Judgment-WP.3310.2017.doc
71. As a result of the above discussion, the writ petition fails.
Rule is discharged. However, there would be no order as to costs.
72. At this stage, Mr. Dwarkadas prays for continuation of the
arrangement prior to issuance of the limited tender and the latest
public notice No. 27 of 2017. This request is opposed by Mr. Jetly
by pointing out that the public notice has already been given
effect to, and equally, the limited tender and bids called for
pursuant thereto. Thus, the bids were received. They were duly
scrutinized and even the work order has been issued according to
Mr. Jetly. In view of the instructions received by Mr. Jetly, and
particularly on account of our reasoning in the judgment, the
request of Mr. Dwarkadas cannot be accepted. The request is
refused.
(PRAKASH.D.NAIK, J.) (S.C.DHARMADHIKARI, J.)
J.V.Salunke,PA
